You Can Take this to the (En) Banc

If we can say one thing for certain in this crazy mixed up world, it is that the full D.C. Circuit will soon be considering whether or when a chamber of Congress may bring suit or otherwise seek assistance of a federal court. There are currently at least three cases before D.C. Circuit panels in which this issue is presented and they do not, to put it mildly, seem to be producing a consensus as to the proper approach or result.


In Comm. on the Judiciary v. McGahn (which presented the question whether the Judiciary committee could sue a former White House counsel to require his compliance with a testimonial subpoena), three separate opinions were written. Judge Griffith wrote the “majority” opinion which held that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.” Griffith op. at 2.

Of critical importance to Griffith was that the lawsuit “has no bearing on the ‘rights of individuals’ or some entity beyond the federal government.” Griffith op. at 8. This assertion is puzzling because the case in fact revolves around whether an individual (McGahn) has the right to ignore a congressional subpoena and whether his failure to obey the subpoena would subject him to criminal penalties and coercive sanctions for contempt of Congress. As the court acknowledges, either a criminal proceeding against McGahn or a habeas proceeding brought by McGahn after the House imprisoned him for contempt would constitute a justiciable case or controversy under Article III. Griffith op. at 22. Presumably, moreover, McGahn would have standing to sue the committee for a declaratory judgment invalidating the subpoena (though such a suit would be barred by the Speech or Debate Clause). In Judge Griffith’s view, however, the committee’s lawsuit against McGahn constitutes an “interbranch information dispute” while these other proceedings, though presenting precisely the same legal issue (whether McGahn was required to comply with the subpoena), would not.

A major element of Griffith’s reasoning is that courts do not want to be dragged into disputes between the political branches. As he notes, if courts are routinely placed in this position, “we risk seeming less like neutral magistrates and more like pawns on politicians’ chess boards.” Griffith op. at 10. This is a reasonable concern, though its relevance to the legal question before the court is debatable. Moreover, courts would be in an even more difficult position if Congress begins arresting recalcitrant witnesses; Judge Griffith is just gambling this won’t happen.

Apart from the reluctance to become involved in politically charged interbranch disputes, Griffith’s decision is founded essentially on “historical analysis,” meaning his view that “[n]either interbranch disputes (in general) nor interbranch information disputes (in particular) have traditionally been resolved by federal courts.” Griffith op. at 14-15. This approach, he contends, is compelled by Raines v. Byrd, 521 U.S. 811 (1997), where the Court based its refusal to recognize standing for individual members of Congress in their challenge to the constitutionality of the Line Item Veto Act in part based on the fact analogous historical disputes had not given rise to lawsuits between the branches.

It is beyond the scope of this post to fully critique Judge Griffith’s opinion, but I will make two observations here. First, his reliance on Raines ignores the numerous distinctions between that case and McGahn, distinctions which are laid out by the dissent (as well as in a prior post here), any one of which, according to the Raines Court itself, could change the outcome.

Second, the historical approach is extremely vulnerable to “looking over a crowd and picking out your friends,” to use an expression often employed to show the uselessness of legislative history. For example, Griffith analogizes the McGahn suit to historical interbranch information disputes, but the latter overwhelmingly were disputes between Congress and the president about access to documents in the president’s control, not disputes over testimony by a private citizen who once was a government official. He observes that “we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena,” Griffith op. at 35, but fails to explain why that is not precisely the case before the court. He also distinguishes United States v. Nixon, 418 U.S. 683 (1974), on the ground that it involved a judicial, not a congressional, subpoena, but prior to 1974 there was no historical precedent for a court ordering the president to comply with either type of subpoena (a point President Nixon unsuccessfully made in attempting to resist the subpoena in that case). In short, “historical analysis” seems to pretty much allow the court to pick out whatever analogy fits with the result it wishes to reach.

Finally, Judge Griffith states “we do not decide whether a congressional statute authorizing a suit like the Committee’s would be constitutional.” Griffith op. at 35. As the dissent points out, this statement seems entirely inconsistent with his claim that Article III bars courts from hearing this type of dispute. It makes one wonder whether Judge Griffith fully believes the rationale he has advanced for rejecting the committee’s standing.

This brings us to Judge Henderson’s unusual concurring opinion. She begins her opinion by rejecting the Justice Department’s position that would “foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute,” explaining that she “do[es] not believe . . . Supreme Court precedent supports a holding of that scope.” Henderson op. at 1. Since this is precisely the position that Judge Griffith accepts (apart from the possible caveat should a statute expressly authorize suit), it appears Judge Henderson does not agree with his reasoning.

Judge Henderson elaborates that existing Supreme Court precedent does not decide the question of whether the Judiciary committee has standing to enforce a subpoena. See Henderson op. at 1 (“[T]he issues [here] are far from being on all fours with Raines.”); id. at 7 (“[T]he Supreme Court’s post-Raines precedent does not categorically foreclose the possibility that the Committee’s asserted injury could support Article III standing.”). Nonetheless, she reads this precedent as being generally hostile to congressional standing. Therefore, rather than identifying which interbranch disputes Congress may bring to the federal courts, Judge Henderson says that task must be left to the Supreme Court. See Henderson op. at 8 (“judicial restraint counsels that we find the Committee lacks standing for want of a cognizable injury”); id. at 9 (“If federal legislative standing is to be given new life, it must be the Supreme Court– not an inferior court– that resuscitates it.”). This seems like an odd approach to take (the judicial equivalent of voting “present”) and leaves me wondering whether the judge might change her vote if the case is reheard en banc.

Judge Rogers issued a vigorous dissent which explains in detail why Raines does not control the case. See Rogers op. at 5 (“each factor that in Raines counseled against the existence of standing is absent here”); id. at 6-13; id. at 14 (“Raines does not support, much less dictate, that the Committee lacks standing here.”). As she points out, the committee’s standing is supported not only by the D.C. Circuit’s pre-Raines precedent, but every court to consider the issue since. See Rogers op. at 19 (“McGahn can point to no federal court that has accepted the argument that Congress lacks standing to file a subpoena-enforcement action in federal court against an Executive Branch official; to the contrary, every court to have taken up the question has determined that the is standing in such a case.”). Moreover, she argues, contrary to Judge Griffith, that rejecting the committee’s standing will reduce rather than increase the chances that the political branches will be able to work out information disputes through negotiation and accommodation. Id. at 24-25 (“Future Presidents may direct widescale noncompliance with lawful Congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena short of directing a Sergeant at Arms to physically arrest an Executive Branch officer.”).

In re Application of the Committee on the Judiciary

In a separate case decided by the D.C. Circuit this week, the Judiciary committee sought access to certain grand jury materials related to the Mueller report. The committee’s application was pursuant to Fed. R. Crim. P. 6(e)(3)(E)(i), which permits the court to authorize disclosure of grand jury materials “preliminarily to or in connection with a judicial proceeding.” On the merits, the three judges agreed that the committee’s application qualified under the rule because a potential impeachment trial is a “judicial proceeding” under the rule.

Judge Rao,  however, dissented on the ground that the committee “lacks standing to seek a compulsory order in a Rule 6(e) proceeding [because] such relief presents an interbranch dispute not traditionally cognizable by the judiciary.” See Rao op. at 2-3 (relying on McGahn).  She denied that historical tradition supported the committee’s standing, noting “[t]he majority and the concurrence fail to identify a single case in which a court has compelled disclosure of grand jury materials to a party without standing.” Id. at 2. To be sure, she acknowledged a number of instances in which courts had granted congressional committees access to grand jury materials, but in each of those cases (according to Judge Rao) the materials were already in the court’s possession or there was no objection by the Department of Justice to producing the materials (and thus no need to order the Department to produce them). Id. at 19-23.

Writing for the majority, Judge Rogers found that the case was proper for judicial resolution because grand jury records belong to the court, not to the executive branch. Rogers op. at 7-10. Therefore, there was no need for the committee to seek a compulsory order to the Justice Department and therefore no need for it to demonstrate standing. Id. at 26 (“Because the Department of Justice is simply the custodian of the grand jury materials at issue however, the instant case is unlike inter-branch disputes where Congress issued subpoenas and directed Executive Branch officials to testify and produce their relevant documents.”). As the court points out, the Justice Department itself declined to raise lack of standing or endorse the argument advanced by Judge Rao.

Judge Griffith wrote separately to further address Judge Rao’s dissent. He distinguishes McGahn on the ground that “this case does not involve a suit between the political branches over executive-branch documents or testimony” but “an application for access to the records of the grand jury, whose disclosure the district court has traditionally controlled.” Griffith op. at 1. The dissent’s focus on possession “elevates form over substance.” Id. at 2. Because the records in question belong to the grand jury (not the executive branch) and are subject to the ongoing supervision of the district court, it should not make any difference whether they are stored in the court’s files or those of the Justice Department. Id.

Griffith also rejects Rao’s criticism, based on his own words from McGahn, that courts should not be getting involved in disputes between the branches, particularly on highly political issues such as impeachment. While agreeing with Rao that “[t]he Judiciary’s proper place in an impeachment fight is typically on the sidelines,” Griffith argues that “as gatekeepers of grand jury information, we cannot sit this one out.” Griffith op. at 2.

But this is not quite right. The court “could” have done what Judge Rao suggested, which is authorize the release of grand jury information but require Congress to use its own compulsory process to force the Justice Department to actually release the information. This would have allowed the Department to withhold the information without any valid legal basis, but this is exactly what the court in McGahn did. While there may be distinctions between the two cases in terms of who “owns” the information in question (the McGahn court treated the information in McGahn’s head as though it were owned by the executive branch, which seems incorrect to me), one could argue that these distinctions also “elevate form over substance.”

The main takeaway from the Rao/Griffith debate is that the historical analysis method employed by both judges is highly subjective, if not incoherent. In McGahn, Judge Griffith rejected D.C. Circuit precedent from the 1970s (Senate Select Committee, AT&T) as judicial precedent because he claimed their reasoning was undermined by Raines, and he rejected them as historical precedent because they were not old enough. In the grand jury case, however, Griffith cites to “seven prior impeachment proceedings” as evidence of a historical practice supporting his position, though all but two of those were from the 1970s onward. Judge Rao, meanwhile, had no problem citing more recent examples in support of her position on historical practice. She cites a 1977 district court opinion (In re Grand Jury Investigation of Ven-Fuel) as historical precedent for the proposition that a congressional committee must have standing to obtain the compulsory assistance of the court with regard to grand jury materials, but she rejected it as judicial precedent for the proposition that such standing exists because the Ven-Fuel court relied on the very D.C. Circuit cases that McGahn overruled. See Rao op. at 19-20 & n. 7.

All in all, the Griffith/Rao debate seems like a good example of looking over a crowd and picking out your friends. Maybe the neutral principle is that Rao has younger friends.

The Border Wall Case

A third case pending before the D.C. Circuit involves the House’s legal challenge to President Trump’s use of emergency powers to fund the border wall. Although this case has not yet been decided, reports from the oral argument suggested that the panel was skeptical of the Justice Department’s arguments against the House’s standing to sue. Given that the House’s standing in the border wall case would seem to be considerably weaker than its standing in the McGahn case, this suggests that at least two other judges on the D.C. Circuit (Millett and Wilkins) are more likely to agree with Judge Rogers than Judges Griffith, Henderson and Rao on the congressional standing issue. In light of the fact that the latter three judges do not agree amongst themselves, it is hard to imagine why the D.C. Circuit would not vote to rehear at least McGahn en banc.

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