WASHINGTON: US appeals court judges grilled a Trump administration lawyer on Tuesday about its arguments that the House of Representatives cannot sue to enforce subpoenas demanding testimony or documents.

Holding arguments by phone, the US Court of Appeals for the District of Columbia Circuit considered whether a House committee can sue to enforce a subpoena for testimony from former White House Counsel Donald McGahn.

Disputes between the political branches about their institutional prerogatives have occurred since the founding, but lawsuits between them are a novel and unsanctioned tactic, Hashim Mooppan, a Justice Department lawyer arguing for the Trump administration, told the court during the arguments, which are ongoing.

Judge Judith Rogers appeared sceptical of the notion that courts cannot intervene when the executive branch and Congress are at odds. “Are you of the view there can be no role for the courts in terms of preserving the separation of powers?” she asked Mooppan.

Judge David Tatel, referencing separate cases now at the Supreme Court concerning the House’s effort to obtain President Donald Trump’s financial records, questioned whether the Justice Department’s arguments are consistent. The Justice Department has said Trump can sue to block a subpoena but the House cannot sue to enforce one.

Judge Nina Pillard probed Mooppan on the scope of his argument that Congress can use political tools like withholding appropriations to force compliance with its subpoenas.

I’m struggling to see how that theory applies” in the McGahn case because Congress has a long history of obtaining information from the executive branch, she added.

A divided three-judge panel of the court ruled for Trump in February, saying the court had no place in settling the closely watched dispute between the executive and legislative branches of the US government.

The court said that nine of its 11 judges would reconsider that ruling.

Two judges who were appointed by Trump to the court, Neomi Rao and Gregory Katsas, are not participating, likely because both previously worked in the Trump administration.

Published in Dawn, April 29th, 2020