Committee on Judiciary , United States House of Representatives v. McGahn

Decision Date25 November 2019
Docket NumberCiv. No. 19-cv-2379 (KBJ)
Citation415 F.Supp.3d 148
Parties COMMITTEE ON the JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff, v. Donald F. MCGAHN II, Defendant.
CourtU.S. District Court — District of Columbia

Seth Wayne, Annie L. Owens, Joshua Geltzer, Institute for Constitutional Advocacy and Protection, Adam Anderson Grogg, Josephine T. Morse, Megan Barbero, Sarah Edith Clouse, Todd Barry Tatelman, Douglas N. Letter, U.S. House of Representatives Office of General Counsel, Washington, DC, for Plaintiff.

Elizabeth J. Shapiro, James J. Gilligan, Steven A. Myers, Andrew Marshall Bernie, Cristen Cori Handley, James Mahoney Burnham, Serena Maya Schulz Orloff, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

TABLE OF CONTENTS

II. BACKGROUND...155
B. Committee on the Judiciary, U.S. House of Representatives v. Miers ...160
IV. ANALYSIS...171
A. Federal Courts Have The Power To Adjudicate Subpoena-Related Disputes Between Congress And The Executive Branch...173
1. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over Subpoena-Enforcement Claims Under 28 U.S.C. § 1331...174
2. Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute...176
a. The legal claim at issue here is not non-justiciable...177
b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process...179
c. Traditional separation-of-powers principles do not support DOJ's suggestion that the federal courts cannot resolve legal disputes between the other branches of government...184
I. INTRODUCTION

In 2008, in the context of a dispute over whether the Committee on the Judiciary of the House of Representatives ("the Judiciary Committee") had the power to compel former White House Counsel Harriet Miers and then-White House Chief of Staff Joshua Bolten to testify and produce documents in connection with a congressional investigation, the Department of Justice ("DOJ") made three legal contentions of "extraordinary constitutional significance." Comm. on the Judiciary, U.S. House of Representatives v. Miers , 558 F. Supp. 2d 53, 55 (D.D.C. 2008) (Bates, J.). First, DOJ argued that a duly authorized committee of Congress acting on behalf of the House of Representatives cannot invoke judicial process to compel the appearance of senior-level aides of the President for the purpose of receiving sworn testimony. See id. at 66–67, 78. Second, DOJ maintained that a President can demand that his aides (both current and former) ignore a subpoena that Congress issues, on the basis of alleged absolute testimonial immunity. See id. at 100. And, third, DOJ asserted that the federal courts cannot exercise subject-matter jurisdiction over any such subpoena-related stalemate between the Legislature and the Executive branch, on separation of powers grounds. See id. at 72–73, 93–94. The district court that considered these propositions rejected each one in a lengthy opinion that thoroughly explained why the federal courts have subject-matter jurisdiction over such disputes, see id. at 64–65 ; why the Judiciary Committee had standing to sue and a cause of action to proceed in federal court, see id. at 65–94 ; and why the claim that a President's senior-level aides have absolute testimonial immunity is meritless, see id. at 99–107. Most importantly, the Miers opinion also persuasively demonstrated that DOJ's conception of the limited power of both Congress and the federal courts relative to the expansive authority of the President—which, purportedly, includes the power to shield himself and his aides from being questioned about any aspect of their present or former White House work—is not grounded in the Constitution or in any other federal law. See id. at 99, 106–07 ; cf. Comm. on Oversight & Gov't Reform v. Holder , 979 F. Supp. 2d 1, 10–11 (D.D.C. 2013).

The more things change, the more they stay the same. On May 20, 2019, President Donald J. Trump directed former White House Counsel Donald F. McGahn II to decline to appear before the Judiciary Committee in response to a subpoena that the Committee had issued to McGahn in connection with its investigation of Russia's interference into the 2016 presidential election and the Special Counsel's findings of fact concerning potential obstruction of justice by the President. (See Letter from Pat A. Cipollone, Counsel to the President, to William A. Burck (May 20, 2019), Ex. E to Decl. of Michael M. Purpura ("Purpura Decl."), ECF No. 32-3, at 46–47.)1 Months of negotiations ensued, which produced no testimony from McGahn, and on August 7, 2019, the Judiciary Committee filed the instant lawsuit. Invoking Article I of the U.S. Constitution, the Judiciary Committee implores this Court to "[d]eclare that McGahn's refusal to appear before the Committee in response to the subpoena issued to him was without legal justification" (Compl., ECF No. 1, at 53), and it also seeks an "injunction ordering McGahn to appear and testify forthwith before the Committee" (id. ).

The Judiciary Committee and DOJ (which is representing McGahn in the instant legal action) have now filed cross-motions for summary judgment, which are before this Court at present. (See Pl.'s Mot. for Prelim. Inj. or, in the alternative, for Expedited Partial Summ. J. ("Pl.'s Mot."), ECF No. 22; Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 32.) In its motion, the Judiciary Committee reiterates the basic contention that, having received a subpoena from a duly authorized committee of Congress exercising its investigative powers under Article I of the Constitution, "McGahn is legally obligated to testify" (Mem. in Supp. of Pl.'s Mot. ("Pl.'s Mem."), ECF No. 22-1, at 14), and "has no valid interest in defying the Committee's subpoena" (id. at 54). In response, DOJ renews its (previously unsuccessful) threshold objections to the standing and right of the Judiciary Committee to seek to enforce its subpoenas to senior-level presidential aides in federal court, and it also robustly denies that federal courts have the authority to exercise subject-matter jurisdiction over subpoena-enforcement claims brought by House committees with respect to such Executive branch officials. (See Def.'s Mot. at 32–33, 43, 53); see also Miers , 558 F. Supp. 2d at 65–94. DOJ further insists that the Judiciary Committee's claim that McGahn is legally obligated to testify fails on its merits, primarily because DOJ's Office of Legal Counsel ("OLC") has long maintained that present and former senior-level aides to the President, such as McGahn, are absolutely immune from being compelled to testify before Congress if the President orders them not to do so. (See Def.'s Mot. at 60–74.)

For the reasons explained in this Memorandum Opinion, as well as those laid out in Miers , the Judiciary Committee's motion for partial summary judgment is GRANTED , and DOJ's cross-motion for summary judgment is DENIED . In short, this Court agrees with Judge Bates's conclusion that federal courts have subject-matter jurisdiction to resolve legal disputes that arise between the Legislature and the Executive branch concerning the scope of each branch's subpoena-related rights and duties, under section 1331 of Title 28 of the United States Code and the Constitution. See Miers , 558 F. Supp. 2d at 64–65. Jurisdiction exists because the Judiciary Committee's claim presents a legal question, and it is "emphatically" the role of the Judiciary to say what the law is. Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). It also plainly advances constitutional separation-of-powers principles, rather than subverts them, when a federal court decides the question of whether a legislative subpoena that a duly authorized committee of the House of Representatives has issued to a senior-level aide of the President is valid and enforceable, or, alternatively, is subject to the President's invocation of absolute testimonial immunity. Furthermore, Miers was correct to conclude that, given the indisputable Article I power of the House of Representatives to conduct investigations of potential abuses of power and subpoena witnesses to testify at...

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3 cases
  • Comm. on the Judiciary v. U.S. Dep't of Justice (In re Comm. on the Judiciary)
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 10, 2020
    ...and directed Executive Branch officials to testify and produce their relevant documents. See generally Comm. on the Judiciary v. McGahn , 415 F.Supp.3d 148 (D.D.C. 2019) ; Comm. on the Judiciary v. Miers , 558 F. Supp. 2d 53 (D.D.C. 2008). Griffith, Circuit Judge, concurring:I join the opin......
  • Comm. on the Judiciary of the U.S. House of Representatives v. McGahn
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 31, 2020
    ...by the Supreme Court.Accordingly, the judgment of the district court should be affirmed, see Comm. on the Judiciary, U.S. House of Representatives v. McGahn , 415 F. Supp. 3d 148 (D.D.C. 2019), and I respectfully ...
  • Comm. on the Judiciary of the U.S. House of Representatives v. McGahn
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 7, 2020
    ...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 II......
5 books & journal articles
  • Contempt for Oversight and Investigation: Congressional Contemnors, the Grand Jury, and Constitutional Order
    • United States
    • The Georgetown Journal of Law & Public Policy No. 19-2, April 2021
    • April 1, 2021
    ...D.C. Circuit. See Comm. on the Judiciary v. McGahn, 973 F.3d 121 (D.C. Cir. 2020) (vacated ). 111. Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 180 (D.D.C. 2019) rev’d by Comm. on the Judiciary v. McGahn, 973 F.3d 121 (D.C. Cir. 2020) (vacated ) (discussing Kilbourn v. Thompson , ......
  • The Political Remedies Doctrine
    • United States
    • Emory University School of Law Emory Law Journal No. 71-1, 2021
    • Invalid date
    ...Ct. 2412, 2431 (2020) (upholding a state's right to subpoena the President's financial records).160. Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019) (explaining that President Trump ordered McGahn not to testify). 161. See id. at 196-97 (citation omitted) (the argum......
  • Separation-of-Powers Avoidance.
    • United States
    • Yale Law Journal Vol. 132 No. 8, June 2023
    • June 1, 2023
    ...to permit congressional standing in some circumstances. See Ahdout, supra note 26, at 983-84; Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 192 (D.D.C. 2019) (holding that the House has standing to enforce a congressional subpoena against the former White House counsel); Windsor v.......
  • Nixon/trump: Strategies of Judicial Aggrandizement
    • United States
    • Georgetown Law Journal No. 110-1, October 2021
    • October 1, 2021
    ...Judiciary, No. 19-1328, 2021 WL 2742772 (U.S. July 2, 2021). 170. See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 157 (D.D.C. 2019). 171. Id. at 157, 162. 172. Id. at 214–15. 173. Nicholas Fandos, Split Senate Clears Trump on Each Count in Finale of......
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