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politico – Court of Appeal supports subpoena power for minorities in House

The Trump administration argued lawmakers lacked standing to look to the courts to force disclosure of records, but the majority of the DC Circuit panel disagreed.

“The separation of powers, it must be remembered, is not a one-way street leading to the expansion of executive power”, wrote Judge Patricia Millett, appointed by President Barack Obama. “When political branches duly enact a law that confers a right which the courts have long recognized as prejudicial under Article III, good adherence to the limited constitutional role of federal courts promotes judicial respect and recognition. of this prejudice. ”

Justice Douglas Ginsburg was dissenting, arguing that lawmakers were essentially seeking to hijack the power of the entire House and should not be allowed to use the courts for that purpose.

“The consequences of allowing a handful of members to enforce requests for executive documents in court without regard to the wishes of the majority of the House will surely be ruinous,” wrote Ginsburg, appointed by President Ronald Reagan . “Judicial execution of requests for [the statute] allow the minority party (or even an ideological fringe of the minority party) to distract and harass executive agencies and their top officials. “

But the majority said Ginsburg’s interpretation would essentially leave a law meant to empower the minority at the mercy of the majority in the House.

“To require members who so request to obtain execution by a majority of the Committee or of the House, as the dissenting opinion proposes, would be to deprive the statute of all meaning,” wrote Millett, joined by the Judge David Tatel, appointed by President Bill Clinton. .

The case stems from a dispute that arose shortly after Trump took office. Representative Elijah Cummings (D-Md.), Then a senior member of the Oversight Committee, requested details of Trump International Hotel finances of the General Service Administration. After being initially rejected, he made a formal request under federal law empowering seven members of his panel to force disclosure of information.

Democrats wanted to know what action the GSA had taken to determine whether Trump had violated his rental agreement and provide monthly reports that Trump’s company submitted to the agency regarding the hotel’s income and expenses. The GSA ignored the request and followed two for months.

The agency ultimately rejected all three requests and argued that “individual members of Congress, including members of the rank minority, do not have the authority to supervise in the absence of a specific delegation by a hall. plenary, a committee or a subcommittee. ”

The dispute over the Trump Hotel files may soon be moot. It seems likely that President-elect Joe Biden’s new administration would be very receptive to congressional requests for information about Trump’s business transactions, especially the benefits his companies have received from the federal government.

However, the appeals court ruling could set a precedent that would last for years, if not decades, upholding the rarely used power of the House minority to compel disclosure of information that the majority of the Oversight Committee does not want. not search.

At the next Congress, that power would fall to the Republicans on the panel when they inquire about Biden and his administration.

The justice ministry could request a new hearing before the full court of appeal or ask the Supreme Court to take up the case.

The ruling comes as the entire DC Circuit bench contemplates another round of litigation in a House Judiciary Committee lawsuit to compel the testimony of former White House attorney Don McGahn, a star witness in the investigation of special advocate Robert Mueller. The judges in the Trump Hotel case repeatedly cited their previous rulings in the McGahn dispute and stressed that Congress has the inherent power to subpoena and demand information.

The 34-page majority opinion drew repeated parallels between the power of the seven-member rule in the House and the rights enjoyed by members of the public under the Freedom of Information Act.

“It is no different for reasons of standing than if those same applicants had filed a FOIA application for the same information,” Millett insisted.

However, Ginsburg dismissed this analogy, calling it “off track.”

“The GSA has already given complainant-members all the information to which they are entitled under the FOIA,” the judge said.

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