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.

CAC filed an amici curiae brief on behalf of former Department of Justice officials with the en banc D.C. Circuit, arguing that the Committee had standing to sue to enforce its subpoena.  The en banc D.C. Circuit agreed, explaining 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.

Following the en banc court’s decision, a panel of the D.C. Circuit 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 again 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.

In June 2021, the parties jointly moved to dismiss the appeal after they reached an agreement under which McGahn would testify before the Committee.  The D.C. Circuit granted the motion to dismiss and vacated the panel decision that had concluded the Committee lacked a cause of action.