From today’s New York Times:
A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.
In a ruling that could have far-reaching consequences for executive branch secrecy powers long after Mr. Trump leaves office, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the House Judiciary Committee against Mr. Trump’s former White House counsel, Donald F. McGahn II.
On Mr. Trump’s instructions, Mr. McGahn defied a House subpoena seeking to force him to testify about Mr. Trump’s efforts to obstruct the Russia investigation. The House sued him, seeking a judicial order that he show up to testify, and won in district court in November.
But two of the three appeals court judges ruled on Friday that the Constitution gave the House no standing to file any such lawsuit in what they characterized as a political dispute with the executive branch. If their decision stands, its reasoning would shut the door to judicial recourse whenever a president directs a subordinate not to cooperate with congressional oversight investigations.
“The committee now seeks to invoke this court’s jurisdiction to enforce its subpoena,” wrote Judge Thomas B. Griffith. The Justice Department, “on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”
“We agree and dismiss this case,” he wrote.
From The Dual State: A Contribution to the Theory of Dictatorship by Ernst Fraenkel (1940):
More than 300 years ago a similar demand was made in England. King James I, in his famous message to the Star Chamber (June 20, 1616), declared that in political questions the decision rested with the Crown and not with the Courts.
“Encroach not upon the prerogative of the Crown. If there fall out a question that concerns my prerogative or mystery of State, deal not with it till you consult with the King or his Council or both; for they are transcendent matters . . . As for the absolute prerogative of the Crown, that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and blasphemy to dispute what God can do . . . so it is presumption and high contempt in a subject to dispute what a King can do, or say that a King cannot do this or that.”
The straightforwardness of this message has scarcely been surpassed by any spokesman of the Third Reich. (36)