D.C. Circuit

Summary: En Banc D.C. Circuit Rules that House Committee has Standing to Sue to Enforce McGahn Subpoena

By Rachel Bercovitz, Charlotte Butash
Thursday, August 13, 2020, 1:44 PM

On August 7, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, decided Committee on the Judiciary v. McGahn. The case concerns whether the House Judiciary Committee has standing to seek enforcement in federal court of its subpoena to former White House Counsel Don McGahn. A majority of the court held that the committee does have standing. Judge Judith Rogers wrote the majority opinion, while Judges Karen Henderson and Thomas Griffith filed dissenting opinions. Judges Gregory Katsas and Neomi Rao, who had both worked in the Trump Administration, did not participate.

The court remanded the case to the original three-judge panel to address two additional threshold questions—whether the D.C. Circuit has authority to adjudicate the committee’s claim (known as subject matter jurisdiction) and whether the committee has a cause of action to bring its claim in federal court—along with, potentially, the merits of the case. Judge Griffith, who wrote the vacated panel decision, is set to retire on September 1, so another D.C. Circuit judge may take his place on the panel on remand.

In a separate order issued the same day, the full court also remanded House of Representatives v. Mnuchin to the original panel for reconsideration in light of its decision in McGahn. The en banc court reheard Mnuchin together with McGahn in April. Mnuchin addresses whether the House has standing to sue over the Trump Administration's reallocation of funds to the border wall.

Factual Background and Procedural History

As part of Special Counsel Robert Mueller’s investigation into alleged Russian interference in the 2016 election and into subsequent allegations of obstruction of justice, investigators from the special counsel’s office interviewed then-White House Counsel Don McGahn on several occasions. After Mueller issued his report, the House Judiciary Committee opened an investigation into allegations of executive branch misconduct. The committee requested that McGahn turn over any documents related to President Trump’s alleged efforts to obstruct the Mueller investigation. McGahn declined to respond to the request, and the committee issued a subpoena for documents and for McGahn’s in-person testimony. Some dialogue followed: White House Counsel Pat Cipollone advised the committee that Acting Chief of Staff to the President Mick Mulvaney had instructed McGahn not to comply with the subpoena; in response, the committee reiterated to McGahn his obligation to comply. On May 20—the day before McGahn was ordered to appear before the committee—Cipollone informed the committee that the president had instructed McGahn not to testify. Cipollone referred the committee to a May 2019 opinion by the Justice Department’s Office of Legal Counsel providing that certain presidential advisers, including White House counsel, possess “absolute testimonial immunity.”

In turn, the committee sued McGahn in the U.S. District Court for the District of Columbia to enforce its subpoena, asking the court to declare that McGahn’s refusal to testify was “without legal justification.” The district court agreed and instructed McGahn to appear before Congress. McGahn appealed.

A divided three-judge panel of the D.C. Circuit reversed the district court’s order. The panel concluded that federal courts have no jurisdiction to resolve disputes between the president and Congress over access to testimony and documents from executive branch officials. (A more detailed description of the panel decision can be found here.)

The House Judiciary Committee then filed a petition for rehearing en banc. The full court granted the petition, vacating the panel decision. After hearing oral arguments in April, the court issued its en banc decision on August 7, holding the committee has Article III standing to sue in federal court.

Majority Opinion

The majority opinion opens by discussing Congress’s constitutional responsibilities: legislation, oversight and impeachment. To properly discharge those responsibilities, the majority states, Congress must have access to relevant information. When the House Judiciary Committee was denied the information necessary to conduct its constitutional responsibilities, it suffered a concrete and particularized injury that is sufficient to convey Article III standing.

The majority emphasizes that the separation of powers and historical practice do not require a different result (contrary to what McGahn had argued and the original panel had held). In fact, the majority argued, given that the proper functioning of the legislative branch depends on its ability to obtain information, constitutional structure and historical practice support Article III standing in cases to enforce congressional subpoenas.

To set the stage for its analysis, the majority describes the contours of Article III standing. For a plaintiff to have standing to sue in federal court, the plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” The asserted injury must be “concrete and particularized” and “actual or imminent.” The majority emphasizes that, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court confirmed that these general principles of standing apply when legislative bodies assert institutional injuries in federal court. But because reaching the merits here would require the court to decide whether a branch of the federal government violated the constitution, the standing inquiry must be “especially rigorous.”

As the first step of the standing inquiry, the majority determines that the Judiciary Committee’s asserted injury is concrete. It observes that Congress has the power to investigate, and in turn, the power to issue subpoenas for relevant information. The majority notes that the recipient of a congressional subpoena is obligated by law to comply. When McGahn refused to testify in response to the committee’s subpoena, then, he denied the committee “something to which it alleges it is entitled by law.”

In reaching this conclusion, the majority recounts the history of Congress’s investigative powers. The court argues that congressional subpoenas are historically based in the practices of the English Parliament and were issued by early American congresses. In the majority’s account, Supreme Court precedent and past practice confirm Congress’s ability to issue subpoenas as part of its legislative, investigatory and impeachment powers. Without adequate information–obtained in part by compelling testimony from those with relevant knowledge–Congress would be unable to effectively discharge its constitutional duties.

The majority then turns to Supreme Court precedent in other contexts, which establishes that a concrete injury in fact exists when the government denies parties information that it is required to disclose. Similarly, because the House is entitled to seek and obtain information, McGahn’s denial of that information amounts to an informational injury that can support standing. The majority notes that each house of Congress has standing to sue a private party in federal court to enforce a subpoena. The result should not be different here, the court concludes, even if the defendant is another branch of government. After all, the standing inquiry is not focused on the identity of the defendant but rather on “whether the plaintiff is the proper party to bring the lawsuit.”

The majority then turns to the question of whether the asserted injury is particularized––meaning, whether it is specific to the plaintiff. The majority describes the Supreme Court’s 2019 analysis in Virginia House of Delegates v. Bethune-Hill, in which the court took issue with the mismatch between the party bringing suit (the House of Delegates) and the party suffering the asserted harm (both houses of the Virginia legislature). The majority understands the notion of a “match” in Bethune-Hill to cut to the question of particularization––namely, whether “the claimed injury is personal to the plaintiff” or is “shared by a larger group of which the plaintiff is only a component.” Here, the Judiciary Committee subpoenaed McGahn on behalf of, and with the authorization of, the House of Representatives. The House of Representatives may unilaterally issue subpoenas to support its constitutional duties, without consent or input from the Senate. Because here the committee is an institutional plaintiff asserting an institutional injury with no mismatch between the harm suffered and the party bringing suit, the injury is particularized.

The three-pronged standing inquiry also requires that an asserted injury be “fairly traceable to the challenged conduct” and “likely to be redressed by a favorable [judicial] decision.” Both inquiries, the majority asserts, are readily met here. McGahn’s refusal to testify denies the committee information to which it claims it is entitled. And declaratory and injunctive relief from the court would remedy that injury. Because the committee satisfies these final traceability and redressability inquiries, the majority determines it has standing.

Separation of Powers

The majority recognizes that this case raises separation of powers considerations. But the majority asserts that recognizing Article III standing here is consistent with the separation of powers and would not needlessly disturb the political branches’ longstanding practices of resolving interbranch information disputes outside of court.

Addressing each of McGahn’s points in turn, the majority suggests that some of his separation of powers arguments may not actually go to the question of whether the committee has standing. The majority emphasizes that the purpose of standing doctrine is to confine the judiciary to its proper constitutional sphere; “merely invoking separation of powers principles” will not defeat standing in an interbranch dispute.

While McGahn relies on the D.C. Circuit’s 1999 opinion in Chenoweth v. Clinton and the Supreme Court’s decision in Arizona State Legislature to argue that the court must merge its separation of powers and standing analyses, the majority asserts that Chenoweth was limited to suits brought by individual legislators. And when the Supreme Court in Arizona State Legislature stated that a suit between Congress and the president would raise separation of powers concerns that a suit by a state legislature did not, the court did not hold that those concerns should be considered separately to preclude Congress from filing such a suit. Rather, the majority asserts, the Supreme Court only reiterated that the standing analysis should be “especially rigorous” when the merits of the case would require the court to determine whether a branch of the federal government acted unconstitutionally.

Regardless, the majority states, it need not resolve interpretation of these cases because McGahn’s separation of powers arguments against standing are unpersuasive. The majority points to the Supreme Court’s recent decision in Trump v. Mazars, in which the court adjudicated the merits of an interbranch information dispute over the personal papers of the president, his family and associated businesses. In Mazars, the majority argues, the Supreme Court focused on the ways in which a potentially limitless congressional subpoena power could transform the accommodation process between the political branches. But, the majority notes, recognizing that a congressional committee has standing would actually preserve the practice of accommodation: the two political branches have long operated under the assumption that Congress may go to federal court to enforce a subpoena. By holding that the committee has standing, the court is merely preserving Congress’s well-established subpoena power.

In comparison, McGahn’s claim that the committee lacks standing would disrupt the status quo and aggrandize the powers of the executive branch. By “dramatically alter[ing] the bargaining positions” in the accommodation process, McGahn would curtail the possibility of accommodation. Under no pressure to comply with subpoenas, the executive branch would disclose information only when it wishes. The majority emphasizes that, on the flip side, recognizing congressional standing would not result in constant subpoena-enforcement litigation. It reasons that politicians do not prefer slow, drawn out litigation, the resolution of which might extend beyond their terms in office.

McGahn also argues that resolving the case would allow the judiciary to intrude on the powers of the legislative and executive branches. But, the majority responds, subpoena enforcement is an everyday function of the federal courts. The majority then dismisses McGahn’s assertion that resolving the case would allow the court to impermissibly take sides in an interbranch dispute; the court would merely be resolving a “discrete and limited legal issue” (namely, whether McGahn must appear to testify).

Next, the majority responds to McGahn’s assertion that the committee’s subpoena-enforcement suit infringes on the executive branch’s exclusive power to enforce the law. The majority rebuts this assertion by distinguishing between the president’s law enforcement authority and Congress’s investigative powers.

McGahn also asserts that intervening in the dispute would undermine public confidence in the judiciary, but the majority points out that the court is able to resolve the question by applying “established legal doctrines without weighing in on” a political dispute. Since the committee has established that it has standing, the court cannot avoid its responsibility to hear the suit simply because the case might have political consequences.

Finally, the majority turns to the Supreme Court’s decisions in Raines v. Byrd and Arizona State Legislature to reject McGahn’s argument that there can be standing only when the rights of individuals are implicated. In Raines, the Supreme Court held that six individual members of Congress lacked Article III standing to challenge the constitutionality of the Line Item Veto Act in a suit against two executive branch officials. The Supreme Court determined that, for an injury to be judicially cognizable, the dispute must be one “traditionally thought . . . capable of resolution through the judicial process.” Subsequently, in Arizona State Legislature, the Supreme Court described Raines as holding “specifically and only that ‘individual members of Congress [lack] Article III standing.’” The McGahn majority emphasizes that the former White House Counsel’s argument ignores the Supreme Court’s clear indication in Arizona State Legislature that Raines is limited to standing for individual legislators.

Even applying Raines to the case at hand, the majority concludes that none of the four considerations on which the Raines court relied to reject standing is present here. The asserted injury is concrete and particularized, not abstract and dispersed as it was in Raines; the Judiciary Committee was properly authorized by the full House of Representatives to file suit; and an enforcement suit is the only practicable way for a committee to enforce a subpoena against a non-compliant executive branch official. And while McGahn relies on Raines to suggest that this case is not one “traditionally thought to be capable of resolution through the judicial process,” historical practice suggests otherwise. The majority notes that for over forty years, the D.C. Circuit has recognized that defiance of a congressional subpoena constitutes an institutional injury that can be remedied by the courts; the history of executive branch cooperation with legislative oversight extends back even further.

The Dissents: Henderson and Griffith

In separate dissents, Griffith and Henderson largely reprise arguments each set forth in the three-judge panel decision (Griffith writing for the majority and Henderson in concurrence). Both depart from the majority’s interpretation of Raines and Mazars and from the majority’s treatment of historical practice.

While the majority argues that the Supreme Court in Arizona State Legislature cabined Raines to the facts of that case, Henderson and Griffith assert that Raines’s reasoning, if not its holding, forecloses finding Article III standing. They also contend that Mazars plainly sets forth the Supreme Court’s concerns about the judiciary wading into interbranch disputes.

Griffith infers from the dearth of historic interbranch information disputes that the political branches “agreed to resolve” disputes out of court—not, as the majority suggests, that the House historically has not found it necessary to seek judicial enforcement. Griffith argues that Congress reinforced an understanding that such interbranch disputes are not suited for judicial resolution. He notes that while the statute governing enforcement of Senate subpoenas grants the Senate a cause of action to enforce a subpoena in court, there is no analogous statute for the House. Finally, Griffith dismisses the majority’s assertion that the D.C. Circuit’s subpoena enforcement power is rooted in forty years of history, describing suits from this period as no more than a “few scattered examples” that “shed little light” on the constitutional issue.

Henderson

In a brief six-page dissent, Henderson argues that longstanding historical practice and Supreme Court precedent caution against a finding the committee’s alleged injury is judicially cognizable. Henderson quotes Justice Antonin Scalia’s dissent in Arizona State Legislature for the proposition that courts look to “history and judicial tradition” to assess this element of Article III standing.

Centuries-long practice, Henderson begins, makes clear that this interbranch dispute is not one traditionally thought “amenable to . . . the judicial process.” As the Supreme Court recently stressed in Mazars, the executive and legislative branches have for more than 200 years resolved disputes “in the hurly-burly, the give-and-take of the political process.” While the D.C. Circuit in recent decades recognized a “broad theory of legislative standing,” Raines curbed this theory. The D.C. Circuit should not “take it upon [itself] to alter the balance of powers” that the Supreme Court has not itself disturbed.

Henderson challenges the majority’s position that judicial review would preserve separation of powers, not undermine it. By arguing that a civil suit is, for all practical purposes, the House’s sole means of subpoena enforcement, the majority disregards the House’s range of political enforcement tools, such as its power over appropriations and impeachment. Though deployment of such tools “may be messy” and hampered by partisanship, Henderson argues that these shortcomings do not justify altering the judiciary’s constitutionally prescribed sphere.

Henderson concludes by warning that the majority opens the floodgates to judicial resolution of an untold cast of interbranch disputes. She argues the majority strips McGahn of its separation of powers significance by treating it as a standard subpoena-enforcement suit. In so reasoning, the majority conceivably paves the way for the executive to challenge laws for their alleged infringement on Article II powers, because statutory interpretation—like subpoena enforcement—is an ordinary judicial task.

Griffith

Judge Griffith argues the committee not only lacks Article III standing, but also has failed to establish a cause of action. Like Henderson, Griffith asserts that the committee’s injury is not judicially cognizable because the dispute is neither “consistent with a system of separated powers” nor one historically thought to be subject to judicial resolution.

First, Griffith finds that the dispute is inconsistent with separation of powers. The majority, Griffith contends, improperly “severs the standing analysis from its separation-of-powers roots” and decides this interbranch dispute “as if it were any old case.” The majority returns to the D.C. Circuit’s pre-Raines “two-step approach,” treating separation of powers as “an atmospheric concern to be considered only after we decide that a congressional plaintiff has standing.”

Like Henderson, Griffith raises a floodgates argument. He contends that the majority’s theory of “concrete injury”—that “deprivation of a legal right satisfies Article III”—is without reasonable limit. He dismisses the majority’s suggestion that an asserted deprivation of a right to information is more “concrete” than that of other institutional rights, arguing that the majority’s reasoning applies “far more broadly.” The majority’s theory of standing, Griffith contends, would allow Congress and the executive to sue each other for alleged denials of “something to which [each] is entitled by law,” or even allow the judiciary to sue the political branches for, as but one example, withdrawal of the D.C. Circuit’s habeas jurisdiction over Guantanamo Bay.

Second, Griffith argues, historical practice establishes that the dispute is not one “traditionally thought ... capable of resolution through the judicial process.” Griffith distinguishes McGahn from interbranch disputes the Supreme Court has resolved, finding that each such dispute—including most recently, Mazars—involved a “controversy between individuals” rather than a pure interbranch dispute. Griffith further dismisses the majority’s reliance on the four decades during which the D.C. Circuit courts presided over interbranch information disputes in particular, finding the majority “privilege[s] four recent lower-court decisions over 200 years of tradition.”

Having argued that the committee lacks Article III standing, Griffith next finds that the committee has not established a cause of action to seek injunctive relief. (The majority leaves this issue for the original panel to resolve. In the three-judge panel decision, Judge Rogers argued in dissent that the House has a cause of action under either the Constitution or the Declaratory Judgments Act.) Griffith declines to find an implied cause of action in Article I and rejects the committee’s alternative arguments—that the court may exercise its “traditional equitable powers” to afford relief, or that the Declaratory Judgments Act provides a statutory cause of action.

Griffith concludes by warning of the consequences. The prospect of judicial subpoena enforcement will incentivize the executive branch to delay compliance with congressional subpoenas, given the long wait inherent in civil subpoena litigation. It will also undermine what Griffith identifies as Congress’s “ultimate lever of accountability: its impeachment power.” Finally, the majority threatens to undermine public confidence in an impartial judiciary that makes the court’s decisions “efficacious in the first place.” The majority, Griffith writes, does “neither ourselves nor the parties any favors.”

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