Congress

Summary: House Has No Standing to Compel McGahn’s Testimony, D.C. Circuit Rules

By Charlotte Butash
Friday, March 6, 2020, 9:00 AM

On Feb. 28, a three-judge panel of the D.C. Circuit decided Committee on the Judiciary v. McGahn. The panel held that the House of Representatives could not go to federal court to enforce a subpoena compelling testimony from Trump administration officials.

Notably, the House will likely file a petition for rehearing en banc, so the decision below could soon be reconsidered by the full D.C. Circuit.

Background

The case arose out of the House Judiciary Committee’s efforts to conduct oversight into President Trump’s obstruction of the Mueller investigation. During the investigation, Special Counsel Robert Mueller interviewed Don McGahn (who was, at the time, White House counsel) on several separate occasions. When Mueller submitted his report to the House of Representatives, the Judiciary Committee ordered McGahn, who was by then a private citizen, to turn over White House documents related to Trump’s effort to obstruct the investigation. McGahn refused, and the committee issued a subpoena ordering him to produce the documents and to testify. Then, Pat Cipollone, McGahn’s successor, informed the committee that Trump had instructed McGahn not to appear. In doing so, Cipollone asserted that certain presidential advisers possess “absolute testimonial immunity” from compelled congressional process.

The Judiciary Committee sued McGahn in federal district court in D.C. to enforce its subpoena, asking the court to declare that McGahn’s refusal to testify was “without legal justification.” The committee argued that the refusal interfered with its ability to determine whether to impeach the president, to assess the need for any remedial legislation, and to conduct oversight of the Department of Justice. The department argued that the court did not have jurisdiction over an interbranch dispute.

The district court granted the committee’s motion for summary judgment, holding that it had subject-matter jurisdiction under 28 U.S.C. § 1331; the dispute was justiciable because it raised common legal questions that federal courts are equipped to handle; that the committee had standing because it alleged an actual and concrete injury to its right to compel information; and that the committee possessed an implied cause of action under Article I. On the merits, the court rejected the Justice Department’s assertion of absolute immunity. Instead, it said, presidential aides must appear before Congress when subpoenaed; while testifying, they can assert any legally applicable privilege in response to questions.

McGahn filed an appeal, the D.C. Circuit heard arguments on Jan. 4 and this decision followed. Judge Thomas Griffith wrote for the court, with Judge Karen LeCraft Henderson concurring. Judge Judith Rogers dissented.

The D.C. Circuit’s Reasoning

Judge Griffith held that the federal courts have no authority to resolve a dispute between the committee and the president over whether McGahn must testify.

In reaching this conclusion, Griffith first looks to the separation of powers. He observes that Article III’s “Case” or “Controversy” requirement constrains the federal judiciary’s ability to decide cases and prevents it from engaging in “amorphous general supervision” of government. While the president and Congress are responsive to the democratic will, the judiciary is the furthest removed from the people; its jurisdiction must be circumscribed to protect the democratic branches from undue interference. As a result, the federal judiciary “lack[s] authority to resolve disputes between the Legislative and Executive Branches until their actions harm an entity beyond the federal government.” According to Griffith, this case does not meet that standard: It has no bearing on the rights of individuals or another entity outside of the government. (McGahn is currently a private individual, but the implication is that this dispute nevertheless does not qualify.) Though the assertion of privilege might seriously—or, as Griffith concedes, “even unlawfully”—interfere with the committee’s efforts to conduct oversight into the president’s wrongdoing, it does not create a judicially cognizable injury.

The limitations on the court’s power to resolve cases allows it to stay out of fraught political conflicts, helping preserve public confidence in the judiciary. Here, Griffith argues, the dangers of judicial involvement are particularly strong. This case represents a direct clash between the two political branches. And, on top of that, it raises a constitutional issue—the committee’s right to McGahn’s testimony and the president’s right to prevent it. Courts, Griffith writes, attempt to avoid resolving constitutional issues where possible.

Griffith then emphasizes the potential repercussions of getting involved. While this case is narrow, Congress might seek to enforce many other subpoenas in the future, he argues—and points to the fact that the committee is suing Attorney General William Barr and Commerce Secretary Wilbur Ross over refusal to provide documents related to the citizenship question on the census. These future cases would put the court in the position of evaluating the president’s claims of confidentiality against Congress’s need for information. In that situation, the court would have little to guide it through the potentially complicated and fact-intensive inquiry—limited constitutional text, no statutes, a few cases and some ambiguous historical sources. Instead, the court would have to create federal common law around congressional investigations.

Next, Griffith looks to whether “the claim is traditionally thought to be capable of resolution through the judicial process.” It has been long established, Griffith asserts, that the political branches resolve information disputes among themselves through an accommodations process. Congress, under the Constitution, has tools it can use to enforce its subpoenas without relying on the judiciary: It can hold officers in contempt, withhold appropriations, refuse to confirm the president’s nominees, harness public opinion, delay or derail the president’s legislative agenda, or impeach officers.

Notably, the D.C. Circuit has resolved interbranch information disputes in the past: Griffith cites three decisions between 1974 and 2008. He states, however, that the legal basis for the resolution of these disputes was “dubious.” Pointing to the Supreme Court’s 1997 decision in Raines v. Byrd, Griffith claims that purely interbranch disputes have not traditionally been resolved by the federal courts. He also asserts that this case has few historical antecedents and notes arguments made by both the Bush and Obama administrations that federal courts shouldn’t resolve interbranch informational disputes.

Finally, Griffith observes that Congress has, through its statutes governing enforcement of congressional subpoenas, seemingly agreed that cases like this one do not belong in federal court. One statute, 2 U.S.C. § 288d, gives the Senate—not the House—statutory authority to enforce a subpoena in federal court. And in another statute, 28 U.S.C. § 1365(a), Congress expressly excludes federal jurisdiction over suits involving executive branch assertions of governmental privilege. Congress, Griffith says, speaks through statutes, not through a House Committee’s litigating position. Thus, the absence of congressional authorization is the “third strike” against the committee’s case.

Griffith then addresses and refutes each of the committee’s arguments. First, the committee argues that courts have long adjudicated questions over the effect of a duly issued subpoena, but Griffith asserts that the nature of this dispute—between Congress and the executive branch—distinguishes it from previous litigation. According to Griffith, the cases in which federal courts have considered congressional subpoenas in the past (including cases from 1957, 1927 and 1880, among others), have arisen in “three discrete procedural contexts” that differ from this case: (a) prosecutions for criminal contempt of Congress, (b) applications for writs of habeas corpus, and (c) civil suits affecting the rights of private parties. Next, the committee claims it may assert an “institutional injury” to satisfy standing requirements, but Griffith concludes that the theory is inconsistent with the Supreme Court’s case law on legislative standing and lacks a limiting principle. Though the committee cites the Supreme Court’s decision in Arizona State Legislature v. Arizona Independent Redistricting Commission in support, Griffith distinguishes the case by emphasizing that the legislature claiming institutional injury was a state legislature. And, Griffith fears, there is no limit to resolving interbranch disputes: The courts could be called to enforce the president’s constitutional obligation to give the State of the Union address. Finally, the committee argues that binding circuit court precedent requires the court to hear its claims, but Griffith points to three cases that rejected congressional standing and claims that the Supreme Court’s decision in Raines casts doubt on any contrary prior D.C. Circuit cases.

Griffith then addresses the reasoning of Roger’s dissent. The dissent, he says, misreads Raines and wrongly assumes that a court’s jurisdiction expands or contracts depending on the importance of a legal question or alternative remedies available to a litigant. Furthermore, the dissent uses the judiciary to supervise the political branches when extrajudicial remedies are still available for Congress to use. With courts available, Congress and the executive branch would rush to bring suit before trying to resolve their disputes through the political process.

Griffith concludes by noting limitations on the reach of the court’s decision. First, it does not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena. Griffith declines to adopt the Justice Department’s argument that Article III precludes Congress from ever enforcing a subpoena in federal court, even against a private citizen, because it would render unconstitutional statutes authorizing enforcement. (It is unclear how McGahn, who was subpoenaed as a private citizen, fits into this framework.) According to Griffith, the decision also does not resolve whether a congressional statute authorizing a suit like the committee’s would be constitutional. In addition, Griffith says, the decision does not question the courts’ authority to adjudicate disputes historically recognized as within their jurisdiction, such as executive-privilege claims arising out of criminal subpoenas and cases concerning congressional subpoenas that implicate the rights of private parties. Finally, the court expresses no view on the merits of the dispute between the committee and the president.

The Concurrence’s Reasoning

Judge Henderson agrees that the committee lacks standing but emphasizes the limitations of the holding. Supreme Court precedent, she asserts, does not foreclose Article III standing in all cases where Congress asserts any institutional injury in any interbranch dispute. And it also does not support the assertion of absolute testimonial immunity against compelled congressional process. While the Supreme Court’s decision in Raines does prevent individual legislators from representing Congress even when they can allege an institutional injury, it does not state that legislative standing does not exist in any circumstance.

To prevent an undue expansion of judicial power, Henderson notes that, under Raines, the standing inquiry is “especially rigorous” for cases that would require the court to decide whether an action taken by one of the other two branches was unconstitutional. Henderson admits that it is unclear precisely how rigorous the inquiry should be, but she asserts that the existence of an interbranch dispute does not by itself determine whether the standing requirements are satisfied. Engaging in a careful inquiry, Henderson first asks whether the Committee has suffered a cognizable injury. She notes that the Supreme Court’s decision in Arizona State Legislatures leaves open the possibility of legislative standing in an intragovernmental dispute. And because the alleged injury here—to the committee’s power to conduct investigations and determine whether to impeach the president—infringes, at least in part, on a power vested exclusively to the House and delegated to the committee, the Supreme Court has not foreclosed the possibility that the committee’s injury could support Article III standing. She observes that competing constitutional prerogatives and the possibility of alternative legislative remedies do not prevent federal courts from hearing an otherwise justiciable case.

But, Henderson reasons, under the specific facts here the committee does not have Article III standing because the dispute is not one that courts traditionally resolve. Historical practice cuts against standing: No past case between Congress and the executive branch stood on the basis of claimed injury to official power. And as an inferior court, the D.C. Circuit is not in a position to expand the power of the federal judiciary to a suit, inextricably intertwined with a “power contest nearly at the height of its political tension,” that has never before been deemed cognizable.

With an eye toward the merits, Henderson states that she “believe[s] McGahn’s claimed immunity rests on somewhat shaky legal ground.” It has little support in case law. And significantly, it seems unnecessary to protect the executive branch’s interests when other privileges are available. While testifying, administration officials could refuse to answer questions protected by executive privilege. Henderson notes, however, that in the impeachment context, it is less clear whether and when executive privilege would be appropriate, given how impeachment alters constitutional powers and asserted interests.

Concluding, Henderson attributes her decision to write separately to her strong feelings that the invocation of qualified privileges is the preferred mechanism for resolving interbranch disputes over information. The executive’s categorical refusal to respond to congressional inquiries rests on a shaky legal foundation and disregards the long-standing accommodations process. Political negotiations should come first—and, she suggests, any remaining disputes over the assertion of a qualified privilege would frame the issue in a manner more suitable to judicial review.

The Dissent’s Reasoning

Judge Rogers, dissenting from the court’s decision, argues that the committee has standing because subpoena enforcement is a “traditional and commonplace function of the federal courts.”

By holding that the committee does not have standing, Rogers declares, the court has removed any incentive for the executive branch to engage in the accommodations process. And an inability to enforce its subpoena in court in the face of an executive branch refusal impairs the House’s ability to perform its constitutional duties. Rogers emphasizes that the consequences of that impairment are particularly significant in this context: The House’s impeachment power is a vital check on the president; it distinguishes the president from a monarch.

Applying Raines, Rogers engages in a four-factor analysis to determine whether the committee has standing: In Raines, (a) the individual plaintiffs alleged an institutional injury that was “wholly abstract and widely dispersed”; (b) plaintiffs’ “attempt to litigate th[eir] dispute at this time [wa]s contrary to historical experience”; (c) the plaintiffs “ha[d] not been authorized to represent their respective Houses of Congress ... , and indeed both Houses actively oppose[d] their suit”; and (d) dismissing the lawsuit “neither deprive[d] Members of Congress of an adequate remedy ... , nor foreclose[d] the Act from constitutional challenge.”

Looking to the first factor, Rogers concludes that the committee can be distinguished from the plaintiffs in Raines. McGahn has violated the House’s long-recognized constitutional right to subpoena witnesses to testify before it—a specific, acute institutional injury. Rogers argues that based on Raines itself, it is clear that an individual right does not need to be at stake for Article III standing to be satisfied.

Second, Rogers asserts that the historical experience relevant here is past presidential cooperation with the legislative branch in response to requested information. And, Rogers notes, federal courts have traditionally decided cases similar to this one. Indeed, in the early 1970s the D.C. Circuit unanimously enforced a Senate Committee subpoena duces tecum served on President Nixon for production of the Watergate tapes. And in 1976, the D.C. Circuit considered a suit brought by the executive branch to enjoin a private company from complying with a congressional subpoena on national security grounds. Citing more recent cases, Rogers states that federal courts have decided disputes over congressional subpoenas against former high-ranking executive branch officials, including a former White House counsel.

Third, Rogers notes that the committee’s lawsuit was authorized by the full House of Representatives, unlike that of the Raines plaintiffs.

Finally, Rogers states that declining to exercise jurisdiction will deprive the House of an adequate remedy. Rogers repeatedly points to the Office of Legal Counsel, which has twice concluded that the House may bring a civil subpoena-enforcement action in federal court because there is no other adequate remedy. Congress’s two alternative remedies—holding a witness in contempt and referring to the Department of Justice for prosecution under the criminal contempt statute, or utilizing inherent contempt—are unavailable: Prosecution is not possible where an administrative official defies a subpoena on the basis of executive privilege, and the House hasn’t used its inherent contempt authority to instruct the sergeant at arms to imprison a subpoena recipient in more than 100 years. Because all four factors counsel in favor of standing, Rogers concludes, the committee should be granted standing here.

Rogers then moves to the merits of the case. If a party has no valid grounds for objecting to a subpoena, the court may enforce it. And the committee seeks only a narrow declaration that McGahn is required by law to appear before it—not necessarily to answer any specific questions.

It is true, Rogers recognizes, that the interbranch nature of the lawsuit requires the court to carefully review the separation of powers considerations the suit might raise. But every federal court that has taken up the question of whether Congress has standing to file a subpoena-enforcement action against a federal official has ruled in Congress’s favor. And both Article I of the Constitution and the Declaratory Judgment Act provide Congress with a cause of action to enforce the subpoena. Under 28 U.S.C. § 1331, then, federal courts have subject matter jurisdiction over the lawsuit here.

Rogers concludes that, although there is a bitter political struggle over impeachment in the background of this case, the legal question presented is not itself political, nor is it unprecedented. The committee, therefore, has standing to enforce its subpoena.