Can McGahn be Prosecuted for Contempt of Congress?

In a fractured decision, a D.C. Circuit panel has held that the House lacks standing to civilly enforce a testimonial subpoena to former White House counsel Don McGahn. The lead opinion by Judge Griffith concludes, with some caveats, that “Article III of the Constitution forbids federal courts from resolving this kind of inter branch information dispute.” Griffith op. at 2. The problem, he explains, is not that the underlying legal issue (whether McGahn is absolutely immune from congressional subpoenas) is nonjusticiable; a court could resolve that issue in a proper proceeding, such as a prosecution for contempt of Congress or a habeas proceeding arising out of Congress’s exercise of the inherent contempt power. Id. at 22. This type of proceeding, however, does not present a case or controversy that may be adjudicated by a federal court. Id. at 8-9.

Judge Griffith denies that this holding would render Congress “powerless” in its disputes with the executive branch because Congress retains “a series of political tools to bring the Executive Branch to heel.” Griffith op. at 13. He explains that “Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers.” Id.

The conflation of purely political remedies, such as withholding appropriations or harnessing public opinion, with those founded on legal right is some confounding. True, Congress is often able to use such political leverage to obtain information needed to conduct routine oversight of executive agencies. But such tools are hardly adequate when the president is personally motivated to withhold information from Congress. One might as well argue that members of Congress suspected of criminal wrongdoing can be persuaded to turn over potentially incriminating evidence by the president’s threat to veto their pet projects.

Impeachment is also an inadequate remedy, particularly where the president is withholding evidence of impeachable offenses. Threats of impeaching the president for withholding information are unlikely to convince him to turn over incriminating evidence he believes will lead to his impeachment anyway. Moreover, as recent experience demonstrates, the Senate is unlikely to convict the president for withholding evidence, at least as long as his lawyers can advance any legal theory, no matter how tenuous, to support his action.

As Judge Griffith notes, Congress may hold executive officers in contempt if they fail to comply with subpoenas. This, however, constitutes a remedy only if some consequences flow (or at least potentially flow) from the finding of contempt. Otherwise Congress might as well send a strongly worded letter.

In her dissent, Judge Rogers observes that “[t]he traditional means of enforcing Congressional subpoenas, according to McGahn, has been by the criminal contempt statute.” Rogers dissent at 21. This is a convenient position for McGahn to take because “the Department of Justice would almost certainly not pursue a prosecution of McGahn.” Id. Judge Rogers notes OLC’s longstanding position that “the Department of Justice understands itself not to be required to prosecute an Executive Branch official who has declined, on the basis of Executive privilege, to comply with a Congressional subpoena. Id. at 13. Indeed,  this understates the matter because OLC has opined that it would be unconstitutional to prosecute an executive branch official (or, in McGahn’s case, a former executive branch official) under these circumstances. The theory is that prosecuting (or even threatening to prosecute) a subordinate executive official for carrying out the president’s instructions to withhold information from Congress would unconstitutionally burden the president’s authority to protect privileged information.

But is OLC’s position correct? That is to say, would McGahn have a valid defense to a contempt of Congress prosecution even if his absolute immunity objection to the subpoena was itself invalid? The D.C. Circuit panel does not directly address this question, but one does not get the sense from any of the three opinions that McGahn has an obligation to make an independent determination of the subpoena’s validity. Instead, it seems to be assumed that McGahn is obligated (or at least entitled) to follow the president’s instructions even if they are based, to use Judge Henderson’s term, on a “shaky” legal foundation. See Henderson concurrence at 12, 20.

For example, all three judges describe the case as an “interbranch” dispute, thus treating McGahn as more or less of a pass through for the institutional interests of the executive branch. See, e.g., Griffith op. at 2, 7, 9, 11; Henderson concurrence at 5, 20; Rogers dissent at 16, 19. Judge Griffith even goes so far as to say “we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena” without explaining why McGahn, a former government official, is not a “private citizen.” See Griffith op. at 35.

However, at the end of his opinion, Griffith makes the following observation:

The branches may (and will) disagree in good faith about their obligations to one another . . . . But the legitimate scope of that disagreement is not boundless. Instead, the Constitution binds Members of Congress and the Executive Branch by “Oath or Affirmation,” see U.S. Const. art. II, § 1; id. art. VI; 33 U.S.C. § 1331, and those so bound have a duty to conduct themselves with fidelity to the Constitution.

Griffith op. at 36-37. Here the court makes reference to both the presidential oath prescribed by the Constitution and the constitutional/statutory oath provisions applicable to members of Congress and other executive officials. The implication is that neither the president nor his subordinates have “boundless” discretion to withhold information from Congress; one might infer that under some circumstances subordinate executive officials have a duty of fidelity to the Constitution that trumps contrary instructions from the president.

Whether this observation applies to McGahn, though, is anyone’s guess. As a former official, does the oath he took still control his conduct in response to a congressional subpoena? Does he have a duty to second guess the president’s instructions if he believes they were not issued in good faith? And how does this duty relate to the statutory obligation of all witnesses to comply with congressional subpoenas?

The D.C. Circuit does not provide answers to these questions, and we are unlikely to get any unless a future administration decides to prosecute McGahn for contempt of Congress.

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