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What Comes Next?

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A panel of three D.C. Circuit judges rejected the House Judiciary Committee’s request for testimony from Don McGahn, former White House Counsel, finding that the Committee lacked Article III standing to enforce a congressional subpoena in federal court. Framing the issue as one of separation of powers, the court declined to intervene in what it described as a purely political dispute between the executive and legislative branches. The ruling was a significant setback for the House in their efforts to force the Trump administration to comply with Congressional subpoenas and to yield to Congressional oversight more generally. Interestingly, in March, the D.C. Circuit Court of Appeals vacated the three-judge panel’s decision and opted to hold a rehearing en banc on April 28, 2020. Despite court proceedings around the country being delayed as a result of COVID-19, it is expected that this hearing will go forward as planned. This article looks at what we can expect to see in that hearing and what impact a decision could have.

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