Appeals court backs subpoena-like power for minority in House

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A divided federal appeals court has upheld the power of legislators in the House minority to demand records from the executive branch.

Acting in a dispute over records related to President Donald Trump’s luxury Trump International Hotel, the D.C. Circuit Court of Appeals ruled on Tuesday, 2-1, that lawmakers can resort to the courts to enforce an obscure statute known as the seven-member rule.

The law, which dates to 1928, allows any seven members of the House Government Reform and Oversight Committee to demand that any executive agency turn over any requested information related to the panel’s broad mandate.

The Trump administration argued that the lawmakers lacked standing to turn to the courts to force disclosure of the records, but the majority on the D.C. Circuit panel disagreed.

“The separation of powers, it must be remembered, is not a one-way street that runs to the aggrandizement of the Executive Branch,” wrote Judge Patricia Millett, an appointee of President Barack Obama. “When the Political Branches duly enact a statute that confers a right, the impairment of which courts have long recognized to be an Article III injury, proper adherence to the limited constitutional role of the federal courts favors judicial respect for and recognition of that injury.”

Judge Douglas Ginsburg dissented, arguing that the lawmakers were essentially seeking to hijack the power of the entire House and should not be permitted to resort to the courts for that purpose.

“The consequences of allowing a handful of members to enforce in court demands for Executive Branch documents without regard to the wishes of the House majority are sure to be ruinous,” wrote Ginsburg, an appointee of President Ronald Reagan. “Judicial enforcement of requests under [the statute] will allow the minority party (or even an ideological fringe of the minority party) to distract and harass Executive agencies and their most senior officials.”

But the majority said Ginsburg’s interpretation would essentially leave a law meant to empower the minority at the mercy of the House majority.

“To require the requesting members to obtain enforcement by a majority of the Committee or Chamber, as the Dissenting Opinion proposes, would be to empty the statute of all meaning,” wrote Millett, joined by Judge David Tatel, an appointee of President Bill Clinton.

The case stems from a dispute that arose shortly after Trump took office. Rep. Elijah Cummings (D-Md.), then the ranking member of the Oversight Committee, sought details about the finances of the Trump International Hotel from the General Services Administration. After initially being rebuffed, he made a formal request under the federal law empowering seven members of his panel to compel the release of information.

The Democrats wanted to know what steps the GSA had taken to address whether Trump had breached his lease agreement and to provide monthly reports that Trump’s company submitted to the agency regarding the hotel’s revenue and expenses. The GSA ignored the request, and two follow-ups, for months.

The agency ultimately rejected all three requests and contended that “individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”

The dispute over the records related to the Trump hotel could well be moot soon. It seems likely that the incoming administration of President-elect Joe Biden would be highly receptive to congressional requests for information on Trump’s business dealings, particularly benefits that his companies received from the federal government.

However, the ruling from the appeals court could set a precedent that lasts for years or even decades, upholding the rarely used power of the House minority to compel the release of information that the Oversight Committee majority may not wish to seek.

In the upcoming Congress, that power would accrue to Republicans on the panel as they make inquiries about Biden and his administration.

The Justice Department could seek a new hearing before the full appeals court or petition the Supreme Court to take up the case.

The ruling comes as the full bench of the D.C. Circuit is considering another round of litigation in a House Judiciary Committee suit to compel testimony from former White House counsel Don McGahn, a star witness in special counsel Robert Mueller’s investigation. The judges in the Trump hotel case repeatedly cited their earlier rulings in the McGahn dispute and emphasized that Congress has the inherent power to subpoena and demand information.

The 34-page majority opinion drew repeated parallels between the power of the House’s seven-member rule and the rights enjoyed by the members of the public under the Freedom of Information Act.

“It is no different for standing purposes than if these same Requesters had filed a FOIA request for the same information,” Millett insisted.

However, Ginsburg rejected that analogy, calling it “off track.”

“The GSA has already given the Plaintiff-Members all the information to which they were entitled under the FOIA,” the judge said.

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