Comm. on the Judiciary of the U.S. House of Representatives v. McGahn

Decision Date07 August 2020
Docket NumberNo. 19-5331,19-5331
Citation968 F.3d 755
Parties COMMITTEE ON the JUDICIARY OF the UNITED STATES HOUSE OF REPRESENTATIVES, Appellee v. Donald F. MCGAHN, II, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the brief were Mark R. Freeman and Michael S. Raab, Attorneys.

Douglas N. Letter, General Counsel, Washington, DC, and Megan Barbero, Deputy General Counsel, U.S. House of Representatives, argued the cause for appellee. With them on the brief were Todd B. Tatelman, Principal Deputy General Counsel, Washington, DC, Josephine Morse, Deputy General Counsel, Adam A. Grogg and William E. Havemann, Associate General Counsel, Jonathan B. Schwartz, Attorney, Washington, DC, Annie L. Owens, Joshua A. Geltzer, and Matthew S. Hellman, Washington, DC.

Elizabeth B. Wydra, San Francisco, CA, Brianne J. Gorod, and Ashwin P. Phatak were on the brief for amici curiae Former Department of Justice Officials in support of appellee.

Irvin B. Nathan, John A. Freedman, Andrew T. Tutt, Washington, DC, and Samuel F. Callahan were on the brief for amici curiae Former Members of Congress in support of appellee.

Andrew D. Herman, Washington, DC, was on the brief for amici curiae the Lugar Center and the Levin Center at Wayne Law in support of appellee.

Dwayne D. Sam and David Bookbinder, Washington, DC, were on the brief for amicus curiae Niskanen Center in support of appellee.

Kelsi Brown Corkran, Washington, DC, Benjamin F. Aiken, and Sarah H. Sloan were on the brief for amici curiae Professors Jonathan R. Nash, et al. in support of appellee.

Michael J. Miarmi, New York, NY, and Rhea Ghosh were on the brief for amici curiae Nixon Impeachment Scholars in support of appellee.

Katharine M. Mapes, Washington, DC, was on the brief for amicus curiae Morton Rosenberg in support of appellee.

Lawrence S. Robbins, Washington, DC, D. Hunter Smith, and Megan Browder were on the brief for amici curiae Former General Counsels of the U.S. House of Representatives in support of appellee.

Before: Srinivasan, Chief Judge, Henderson, Rogers, Tatel, Garland, Griffith, Millett, Pillard, Wilkins, Katsas* , and Rao *, Circuit Judges.

Dissenting opinion by Circuit Judge Henderson.

Dissenting opinion by Circuit Judge Griffith.

Rogers, Circuit Judge:

The question before the en banc court is whether the Committee on the Judiciary of the House of Representatives has standing under Article III of the Constitution to seek judicial enforcement of its duly issued subpoena. Upon applying the principles of Article III standing, we hold that it does.

The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a President or other Executive Branch official from office. Possession of relevant information is an essential precondition to the effective discharge of all of those duties. Congress cannot intelligently legislate without identifying national problems in need of legislative solution and relying on testimony and data that provide a deeper understanding of those problems, their origins, and potential solutions. It likewise cannot conduct effective oversight of the federal government without detailed information about the operations of its departments and agencies. And it cannot undertake impeachment proceedings without knowing how the official in question has discharged his or her constitutional responsibilities.

The Committee, acting on behalf of the full House of Representatives, has shown that it suffers a concrete and particularized injury when denied the opportunity to obtain information necessary to the legislative, oversight, and impeachment functions of the House, and that its injury would be redressed by the order it seeks from the court. The separation of powers and historical practice objections presented here require no different result. Indeed, the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary.

I.

In March 2019, the House Judiciary Committee ("the Committee") began an investigation into alleged misconduct by President Trump and his close advisors. See H. REP. NO. 116-105, at 13 (2019). Its investigation followed upon publication of the report of Special Counsel Robert S. Mueller. See ROBERT S. MUELLER , III, REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION (2019). During his investigation, the Special Counsel interviewed Donald F. McGahn, II, then serving as White House Counsel. In declining to exonerate the President, the Special Counsel explained that the Office of Legal Counsel ("OLC") in the Department of Justice had opined that indicting or criminally prosecuting a sitting President would violate the separation of powers. See id. , vol. II at 1. The Special Counsel's Report accordingly concluded that impeachment would be the mechanism to address whether President Trump impermissibly coordinated with the Russian government in connection with the 2016 Presidential election or obstructed justice in the course of the Special Counsel's investigation. See id. The Committee's investigation responded to this conclusion.

The Committee's interest in McGahn's testimony therefore arose in furtherance of the "sole Power of Impeachment" vested in the House of Representatives under Article I, section 2, clause 5 of the Constitution, and included consideration of the amendment or enactment of laws on ethical conduct by Executive Branch officials and oversight of the Department of Justice ("the Department") and the Federal Bureau of Investigation to determine if they were operating with requisite independence. Memorandum from Hon. Jerrold Nadler, Chairman, Comm. on the Judiciary, U.S. House of Representatives, to Members of the Committee, at 4–8 (July 11, 2019) (hereinafter "Nadler Memorandum"); H. REP. NO. 116-346, at 132–34, 159–60 & n.928 (2019); H. REP. NO. 116-105, at 13. The Committee requested that McGahn turn over documents related to the President's alleged obstruction of the Special Counsel's investigation. His testimony would, in turn, inform the Committee's determination of whether President Trump had committed impeachable offenses in obstructing the Special Counsel's investigation and whether to recommend articles of impeachment. McGahn's testimony would also inform House oversight and legislative functions in determining the need for legislation to protect federal law enforcement investigations from improper political interference. Nadler Memorandum at 4–8; H. REP. NO. 116-346, at 132–34, 159–60 & n.928; H. REP. NO. 116-105, at 13.

When McGahn, then no longer White House Counsel, declined these requests, the Committee issued a subpoena on April 22, 2019, ordering McGahn to appear at a May 21, 2019, hearing to testify and to produce the requested documents. On May 20, McGahn's successor as White House Counsel informed the Committee that the President had "directed Mr. McGahn not to appear at the Committee's scheduled hearing" because the OLC had opined that close Presidential advisors were "absolutely immune from compelled congressional testimony." Letter from Pat A. Cipollone, White House Counsel, to Hon. Jerrold Nadler, Chairman, Comm. on the Judiciary, U.S. House of Representatives, at 1–2 (May 20, 2019). McGahn's private counsel confirmed that he would not appear. Letter from William A. Burck to Hon Jerrold Nadler, Chairman, Comm. on the Judiciary, U.S. House of Representatives, at 1 (May 20, 2019).

Although agreement was ultimately reached on the production of the subpoenaed documents, McGahn repeatedly rejected the Committee's continuing offers of accommodations in attempting to secure his testimony. Finally, impasse having been reached, the Committee, as authorized by the House of Representatives in H. RES. 430, 116th Cong. (2019), filed suit in the federal district court on August 17, 2019, to enforce its subpoena. The complaint sought a declaratory judgment "that McGahn's refusal to appear before the Committee in response to the subpoena issued to him was without legal justification" and an injunction "ordering McGahn to appear and testify forthwith before the Committee" "as to matters and information discussed in the Special Counsel's Report and any other matters and information over which executive privilege has been waived or is not asserted." Compl. at 53. The Department of Justice has represented McGahn in this litigation.

The district court, in response to the partiescross-motions for summary judgment, ruled that the Committee had both standing and a cause of action to enforce its subpoena, and that the court had subject matter jurisdiction over the lawsuit. On the merits, the district court rejected McGahn's claim of absolute immunity from a congressional subpoena and directed him to appear before the Committee. Because McGahn might be entitled to withhold certain information on the basis of recognized privileges, the district court clarified that the injunction required McGahn only to appear before the Committee, not necessarily to answer any questions. Comm. on the Judiciary, U.S. House of Representatives v. McGahn , 415 F. Supp. 3d 148, 214–15 (D.D.C. 2019).

Upon McGahn's appeal, a divided three-judge panel of this court held that the Committee lacked Article III standing because of separation-of-powers principles and historical practice. Comm. on the Judiciary, U.S. House of Representatives v. McGahn , 951 F.3d 510 (D.C. Cir. 2020). The court granted the Committee's petition for en banc review to consider whether the Committee has standing to seek enforcement of its subpoena in federal court. Order at 2 (Mar. 13, 2020...

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