Thread by @ZoeTillman

Hello from my living room, where I'll be streaming arguments at 9:30am before the en banc DC Circuit in two blockbuster cases about whether/under what circumstances Congress can take the executive branch to court — the Don McGahn subpoena fight, and a border wall funding dispute.

Sadly, the stream of this morning's arguments will only be audio. But the good news that anyone can listen, here's the link: cadc.uscourts.gov/internet/sixty…

In the McGahn subpoena fight, a district judge ruled Congress could sue to enforce a subpoena, and she rejected the Trump admin's argument that past/present senior presidential advisers enjoyed "absolute immunity" from being compelled to testify.

On appeal, in a 2-1 decision, a DC Circuit panel in Feb. reversed the on the threshhold issue of whether Congress could take the admin to court — the majority said no. The panel didn't get into the absolute immunity issue, because no standing = case over
buzzfeednews.com/article/domini…

House Dems petitioned the DC Circuit to rehear the case en banc. Trump's two appointees to the DC Circuit, Judges Greg Katsas and Neomi Rao, are not participating. Judges don't usually explain why they recuse. Katsas was McGahn's deputy; Rao was also a senior Trump admin official

In the border wall funding case (re: Trump redirecting other funds to pay for border wall construction), a district judge ruled that House Dems could not take the executive branch to court to resolve this kind of interbranch fight: buzzfeednews.com/article/zoetil…

The case was argued before a three-judge panel in Feb., but then the court decided to hear the standing issues in both cases en banc. Judge David Sentelle, a senior judge who is on the border wall case panel, will participate in en banc args this morning for that case

I posted the link from the court's website earlier, but here's a link to the YouTube page where they'll be streaming the audio:

Features a nice shot of the E. Barrett Prettyman Courthouse. Remember being in other buildings? Those were the days.

If you're wondering how the court is handling en banc args, Chief Judge Srinivasan explains at the start: Each lawyers gets three minutes for an intro. Then the judges will each get to ask questions going in order of seniority, with Srinivasan waiting until the end of the round.

Judge Karen LeCraft Henderson has no questions for DOJ counsel Hashim Mooppan. Next up, Judge Judith Rogers: "Good morning Mr. Mooppan, we meet again." (Rogers wrote the dissenting opinion in the McGahn panel decision)

Rogers: "Are you of the view that there can be no role for the court in terms of preserving the separation of powers?"

Mooppan: Courts can play a role in preserving separation of powers in cases brought by private parties, but no tradition of the branches suing each other.

Rogers and Mooppan are tangling over how much it matters that there isn't a history of Congress suing the exec branch. Mooppan argues that when one branch thinks the other is abusing its powers, it must use its own powers to address it, and Congress never had litigation as a tool

Judge David Tatel is up. He's asking about the Mazars/Deutsche Bank subpoena cases and relation to the McGahn case — isn't that a separation of powers case too? Mooppan argues they're different because in Mazars, Trump is claiming a personal interest/injury

Judge Merrick Garland is up. He's posing hypos about situations where it wouldn't be clear who was injured besides Congress to understand the govt's arg that only private parties could sue over exec branch actions...

...For ex., Garland asks, what if a healthcare law were defeated, and the pres instructed Treasury to pay for health insurance for Americans who can't afford it, and only people who wanted the $ get it? Who would be the injured party who could sue, if not Congress, Garland asks.

Mooppan says that he can't think of a possible party on the spot, but there are sometimes "surprising" parties who end up having standing. Garland expresses concern about the exec having unchecked power - Mooppan says Congress has tools to check the exec branch besides lawsuits

Judge Thomas Griffith is up. He asks about admin having a blanket policy of refusing to comply with congressional subpoenas. Mooppan disputes that, saying the admin has considered certain categories of subpoenas improper or unlawful, but there was never a "blanket edict"

Trump in April 2019: "We’re fighting all the subpoenas ... These aren’t, like, impartial people. The Democrats are trying to win 2020." nytimes.com/2019/04/24/us/…

Moment of tension: Judge Patricia Millett reads a footnote in a SCOTUS opinion she's asking about, Mooppan says he thinks she's "misreading" the footnote and its location in the opinion. Millett, sounding surprised, says she was reading it word-for-word...

...Mooppan clarifies that he meant the judge was misreading the location of the footnote and its context in the opinion

Judge Nina Pillard asks about Congress' options if it can't sue over a subpoena, such as holding someone in contempt and ordering arrest. Mooppan says re: the exec branch, House could hold up a pres's legislative priorities, and Senate could also hold up nominations

Pillard wonders about whether it should matter to the court if the only options available to Congress are "huge, blunt, disproportionate political nuclear options" (deleted prev. tweet that was missing the word "political" in that quote)

(Legal eagles may raise an eyebrow at Pillard's use of the term "nuclear options" politico.com/story/2013/11/…)

During 2nd round, Garland asks another hypo — could McGahn file suit to protect against the reputational injury of a contempt vote and argue he was just following prez's directive. Mooppan demurs, says it's not clear that would be the kind of injury that gives standing

Garland also asks if an individual member of Congress could just file a FOIA request for the docs it wants from the exec branch and sue to enforce that. Mooppan said they'd have standing, just like any other person who files a FOIA, but on the merits there'd be exemption issues

Two hours in, the court has finished questioning the DOJ lawyer (he'll get a few minutes for rebuttal at the end). Next up: Douglas Letter and Megan Barbero, lawyers for House Dems

Rogers asks Letter how much history is necessary in assessing standing, re: SCOTUS decision in Raines, which is a big one at issue in these cases. Letter said history alone wasn't meant to be dispositive, and the committee's injury here had a long "historical pedigree"

(If you're curious about Raines: oyez.org/cases/1996/96-…)

Rogers asks why Congress can't use the other options available to enforce subpoenas. Letter says no one thinks it's a good idea to say Congress can't file lawsuits and instead has to go out and arrest people. As for impeachment, Letter says: "Been there, done that."

(Phew the DC Circuit feed cut out for a few moments, but it's back up now!)

Tatel asked if Congress could sue if the prez declared war w/out a congressional declaration. Letter hedges, he's not sure, but says the interests here are different — informational interest re: McGahn, and constitutional prohibition re: appropropriations in the border wall case

Re: the border wall case, Griffith asks why the approps clause makes a difference — why couldn't Congress then sue claiming violations of other clauses. Letter says the approps clause is unique, and founders had a specific intent in saying the exec can't spend $ not appropriated

Letter: DOJ lawyer "was saying that the alternatives are, Congress should impeach without necessary information and should pass statutes without necessary information. How can that possibly be the right answer?"

Re: border wall case, Pillard asks why the court wouldn't be opening the door to more cases of Congress suing over approps. Letter says circumstances here were so unusual (Trump saying he's going to build w/out Congress, the shutdown, etc.) that there isn't a floodgates problem

Wilkins asks if House Dems offered any accommodations for McGahn's testimony. Letter says yes, they went through multiple rounds of negotiations with WH counsel until it became clear that the president would be asserting absolute immunity from testifying

After an hour of questions (we're three hours in to the hearing), the judges are done with House Dems' lawyer. DOJ is now getting a few minutes for rebuttal.