On Tuesday, April 28, the en banc D.C. Circuit will hear telephonic oral argument in Committee on the Judiciary v. McGahn, a high-profile case concerning former White House Counsel Don McGahn’s refusal to comply with a House Judiciary Committee subpoena for his testimony.  The committee subpoenaed McGahn to better understand his role in President Trump’s efforts to obstruct federal investigations into Russia’s interference in the 2016 election.  Following McGahn’s refusal to comply, the committee filed a civil action in federal court in Washington seeking to enforce its subpoena.  The Trump administration argued that the court lacked jurisdiction to hear the case, and a divided panel of the D.C. Circuit agreed, holding that Congress lacks standing to bring a civil subpoena-enforcement suit against an Executive Branch official claiming executive privilege or immunity.  This decision threatens to allow not only this administration, but all future administrations, to avoid legitimate congressional oversight.

The Executive Branch has not been consistent on the issue of Congress’s standing.  Although the Department of Justice has more recently taken the position in litigation that the House of Representatives lacks standing to bring a civil action to enforce a subpoena against an Executive Branch official, that position conflicts with prior Department of Justice precedents.  As Judge Rogers explained in her panel dissent, in a series of Office of Legal Counsel (OLC) memoranda from the 1980s, the Department took the position that the House could bring this sort of civil-enforcement action.  In fact, OLC relied on that authority to explain that, in its view, preventing Congress from using the criminal-contempt process or its inherent contempt authority to enforce subpoenas would not harm Congress’s ability to conduct meaningful investigations.  The department’s current position that the House lacks standing is at odds with this precedent, and the panel opinion failed to grapple with that substantial change in position.

It has long been accepted that Congress has the ability to conduct investigations and to subpoena witnesses and documents to further those investigations.  According to the Supreme Court, subpoenas are critical to Congress’s investigative function.  As it explained in the seminal case McGrain v. Daugherty:

[W]here the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.  Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed (emphasis added).

Similarly, in Quinn v. United States, the Court explained that “[w]ithout the power to investigate—including of course the authority to compel testimony, either through its own process or through judicial trial—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.”

Congress typically has three ways to enforce its subpoenas.  It can ask the Executive Branch to prosecute an uncooperative witness.  Federal criminallaw makes it a misdemeanor for a witness summoned by Congress to refuse to comply with a subpoena, so Congress can vote to hold a witness in contempt and refer the matter to “the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”  In the alternative, Congress has inherent contempt authority and can use its own officers to imprison an uncooperative witness until the end of a congressional term or until the witness complies with the subpoena.  Finally, Congress can file a civil action in federal court and seek an order directing a recalcitrant witness to comply—the route that Congress has taken in McGahn.

Importantly, the Executive Branch has in the past taken the position that Congress cannot use the first two options—the criminal-contempt process or its inherent contempt authority—when it seeks to enforce a subpoena against an Executive Branch official refusing to testify because of a claim of executive privilege or immunity.  With regard to the criminal-contempt statute, OLC has opined that “the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President’s claim of executive privilege.”  The Justice Department’s Criminal Division and U.S. Attorneys’ Offices have relied on that position in declining to bring prosecutions against Executive Branch officials who claim executive privilege or immunity.  OLC has also taken the position that “this same conclusion would apply” to Congress’s inherent contempt power because “the reach of the [criminal contempt] statute was intended to be coextensive with Congress’ inherent civil contempt powers.”

OLC was not worried that Congress could not use these two methods to require an Executive Branch official to comply with a subpoena, however, because OLC believed that Congress could always bring a civil action to enforce its subpoenas.   Indeed, OLC took that position repeatedly.  When OLC first addressed the issue in 1984, it took the position that “Congress could obtain a judicial resolution of the underlying privilege claim and vindicate its asserted right to obtain any documents by a civil action for enforcement of a congressional subpoena” (emphasis added).  In fact, OLC believed a civil suit would be preferable because it “would be aimed at the congressional objective of obtaining the documents, not at inflicting punishment on an individual who failed to produce them.”  And OLC specifically addressed jurisdiction, opining that “there is little doubt that … Congress may authorize civil enforcement of its subpoenas and grant jurisdiction to the courts to entertain such cases.”  In short, depriving Congress of its ability to use the criminal-contempt process or its inherent authority will result in a “relatively slight imposition” because Congress can “resort to a civil rather than a criminal remedy to pursue its legitimate needs.”

OLC reaffirmed that position in 1986, concluding that “[t]he most likely route for Congress” to enforce its subpoenas “would be to file a civil action seeking enforcement of the subpoena.”  The office specifically explained that “[a]ny notion that the courts may not or should not review such disputes is dispelled by United States v. Nixon in which the Court clearly asserted its role as ultimate arbiter of executive privilege questions.”  Indeed, OLC noted that in earlier litigation, the Justice Department had argued that “only judicial intervention can prevent a stalemate between the other two branches that could result in a partial paralysis of government operations.”  Thus, although “the civil enforcement route ha[d] not [at the time] been tried by the House,” OLC concluded that “it would appear to be a viable option.”

Finally, in 1989, in an opinion written by none other than then-Assistant Attorney General William Barr (now the Attorney General), OLC again noted that a civil action was a viable route for Congress to enforce a subpoena of an Executive Branch official.  While recognizing that Congress could potentially use the criminal statute or its inherent contempt authority, it believed that the “most likely option due to legal and practical difficulties associated with [those] two options” would be for Congress to “bring an action in court to obtain a judicial order requiring compliance with the subpoena and contempt of court enforcement orders if the court’s order is defied.”

To be sure, as the Department of Justice argues in its en banc briefing before the D.C. Circuit, these OLC opinions from the 1980s predate the Supreme Court’s decision in Raines v. Byrd that held the individual legislators in that case lacked standing to file suit to challenge the constitutionality of a federal law.  That case is, of course, different in many respects from the McGahn case, including that McGahn concerns a suit brought by the Judiciary Committee (and authorized by the full House of Representatives), and it involves the enforcement of a lawfully issued subpoena.  Raines is thus readily distinguishable and in no way undermined the position taken in those earlier OLC memoranda.

Moreover, the importance of these earlier OLC memoranda is not simply that OLC took the position that the House could file a civil action to enforce a subpoena against an Executive Branch official and has now changed that position.  It is that OLC relied on its view that the House could bring a civil action in taking the position that the House could not utilize the other mechanisms it usually employs to enforce its subpoenas.  The Department of Justice has not explained why it is no longer concerned—as it previously was—that in its view the House might lack any mechanism to enforce its subpoenas and to conduct effective oversight of the Executive Branch.

In short, OLC repeatedly took the position that Congress could bring civil actions to enforce its subpoenas against Executive Branch officials, and it relied on that authority in justifying its position that Congress likely cannot use the criminal statute or its inherent contempt powers to enforce its subpoenas.  The Justice Department’s new position that Congress is precluded from bringing a civil action would make it much more difficult for Congress to effectively enforce its subpoenas against Executive Branch officials, opening the door for future administrations to avoid legitimate congressional oversight.  That position, however, runs contrary to the department’s long-standing position—a fact unlikely to go unnoticed by the full D.C. Circuit.