United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 3, 2020 Decided February 28, 2020 No. 19-5331 COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, APPELLEE v. DONALD F. MCGAHN, II, APPELLANT Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02379) Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Mark R. Freeman, Michael S. Raab, and Martin Totaro, Attorneys. Megan Barbero, Associate General Counsel, U.S. House of Representatives, argued the cause for appellee. With her on the briefs were Douglas N. Letter, General Counsel, Todd B. Tatelman, Deputy General Counsel, Josephine Morse, Associate General Counsel, Adam A. Grogg and William E. Havemann, Assistant General Counsel, Jonathan B. Schwartz, Attorney, and Annie L. Owens. 2 Steven A. Hirsch, Justin Florence, Jamila G. Benkato, and Cameron O. Kistler were on the brief for amici curiae Republican Legal Experts, et al. in support of plaintiff- appellee. Before: HENDERSON, ROGERS, and GRIFFITH, Circuit Judges. Opinion for the Court filed by Circuit Judge GRIFFITH. Concurring opinion filed by Circuit Judge HENDERSON. Dissenting opinion filed by Circuit Judge ROGERS. GRIFFITH, Circuit Judge: The Committee on the Judiciary of the House of Representatives ordered the former White House Counsel, Donald F. McGahn, II, to testify before the Committee. President Donald Trump instructed McGahn to refuse, asserting that certain presidential advisers possess “absolute testimonial immunity” from compelled congressional process. The Committee now seeks to invoke this court’s jurisdiction to enforce its subpoena. The Department of Justice (DOJ), 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. I A In May 2017, the Deputy Attorney General appointed Special Counsel Robert Mueller to investigate whether President Trump’s campaign coordinated with the Russian government during the 2016 presidential election. See ROBERT 3 S. MUELLER, III, REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION, vol. I, at 1-2 (2019). This investigation’s scope soon expanded when the President took several actions that “raised questions about whether he had obstructed justice.” Id. vol. II, at 1. As part of his investigation, the Special Counsel interviewed McGahn, who was then the White House Counsel. McGahn witnessed several of the President’s efforts to thwart the Special Counsel’s investigation, including the President’s aborted attempt to fire the Special Counsel. Id. vol. II, at 77-90, 113-20; see also Committee Br. 6 n.3. On March 4, 2019, pursuing leads developed by the Special Counsel, the Committee began an investigation into the President’s possible “obstruction of justice, public corruption, and other abuses of power.” J.A. 542. The Committee sent a letter asking McGahn to turn over certain White House documents relating to the President’s possible obstruction, but McGahn did not comply. On April 22, the Committee issued a duly authorized subpoena ordering McGahn to produce these documents and to testify before ...
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