Thread by @MMineiro_CNS

Oyez Oyez Oyez! Latest legal battle between House Democrats and the Trump administration over the McGahn subpoena underway in the D.C. Circuit.

The en banc hearing is being held by teleconference. I'll be sharing live updates from my living room. @CourthouseNews

The D.C. Circuit ruled 2-1 in February that the Constitution forbids federal judges from resolving interbranch disputes, including over White House advisers' testimony. courthousenews.com/dc-circuit-thr…

Today's circuit panel includes seven Democrat-appointed and two Republican-appointed judges.

Trump's two D.C. circuit appointees worked in the White House before taking the bench and are not participating in rehearing the case.

U.S. Circuit Judge Judith Rogers (Clinton) came down hard on DOJ in the first round of questioning, asking detailed questions on the court's role in separation of power...

ROGERS -- ”We are dealing with specific authority that the Constitution has provided...we must as the Supreme Court has pointed out, be wary in light of our concern of the separation of power and the preservation of the balance.”

Rogers filed a scathing dissent on the court's original ruling, calling Trump's defiance of congressional authority "blanket and unprecedented."

“Judicial intervention in this political tug of war risks damaging public confidence in the impartiality of this circuit," DOJ attorney Hashim Mooppan warns Judge Rogers.

U.S Circuit Judge Merrick Garland up now.

The former chief judge is throwing hypotheticals at DOJ attorney. Mooppan arguing that even if the House brought the suit with the Senate it would be unconstitutional.

Things just got heated between Judge Thomas Griffith with the GW Bush appointee slamming DOJ, after Mooppan claimed the Trump administration has not defied all House subpoenas.

"I'm sorry, I thought there was an across the board directive to not cooperate, to not testify?"

"There was never a blanket edict," Mooppan tells Griffith, arguing Trump's order not to testify applied to invalid impeachment subpoenas.

Slight technical snag during Griffith's questioning with another judge failing to mute and slipping in muffled reactions to DOJ arguments.

NOTE: D.C. Circuit is hearing McGahn with another House lawsuit over border wall funding because similar separation of power arguments underlie both cases. Background from @ByTimRyan who is listening in with me this morning: courthousenews.com/house-fights-t…

On Judge Patricia Millett (Obama) now asking DOJ if the House can never sue to enforce a subpoena "full stop."

Right, Mooppan replies: "the power to sue to enforce the law is invested in the executive not the legislature."

Judge Cornelia Pillard (Obama) questioning how "proportionate and practicable" the political options are that DOJ argues the House should turn to in place of suing to enforce subpoenas.

Pillard questions if House political tools are protective or destructive of the separation of powers in the cases at hand.

"I don’t think it would be right for this court to make it’s own judgement that the cost isn’t worth the benefit," Mooppan replies.

So far seven of the eight judges that have questioned seem to have gone past their allotted time. U.S Circuit Judge Karen Henderson, a George H. W. Bush appointee, was up first but didn't have any Qs for DOJ.

Chief Judge Sri Srinivasan will go last.

Henderson was on the original three-judge panel and wrote in her concurring opinion that political negotiations should be "the first—and, it is hoped, only—recourse to resolve the competing and powerful interests" in interbranch disputes.

Ok Chief Judge Srinivasan up now.

Starting with a Q on McGahn.

Q on standing, hypothetical if McGahn could sue under the same privileges at issue in the House suit. DOJ unsure on the answer.

DOJ responds McGahn couldn't sue if the case was based on the same testimony issues, not private/personal freedom of liberty issues to be free of detention for not complying with subpoena.

“We think it’s a false hypothetical because Congress can’t arrest an executive branch official," Mooppan argues.

“I take your position on the merits, thank you," Srinivasan says.

Now follow up questions.

Again, no Qs from Henderson. Seems she got enough from the DOJ briefs.

Rogers again with detailed questioning...looking back on the ability of senators to cast informed impeachment votes.

Mooppan again argues that the legislative's prerogative is to issue subpoenas, and the executive enforces subpoenas/the law.

More hypotheticals on McGahn filing a lawsuit as an individual, one from Judge Garland on the former White House counsel not wanting a House contempt vote to taint his reputation.

Responding to another from Judge Millet, DOJ points to the Kupperman case from last year.

Facing an impeachment subpoena and Trump's order not to testify, Bolton's deputy Charles Kupperman sued both parties last year leaving it up to the court to decide the interbranch dispute. courthousenews.com/judge-pledges-…

House attorney Douglas Letter up now. Always with a funny aside to the intertwined legal circles in Washington, Letter notes that Mooppan is his former boss.

Attorney Douglas Letter argues the House is trying to "keep the executive from becoming a monarch."

Megan Barbero joins Letter representing the House.

House Deputy General Counsel, Barbero argued McGahn in January before the three-judge circuit panel, and in the district court.

Again, no questions from Judge Henderson.

Judge Rogers seems ready for a detailed back and forth with Letter.

THIS from House attorney on impeachment:

“That is exactly over & over again what the president & his official government lawyers told the Senate of the United States: 'Go to court & enforce those subpoenas. And the president can ignore those subpoenas because you didn’t.'"

"I sat on the floor of the Senate for a very long number of hours," Letter says, recalling the impeachment trial.

Great question from Rogers on why the House legislative tools aren't enough: “If first you don’t succeed, try try again. What’s wrong with that approach?"

Letter argues the approach makes the House subpoenas into a joke.

More than 2 hours into arguments now. Live stream lists 548 listeners. Follow along:

Sounded like Judge Griffith's cell might have gone off just now at the end of his questioning.

I heard a judge's dog chime into arguments last week during a district hearing. Reminders that the judges who usually sit high on the bench may very well be in their PJs right now.

Back on Millett, questioning Letter on the border wall case and conflicting powers in Article II and Article I.

"If the president says I want to move the third division from Germany to France...the president could do that." But the executive couldn't double the amount of money for housing programs under Art I, Letter argues.

Nearing the end. No questions on the second round of follow up.

Henderson -- no
Rogers -- no
Tatel -- no
Garland -- no
Griffith -- no
Millet -- no more questions thank you
Pillard -- that’s also it for me thank you
Wilkins -- so the pressure is on me to break the chain here?
*Laughs from the panel*
Wilkins -- no, no further questions

Mooppan closing out: “We know that that Supreme Court has emphasized history and tradition...that is the proper approach for a lower federal court."

Barbero up for rebuttal but the feed cut out briefly.

“Congress needs information. It is the lifeblood of Congress’ exercise of its Article I power," House attorney Megan Barbero.

“The courthouse doors should not be uniquely closed to congressional plaintiffs after 50 years," House attorney Megan Barbero argues.

Case submitted after three hours of arguments. That's a wrap.

In an en banc hearing that could upend the balance of power in Washington, the D.C. Circuit appeared ready to enforce the House subpoena to former White House counsel Don McGahn, while arguments on border wall funding faced a tougher line of questioning. courthousenews.com/en-banc-dc-cir…