Rule of Law

Committee on the Judiciary v. Donald F. McGahn, II

In Committee on the Judiciary v. McGahn, the en banc Court of Appeals for the D.C. Circuit is considering whether the House Judiciary Committee has a cause of action to enforce a subpoena issued to Don McGahn, the former White House Counsel, in federal court.

Case Summary

Last spring, the White House directed former White House Counsel Don McGahn to ignore a congressional subpoena for testimony that would aid Congress’s consideration of “remedial legislation, oversight of DOJ, and [an] impeachment investigation.”  Specifically, McGahn was a key fact witness to several episodes detailed in Robert Mueller’s report on Russia’s interference in the 2016 election and President Trump’s attempts to obstruct Mueller’s investigation, and the House wished to hear from McGahn directly about those issues.  When the Judiciary Committee filed a civil action to enforce its subpoena, McGahn argued that the committee had no Article III standing or cause of action to do so.

In August, the en banc D.C. Circuit held that the House Judiciary Committee has Article III standing to enforce its subpoena.  The en banc court explained that in order to conduct effective oversight of the federal government, Congress must have access to information regarding the “operations of its departments and agencies.”  Because Congress requires information to do its job of legislating and conducting oversight, the court held that the Committee suffers a “concrete and particularized injury” if it is denied that information.

Nonetheless, a panel of the D.C. Circuit subsequently held that the Committee lacked a cause of action to bring its subpoena-enforcement suit.  The Judiciary Committee filed a request for a second en banc rehearing by the full D.C. Circuit, which the Court granted.

CAC filed an amici curiae brief on behalf of former Department of Justice officials in support of the Judiciary Committee.  Our brief made two key points.  First, we argued that the Department of Justice has previously taken the position that Congress can file a civil action to enforce its subpoenas against Executive Branch officials.  Indeed, it has relied on that position to justify its view that Congress cannot rely on the criminal-contempt statute or its inherent contempt authority to enforce a subpoena in similar circumstances.  DOJ’s more recent position in litigation opposing the House’s ability to file a civil subpoena-enforcement action is at odds with that precedent.

Second, our brief explained that one reason why there are not more examples of Congress bringing civil actions to enforce its subpoenas is because there is a long history of cooperation between the executive and legislative branches regarding lawful congressional subpoenas. From the early days of the Republic, the executive branch respected Congress’s power to investigate and cooperated with Congress’s lawful requests for testimony and documents, so civil actions were not necessary.  It is this Executive Branch’s total obstruction of Congress’s lawful investigations—not Congress’s attempts to enforce its subpoenas—that is unprecedented here.

Case Timeline

  • April 16, 2020

    CAC files amici curiae brief

    D.C. Cir. Amici Br.
  • April 28, 2020

    The D.C. Circuit hears oral argument en banc

  • August 7, 2020

    The D.C. Circuit issues its opinion en banc

  • December 23, 2020

    CAC files amici curiae brief for second rehearing en banc

    D.C. Cir. Amici Br.
  • May 19, 2021

    The D.C. Circuit will hear oral argument en banc

More from Rule of Law

Rule of Law
July 28, 2021

Originalism Watch, Sixth Circuit Edition Part II: Judge Thapar Calls for the Supreme Court to “Breath[e] New Life” Into the Nondelegation Doctrine

Back in April, my colleague, David Gans, observed that Sixth Circuit Judge John Bush’s concurrence...
By: Miriam Becker-Cohen
Rule of Law
July 27, 2021

RELEASE: CAC President Commends 1/6 Committee for Beginning Important Work, Urges Accountability

WASHINGTON – As the bipartisan Jan. 6 Select Committee holds its first hearing, Constitutional Accountability Center President Elizabeth Wydra issued the following statement and is available...
By: Elizabeth B. Wydra
Rule of Law
July 22, 2021

OP-ED: The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism

For decades, the Supreme Court has repeatedly deferred to the police when judging the validity...
By: David H. Gans
Rule of Law
July 27, 2021

#PurpleChairChat: Supporting the Next Generation of Constitutional Progressives

CAC’s interns, Dylan Hosmer-Quint of Harvard Law, and Gilbert Orbea and Saja Spearman-Weaver of Yale Law, discuss the great work they have...
By: Elizabeth B. Wydra
Rule of Law
July 16, 2021

Rent regulations are not unconstitutional

New York Daily News
Some New York City landlords are pushing for an expansive misreading of the Constitution to serve their...
By: Elizabeth B. Wydra, By Christopher Serkin
Rule of Law
U.S. District Court for the District of Columbia

Blassingame v. Trump

In Blassingame v. Trump, the U.S. District Court for the District of Columbia is considering whether former President Donald Trump is entitled to absolute presidential immunity from damages liability for allegedly inciting a riot at...