Did Congress Abuse Their Subpoena Power in Their Rush to Impeach Trump?

            The topic of discussion for this Constitution Monday has to do with the separations of power as outlined in the United States Constitution. The Founders deliberately divided the government into three branch – Executive, Legislative, and Judicial. The branches have equal authority but different responsibilities. The Legislative Branch has the responsibility to create laws. The Executive Branch has the responsibility to execute the laws or to see that they are obeyed. The Judicial Branch has the responsibility to determine if the laws are constitutional.


            The Democrats in the House of Representatives thought that they had the authority to force people in the Executive Branch to testify before Congress. Specifically, they sought a court order to force former White House counsel Don McGahn to answer congressional subpoenas in their effort to impeach Donald Trump. The Executive Branch said, “No way!”


            Last week, the U.S. Court of Appeals for the District of Columbia Circuit made a 2-1 decision in Trump’s favor. The court basically said that it did not have the authority to resolve the differences between the Legislative and Executive Branches. However, the court reminded Congress that they had remedies available outside the court system. In a decision written by Appellate Judge Thomas Griffith, the court said:

We cannot decide this case without declaring the actions of one [branch of government] or the other unconstitutional….

If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual “overseer[s]” of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case.

Congress considered McGahn to be a key witness in their efforts to impeach Trump. After Robert Mueller ended his two-year investigation of Trump, he cited McGahn’s name in his report “more than 150 times. Then Congress tried to force McGahn to testify about his involvement in Mueller’s investigation, but he defied their committee subpoenas.

According to constitutional law expert Jonathan Turley, the ruling by the court has significant implications on the efforts of Democrats to impeach Trump. The law professor from George Washington University Law School said that Trump was “vindicated” by the court ruling in the second article of impeachment. This article claimed that Trump had obstructed Congress by refusing to allow officials in the Executive Branch to testify to Congress.

The White House is vindicated in showing that it had valid constitutional arguments to make – arguments ridiculed at the Senate trial….

I do not agree with the court’s analysis but I felt that Trump had a right to seek judicial review. Now that judicial review has shown that the court agrees with his constitutional position. It reaffirms the historic blunder of the House in rushing this impeachment….

Turley continued by calling the second article of impeachment “a case of prosecutorial excess, if not abuse” as shown by the court’s ruling. Democrats have until March 9 to decide if they want to accept the ruling or appeal it. If they decide to appeal it, they can request that the case be heard again by the same three judges or request a hearing before the entire eleven-person D.C. Circuit Court. If they are wise, they will accept the ruling and cut their losses. However, the Democrats have not shown much wisdom over the past four years, so no one knows what they will do.