The , A Constitutional Study

Executive Power vs. the Power of Subpoena

Committee On the Judiciary, United States House of Representatives v. Donald F. McGahn[1]

The proceedings leading up to the impeachment of President Trump have filled the news cycle for the last several months.  One of the more interesting legal proceedings related thereto is the case brought by the House Judiciary Committee (the “Judiciary Committee”) against former White House counsel, Donald F. McGahn (“McGahn”), because McGahn could potentially provide key insights into Trump’s alleged obstruction of Robert Mueller’s probe into Russian interference in the 2016 election and possible collusion with the Trump campaign.

In that case, the Judiciary Committee brought a declaratory judgment action seeking a ruling that McGahn was required to comply with a subpoena to appear and testify before it in connection with its investigation into interference in the 2016 presidential election.  Upon receipt of the subpoena, President Trump directed McGahn to decline to appear before the Judiciary Committee.  Thereafter, negotiations between the Judiciary Committee and current counsel for the President concerning the scope of the requested appearance and request for documents ensued but yielded no result.  The lawsuit followed.

The Department of Justice (the “DOJ”) defended the administration’s position in the case.  Several key findings were made by the United States District Court for the District of Columbia (the “District Court”):

  1. The court had subject matter jurisdiction to hear the case;
  2. The dispute as to whether the former White House Counsel was absolutely immune from compliance was amenable to judicial resolution;
  3. Separation of powers issues did not preclude judicial enforcement of the subpoena;
  4. The Judiciary Committee had Article III standing to seek judicial enforcement of the subpoena; and
  5. Former White House Counsel did not have absolute immunity precluding his forced compliance with the subpoena.

The ultimate finding of the District Court was that McGahn was compelled to appear before the Judiciary Committee and give testimony but could advance legitimate claims against answering certain questions that implicated executive privilege.

The issue of subject matter jurisdiction was resolved easily by invoking federal question jurisdiction in federal courts pursuant to 28 U.S.C. § 1331, which gives federal courts the authority to entertain legal claims that arise under the Constitution and laws of the United States.  The District Court noted that the power of federal courts to review and resolve subpoena-enforcement claims in civil actions is rarely challenged, and federal courts routinely exercise subject matter jurisdiction over disputes concerning subpoenas in cases in which federal claims are being litigated.

In reaching its decision, the District Court relied on its prior opinion in Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D. D.C. 2008), noting that the administration could not identify a single opinion recognizing absolute immunity for senior presidential advisors.  The District Court noted that it is rare for the law to recognize immunity to compulsory legal process.  It was also observed that disputes over Congressional subpoenas are typically resolved through negotiations.

The authority for the legislative subpoena issued by the Judiciary Committee finds its source in Article I of the Constitution providing Congress with the authority to undertake investigations.  The DOJ essentially argued that the president has the authority to make unilateral determinations regarding whether he and his senior level aides will respond to or defy a subpoena issued during a constitutionally-authorized investigation.

The District Court noted that the Constitution empowers each branch of the federal government to be a check on the other branches, and the judiciary’s constitutional check is the power to interpret the law.  History and past practice support judicial resolution of stalemates between the legislative and executive branches with respect to the rights the law establishes and the duties that the law imposes.

When a committee of Congress seeks testimony and records by issuing a subpoena in the context of a duly-authorized investigation, it has the Constitution’s blessing.  If there is fraud, abuse, waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and take appropriate action.  The District Court found unpersuasive the notion that the power to enforce a legislative subpoena was not among the intrinsic rights appurtenant to its constitutional authority.  The judiciary is clearly discernible as the primary means through which constitutional rights may be enforced.

To have Article III standing to bring a matter before a federal court, a litigant must present an actual case or controversy for resolution and have suffered an injury in fact subject to redress by the court.  The Judiciary Committee was found to have such standing to seek redress in the court for the failure of McGahn to comply with the subpoena.  The District Court opined, “it would seem that the law is sufficiently clear that outright defiance of any duly issued subpoena, including the subpoena that the Judiciary Committee issued to McGahn, qualifies as a concrete, particularized, and actual injury for standing purposes.”

The District Court also found that Article I of the Constitution provides the cause that Congress needs to seek a judicial determination regarding the validity and enforceability of a subpoena that is issued in furtherance of its constitutional power of inquiry.  The District Court commented that the DOJ’s position that the power to enforce legislative subpoenas is not among the intrinsic rights that accompany that power granted to Congress was unpersuasive.  It further noted that the DOJ did not cite a single authority that supported the proposition that, under the Constitution, the House had no standing to proceed against the executive branch in federal court.

The District Court relied on the prior Miers decision in concluding that absolute testimonial immunity for senior-level presidential aides has no foundation in law and that such a proposition conflicts with key tenants of constitutional order.

The McGahn case is now on appeal to the United States Court of Appeals for the District of Columbia Circuit.  Stay tuned for more as this unique constitutional issue works its way through the courts.

For further information on the progress of this case, please contact James Schraf at [email protected] or 443-569-0755.

[1] 2019 WL 6312011 (D. D.C. 2019)