Rule of Law

OP-ED: Are the Courts Finally Ready to Compel Don McGahn to Testify?

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Committee on the Judiciary v. McGahn, a case concerning whether former White House counsel Don McGahn must comply with a subpoena from the House Judiciary Committee for his testimony. The key question before the court, hearing the case en banc and telephonically in light of the COVID-19 pandemic, was whether the House has standing to bring a civil action to enforce its subpoena against McGahn. The stakes, though, are much bigger than just this fight between McGahn and the Judiciary Committee. A holding that the House lacks standing will substantially hamper its ability to conduct effective oversight of the executive branch, both now and in the future. Thankfully, as Tuesday’s oral argument showed, most of the judges seemed to understand the gravity of this case and seemed likely to hold that the House has standing to bring this suit.

The McGahn case is fundamentally about Congress’ efforts to investigate President Donald Trump’s attempts to interfere with the Mueller investigation. As special counsel Robert Mueller detailed, McGahn was a central figure in at least two incidents considered in that investigation: Trump’s attempt to fire Mueller in June 2017 and Trump’s effort to get McGahn to issue a false statement about the attempted firing in February 2018. Seeking to hear directly from McGahn about these incidents, the House subpoenaed McGahn to testify before the House Judiciary Committee. But the president directed McGahn not to appear, asserting a theory of absolute immunity for the president’s close advisers that no court has ever approved, and the House went to court to enforce the subpoena.

In a 2–1 decision (the judges in the majority were both appointed by Republican presidents, and the dissenting judge was appointed by a Democratic president), a panel of the D.C. Circuit held that the courts could not hear the case at all. Even as the panel acknowledged that executive branch “obstruction may seriously and even unlawfully hinder the Committee’s efforts to probe presidential wrongdoing,” it nonetheless concluded that the case presented an interbranch dispute in which the judiciary should not be involved. In doing so, Judge Judith Rogers noted in dissent that “the court remove[d] any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assure[d] future Presidential stonewalling of Congress, and further impair[ed] the House’s ability to perform its constitutional duties.” The full court then agreed to rehear the case.

The judges’ questions suggest that they understand the stakes of this case. First, the judges seemed to understand that a ruling that the House lacks standing would make it nearly impossible for the House to enforce its subpoenas against the executive branch going forward. In a typical case where an individual refuses to comply with a congressional subpoena, Congress has a number of tools to enforce compliance. Congress can ask the U.S. Attorney’s Office in D.C. to prosecute the individual for failing to comply with the subpoena under a federal law that makes such noncompliance a crime. Congress can also exercise its inherent authority to arrest a recalcitrant witness until she complies, although that power has been dormant nearly a century. Finally, Congress can theoretically file a civil action in federal court to enforce the subpoena, as it sought to do in the McGahn case.

The Trump administration is contesting Congress’ ability to take that third action. But the problem with its position is simple: The Department of Justice is very unlikely to take criminal contempt action against members of the executive branch. Inherent contempt has not been used in nearly a century, and using it against an executive branch official would surely spark an immediate constitutional conflagration. Thus, if Congress also lacks the ability to bring a civil action, as the panel held, that would mean that Congress would have practically no recourse if executive officers ignored congressional subpoenas, which would make it virtually impossible for Congress to conduct meaningful oversight of a recalcitrant executive branch. As a real-life example of what this would look like, late last year the White House refused to comply with a single subpoena in the impeachment inquiry and then successfully argued before the Senate that the president could not be impeached and removed for this unprecedented obstruction.

The panel of the D.C. Circuit responded to the argument that going to court is Congress’ only real remedy by suggesting that Congress has other, political tools at its disposal to incentivize compliance: tools like limiting appropriations, stymying the president’s legislative agenda, or impeachment. But that argument is not convincing for multiple reasons. For one thing, the president argued during his impeachment that he could not be removed for noncompliance and that the appropriate place for adjudicating these disputes was—wait for it—the courts. Moreover, at the en banc argument, Judge Nina Pillard pointed out that these tools might not work in practice. With regard to holding up legislation and appropriations, this would effectively put Congress between a rock and a hard place: to enforce its subpoenas, it would have to hold up important legislation or refuse to fund the government—actions that could do as much, if not more, damage to the American people as they would do to the executive branch. Even without the real-life example from just a few months ago, the argument that the House could resort to impeachment every time it wanted to enforce a subpoena is even more impractical.

Further, multiple judges noted that a holding that the House lacks standing would place the House in a lesser position than most other individuals seeking to enforce (or fight) a subpoena. Indeed, private parties and prosecutors are routinely able to—and do—come into court to enforce lawfully issued subpoenas. Under the Department of Justice’s theory, however, the House would be prevented from enforcing its own subpoenas in court, despite its long-standing authority to conduct investigations of the executive branch. Moreover, as Judges Merrick Garland and Patricia Millett noted, private parties can even come into court under the Freedom of Information Act to obtain documents and other information from the executive branch. Holding that those individuals have standing to get information but the House does not makes little sense, particularly given that the Constitution assigns the House a critically important role as a check on the executive branch.

Multiple judges also noted a troubling inconsistency in the Department of Justice’s position: It would allow the executive branch to file suit to prevent a subpoena while simultaneously precluding the House from filing suit to enforce a subpoena. Indeed, the government’s attorney at the en banc argument took the position that there would be no jurisdictional barrier to the United States filing suit to prevent a former White House counsel who wanted to testify from doing so. If the courts cannot hear interbranch disputes like this one, why should they be able to hear interbranch disputes brought by the executive branch? The Department of Justice did not have a good response to that inconsistency in its position.

Finally, some judges noted that a ruling that the House lacks standing could then lead to an even greater clash between the branches of government. As Chief Judge Sri Srinivasan observed, if the court holds that the House lacks standing to bring a civil action to enforce its subpoena, the House might choose to use its long-standing inherent authority to arrest a recalcitrant witness like McGahn, and McGahn would in all likelihood file a habeas lawsuit challenging his arrest. The Department of Justice attorney suggested that there would be no Article 3 barrier to this type of suit. But, as Srinivasan explained, although such a suit would raise the very same arguments about whether absolute immunity can shield McGahn from testifying, it would lead to a greater separation-of-powers “conflagration,” with one branch attempting to imprison an official—or, in this case, former official—of another before the question arrived in court. Thus, Srinivasan suggested that separation-of-powers principles should permit the House’s suit here, in order to avoid that more serious clash between the political branches.

In short, again and again during the argument, the majority of judges on the D.C. Circuit expressed their understanding of the dire consequences that would follow a ruling that the House lacks standing to enforce its subpoenas against executive branch officials in court. Such a holding would make it nearly impossible for the House to enforce its subpoenas, would place the House in a lesser position than other individuals seeking to enforce subpoenas, and could lead to an even greater separation-of-powers dispute winding up in court. The court seems likely to hold that Congress has standing to bring this suit against McGahn, and that’s a good thing. Such a ruling would allow our constitutional democracy to retain one of the few remaining checks on the executive branch.