Checking the Office of Legal Counsel

As discussed in this Lawfare article by William Ford of Protect Democracy, the House Select Committee on the Modernization of Congress has asked GAO to study the feasibility of establishing a Congressional Office of Legal Counsel (COLC) to act as a congressional analogue to the Office of Legal Counsel (OLC) in the Department of Justice. The idea would be that COLC could issue opinions on controversial separation-of-powers subjects reflecting the views and perspectives of the legislative branch and thereby function as a counterweight to OLC’s invariably pro-executive positions.

The Lawfare article thoughtfully describes the pros and cons of establishing a COLC. I am skeptical of the idea myself, but I look forward to GAO’s analysis of the issue. In the meantime, there are steps that can be taken to level the playing field between Congress and the executive branch in terms of constitutional analysis.

For example, in recent testimony for the House Appropriations Subcommittee on the Legislative Branch, I proposed one small step. The House Counsel’s website could be significantly upgraded to provide more information about its legal functions, including “non-privileged information about its legal advice and representation, including court filings, legal opinions and select explanatory or historical documents that would shed light on its operations and the legal views of the House.” This would provide some modest counterbalance to OLC, which maintains an extensive (though selective) database of its opinions on its website.

Another check on OLC would be to obtain more transparency with respect to some of its most controversial opinions. For example, I have a FOIA request to OLC which seeks information about the January 19, 2020 opinion that it submitted in the first Trump impeachment trial. Specifically, I want to find out if the legal advice that it claimed to have given the administration in October 2019 was before or after the October 8, 2019 letter in which White House Counsel Pat Cipollone told the House it would not comply with any subpoenas relating to its investigation of the former president’s efforts to withhold military aid from Ukraine. So far I have not gotten much (a shocker, I know), but still I persist.

There are many other ideas for reining in executive constitutional overreach. In his recent book The Living Presidency, Professor Sai Prakash has suggestions ranging from defunding the White House Counsel and OLC (p. 255) to having Congress issue its own declarations on controverted constitutional issues (p. 265). Similarly, Professor Emily Berman, in Weaponizing the Office of Legal Counsel proposes a number of reforms, including requiring OLC to include “dissenting opinions” as part of the opinion-writing process and increasing the use of details to Congress to give executive branch lawyers from OLC and elsewhere a better sense of the congressional perspective on disputed constitutional matters.

Thus, there is no shortage of ideas for leveling the legal playing field between Congress and the executive branch. Getting Congress to pay attention to these issues when they are not in the headlines is, however, another matter.

January 6 Litigation and Federal Court Authority to Resolve Congressional Subpoena Disputes

As litigation regarding the subpoena and investigatory authority of the January 6 select committee proliferates, it is worth stepping back and asking a question that apparently is not being asked in any of these cases: do federal courts have the authority to adjudicate the merits of these disputes?

When a congressional committee first sought the assistance of a federal court to enforce a subpoena for executive branch information, the defense explained that “entry into the federal court is like opening a safe deposit box, where two separate keys are required.” Brief of Richard M. Nixon in Opposition to Plaintiffs’ Motion for Summary Judgment at 9, Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) (No. 1593-73), reprinted in Appendix to the Hearings of the Senate Select Comm. on Presidential Campaign Activities, Legal Documents Relating to the Select Comm. Hearings, Part I, 93d Cong., 1st sess. 813 (Comm. Print June 28, 1974). The first key was constitutional justiciability; the second was statutory authority. Nixon argued that the Senate Watergate Committee lacked both keys.

For the moment, the question of constitutional justiciability has been settled, at least in the D.C. Circuit, by the ruling in Comm. on the Judiciary v. McGahn, 968 F.3d 755 (D.C. Cir. 2020) (en banc), where the court held that congressional committees have Article III standing to seek judicial enforcement of their subpoenas. While one might argue that this decision does not resolve all potential justiciability issues, the court’s reasoning seems likely to foreclose any successful challenge to the constitutional justiciability of controversies arising from the enforcement of congressional subpoenas, including those that involve attempts to obtain executive branch information.

The question of statutory authorization is murkier and messier. Whether there needs to be explicit statutory authorization to bring a suit to enforce a congressional subpoena remains open. Nearly a century ago, when a congressional committee first sought judicial assistance to enforce a subpoena, the Supreme Court rejected the suit on the ground that the committee lacked authorization to sue, though it left open whether such authorization required statutory enactment or could be accomplished by resolution of a single house. See Reed v. Cty Commissioners, 277 U.S. 376, 388 (1928). When a congressional committee next attempted to enforce a subpoena (the aforementioned Watergate case), Judge Sirica initially dismissed the case because there was no specific jurisdictional statute authorizing such suits. See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51, 61 (D.D.C. 1973) (“The Court has here been requested to invoke a jurisdiction which only Congress can grant but which Congress has heretofore withheld.”). This problem was solved when Congress passed (and Nixon reluctantly signed) a bill specifically providing for federal court jurisdiction over subpoena enforcement suits by the Senate Watergate Committee (a broader bill that would have applied to suits by all congressional committees passed the Senate but not the House).

Since then there have been many developments, but on balance they are inconclusive. On the one hand, the statute governing general federal question jurisdiction (28 U.S.C. § 1331) was amended to eliminate the amount in controversy requirement, thereby obviating Sirica’s objection to the Senate committee’s attempt to rely on this statute. In the 1980s the Justice Department took the position that this statutory change enabled congressional committees to sue for enforcement of their subpoenas. See Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 Op. OLC 68, 87-88 (1986). When the House Judiciary Committee sued to enforce subpoenas to George W. Bush administration officials, the Justice Department conceded that § 1331 provided jurisdiction over the matter, but it contended that the committee lacked a required statutory cause of action. Judge Bates agreed with it on the first point but not on the second. Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53, 64, 78-94 (D.D.C. 2008). In subsequent cases DOJ withdrew its concession on jurisdiction, but several other district courts have agreed with Judge Bates on both points. See, e.g., Comm. on the Judiciary v. McGahn, 415 F.3d 148, 174-76, 193-95 (D.D.C. 2019) (Ketanji Brown Jackson, J.).

On the other hand, Congress has arguably acted as if express authorization for subpoena enforcement actions is required by repeatedly debating (but not passing) broad statutory authorizations and by passing narrower authorizations (such as the statute providing for enforcement suits by Senate Legal Counsel) that apply only to a subset of subpoena enforcement matters. Moreover, a D.C. Circuit panel recently issued an opinion, since vacated, holding that congressional subpoenas are judicially unenforceable in the absence of specific statutory authorization. See Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Aug. 31, 2020) (holding that the committee lacked a cause of action to enforce its subpoena).

In contrast to the past controversy over congressional subpoena enforcement suits, however, the January 6 cases have proceeded without apparent objections regarding the absence of express statutory authorization, either with regard to subject matter jurisdiction or cause of action. The plaintiffs in these cases rely on §1331 for subject matter jurisdiction, and they presumably would (if challenged) make more or less the same cause of action arguments that congressional committees have advanced in subpoena enforcement cases.

The January 6 cases are different only in that the plaintiffs are the subpoena recipients, rather than the subpoena issuer. It is possible that this is a relevant distinction, but it is not obvious why. As a textual matter, it is difficult to explain how an action brought by a subpoena recipient to enjoin enforcement is one “arising under the Constitution” within the meaning of §1331, but an action by a committee to enforce the very same subpoena would not be.

From a policy standpoint, a regime in which the recipients of congressional subpoenas could avail themselves of judicial remedies, but the committees cannot, is not one that Congress would have chosen. But from Congress’s perspective the most important thing is to obtain clarity on what the state of the law is. To that end it is desirable that the courts address these issues in the January 6 litigation, however they may be resolved.