D.C. Circuit Takes McGahn Case En Banc (Again)

Unless President Trump is re-elected, it is not clear this will matter.

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Today the U.S. Court of Appeals for the D.C. Circuit granted the House of Representatives' petition for rehearing en banc in Committee on the Judiciary v. McGahn.  This is the the second time en banc rehearing has been granted in this case, but it may not matter.

In February, a divided panel of the court concluded the House lacked standing to seek enforcement of a subpoena ordering the testimony of former White House Counsel Don McGahn. In August, this decision was reversed by the en banc court. On remand, the panel again ruled against the House, concluding the House lacked a cause of action to sue. Judge Griffith wrote both panel opinions, the latter of which was released on his last day on the court.

Today's order vacated the panel opinion and set a briefing schedule for the parties. Of note, the court directed the parties "to address in their briefs whether the case would become moot when the Committee's subpoena expires upon the conclusion of the 116th Congress." This would seem particularly relevant because the Court will not hear oral argument in the case until February 23, by which time there will be a new Congress (and perhaps a new President). Either way, the panel decision has been vacated and is no longer the law of the circuit.

If the court reaches the merits, it seems quite likely the House will prevail. Judge Griffith is no longer on the Court, and neither Judge Katsas nor Judge Rao is participating in the case (presumably because they both worked with McGahn in the White House). That said, a conclusion that the case is moot is certainly possible.