Will the Appointment of a Special Counsel Affect a Congressional Referral of Donald Trump for Contempt of Congress?

The Attorney General has appointed Jack Smith to serve as Special Counsel to conduct an investigation of certain matters relating to former President Donald Trump, including “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. §600.4(a).” The regulations at 28 C.F.R. §600.4(a) provide that “[t]he jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”

This jurisdiction does not appear to cover a potential certification by the House, pursuant to 2 U.S.C. §194, of Trump’s failure to appear and/or produce documents in response to the subpoena from the January 6 select committee. Although that subpoena relates to the subject of the Special Counsel’s January 6 investigation and Trump’s defiance of the subpoena constitutes a possible violation of law, I doubt that violation of law in 2022 would be considered to be “in connection with” efforts to interfere with the transfer of power or electoral vote count in late 2020 and early 2021 within the meaning of the appointment order. Similarly, while contempt of Congress under 2 U.S.C. §192 is a violation of law and a federal misdemeanor, Trump’s contempt arose from the congressional investigation, not from either the Special Counsel’s investigation or the prior federal criminal investigation over which he is assuming control. Thus, the Special Counsel will probably not be able to assert direct jurisdiction over such a contempt certification.

However, 28 C.F.R. §600.4(b) provides that “[i]f in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.” Thus, were the Special Counsel to determine that expanding his jurisdiction to include a congressional contempt referral is appropriate under the terms of 28 C.F.R. §600.4(b), it would be up to the Attorney General to make that decision.

It seems to me that there is enough of a link between the Special Counsel’s investigation and a contempt referral of Trump to support an expansion of the Special Counsel’s jurisdiction under this somewhat nebulous standard. After all, the committee’s subpoena relates to factual matters which are directly relevant to the Special Counsel’s investigation, and it may advance that investigation to determine why Trump withheld testimony and documents from the committee. Moreover, a separate part of the Special Counsel’s investigation relates to Trump’s failure to cooperate with government efforts to retrieve classified and other official documents in his possession and Trump’s possible obstruction of a grand jury investigation by failure to produce documents responsive to its subpoena. His refusal to comply with the January 6 committee’s subpoena therefore may demonstrate a pattern of illegal behavior.

Even if the Special Counsel’s jurisdiction were expanded, this does not necessarily mean Trump will be prosecuted for contempt of Congress. The Special Counsel regulations require that the Special Counsel ordinarily “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” 28 C.F.R. §600.7(a). This is the provision that (arguably) prevented Special Counsel Mueller from indicting then-President Trump due to the Office of Legal Counsel’s determination that the Constitution prohibits indictment of a sitting president. Similarly, Special Counsel Smith might be prohibited from prosecuting Trump for invoking testimonial immunity because of the longstanding DOJ/OLC view that a former president is absolutely immune from compelled congressional testimony.

There are, however, several reasons why this view may not (and probably should not) bind Smith. First (and most dubiously), there is the argument (also made with respect to Mueller) that a special counsel is not bound by OLC opinions but is free to reach his or her own conclusions on constitutional questions. Second, although the view that a former president enjoys absolute testimonial immunity has been reflected in opinions and pleadings, it has not to my knowledge been the subject of a formal analysis and opinion by OLC (or DOJ). Thus, in contrast to OLC’s formal opinion that a sitting president cannot be indicted, the department’s position on absolute immunity for former presidents may be fairly characterized as more of an assumption than a definitive opinion. Third (and most importantly), OLC has always viewed the scope of absolute immunity to be limited to official activities. Here there is ample room for the Special Counsel to conclude that at least some of the matters about which the January 6 committee wishes to question Trump are political or personal, rather than official. [Note that if Trump’s legal team takes the position in the litigation over classified documents and presidential records that certain documents in his possession should be considered personal or political, this may cut against his interests here].

Furthermore, even if Smith concludes that Trump is protected by absolute testimonial immunity, this would not prevent prosecution with regard to Trump’s withholding of documents responsive to the congressional subpoena. While there are no doubt those at main Justice who would be reluctant to prosecute a former president for asserting invalid but non-frivolous objections to a congressional document subpoena, these concerns would not appear to rise to the level of a practice or policy that would be binding upon the Special Counsel.

For all of these reasons the appointment of a special counsel makes it substantially more likely that a certification under 2 U.S.C. §194 could actually result in a criminal prosecution of the former president. The January 6 committee should take this into account in deciding how to proceed with regard to Trump’s defiance of its subpoena.

How Should the January 6 Committee Respond to Trump’s Lawsuit?

On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment). In addition, it alleges that the subpoena is invalid for a number of reasons, including that it was not issued for a valid legislative purpose, that it fails the heightened standard of scrutiny established by the Supreme Court for subpoenas of presidential information, and that the January 6 committee lacked authority to issue subpoenas because it was improperly constituted.

All of these claims, in my view, should lose, and I think they all probably would if the litigation ever resulted in a final judgment on the merits. However, as Trump’s lawyers well understand, there is very little chance of that happening before the January 6 committee expires at the end of this Congress, which will most likely moot the case. For Trump’s legal team, the advantage of this lawsuit is that it will buy time and possibly forestall a contempt vote in the House. Continue reading “How Should the January 6 Committee Respond to Trump’s Lawsuit?”

Some Thoughts on the January 6 Committee Subpoena to Former President Trump

As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.

Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.

Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances. Continue reading “Some Thoughts on the January 6 Committee Subpoena to Former President Trump”

Who Loves Testimonial Immunity? Just Us.

The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ brief ultimately concludes that Meadows must provide testimony in this instance, its reasoning may escape serious scrutiny in most quarters. But not on this blog.

So let us count the ways DOJ is full of crap.

  1. DOJ’s fundamental position on testimonial immunity has not changed, and it is still supported by nothing more than ipse dixit.  DOJ reiterates “the Executive Branch’s longstanding position” that “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” DOJ Br. at 7. As it routinely does, DOJ stresses that its position has been consistent over many years and through administrations of both parties, thus proving self-interestedness is a bipartisan phenomenon and little else.

To support this (longstanding- did I mention that?) position, DOJ offers a cursory regurgitation of arguments/assertions it has made many times before: (1) immunity is needed to protect the president’s independence and autonomy; (2) the president’s advisers should not have to appear because their testimony would largely be protected by executive privilege anyway; and (3) without immunity the president’s advisers would be subject to congressional harassment and distraction from their important duties. DOJ Br. at 5-7.

To be sure, DOJ acknowledges that “some judges” have disagreed with its view, citing in a footnote four opinions, two by judges of the U.S. District Court for the District of Columbia and two by judges of the U.S. Court of Appeals for the D.C. Circuit. See DOJ Br. at 7 & n. 4. Left unmentioned is the fact that exactly zero judges have agreed with DOJ’s position or even expressed the slightest interest in adopting it.

More importantly, DOJ makes no effort whatsoever to respond to the judicial criticisms of its position, which were first voiced by Judge Bates in 2008 litigation involving Harriet Miers. See Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 100-06 (D.D.C. 2008). Instead, it simply says that it will adhere to its position unless the D.C. Circuit and/or the Supreme Court definitively reject it. DOJ Br. at 7.

This stance is particularly remarkable because another judge called out DOJ for precisely the same obstinacy in 2019:

DOJ . . . assert[s] that Miers was wrongly decided . . . [and] has emphasized that Miers’s sphere of influence is exceedingly limited. The thrust of the latter contention is that Miers is only one opinion . . . and implicitly, that the law is not established by the word of a single district court judge. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. . . . DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.

Comm. on the Judiciary v. McGahn, 415 F.Supp.3d 148, 203 (D.D.C. 2019). Instead of confronting the analysis in Miers directly or giving the court “any principled reason to interpret the law in a different fashion than Judge Bates did,” the judge noted, DOJ simply dismissed his ruling “before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity.” Id.

The judge in question, of course, was none other than Ketanji Brown Jackson, who recently became the first (and so far only) Supreme Court appointment of the current occupant of the White House. Given that the McGahn opinion was Jackson’s most important and well-known opinion prior to her Supreme Court nomination, one might have expected DOJ to at least acknowledge her harsh criticism of its testimonial immunity theory. One would be wrong.

Judge Jackson went far beyond merely disagreeing with DOJ on the issue of testimonial immunity. She agreed with Judge Bates that DOJ’s legal position “is all but foreclosed by the binding case law Miers cites,” and she dissected at length “the logical flaws in DOJ’s legal analysis.” McGahn, 415 F.Supp.3d at 202. The judge found that “absolute testimonial immunity for senior-level White House aides seems to be a fiction that has been fastidiously maintained over the course of time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Id. at 214. DOJ’s contention “simply has no basis in law,” its argument “truly makes no sense,” and its position is ultimately based on nothing more than “ipse dixit.” Id. at 206-07, 212 & 214.

In short, Jackson makes clear that she does not view this as a close legal question about which reasonable minds can disagree. Either her McGahn opinion was overwrought and hyperbolic, or DOJ’s testimonial immunity theory is utterly without merit. There is no middle ground.

Maybe someone should ask President Biden which it is. Continue reading “Who Loves Testimonial Immunity? Just Us.”

A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine

Last week the Gray Center for the Study of the Administrative State held a programentitled “Congress’s Interbranch Role: The Executive, the Court, and Dobbs.” The first panel focused on conflicts between Congress and the executive, particularly disputes over congressional access to information and executive privilege. The panel, consisting of three DOJ/OLC veterans (Professor Josh Chafetz, who was supposed to represent the congressional perspective on these issues, was unfortunately unable to make it), provided an excellent if somewhat executive-tilting overview of the issues in such disputes.

What struck me in listening was the divergence between the principles underlying standard executive branch doctrine on congressional oversight and the theory that a former president may assert executive privilege. Because the panel did not discuss executive privilege as it relates to former presidents, it is worth expounding on that divergence here.

As explained by Will Levi, who was chief of staff to Attorney General Barr in the Trump administration, the executive branch views executive privilege as consisting of four components: (1) presidential communications- communications between the president and senior staff, as well as communications between senior staff and subordinate officials (or even private citizens!) for purposes of formulating advice to the president; (2) deliberative process- predecisional communications in the departments and agencies or other lower levels of the executive branch; (3) law enforcement information (which often arises in the context of attempts to obtain access to investigative or open case files); and (4) state secrets- information related to national security and foreign policy. Levi noted that the presidential communications and deliberative process privileges were qualified privileges that could be overcome by a sufficient congressional showing of need, but he maintained that the law enforcement and state secrets privileges were “more absolute.”

Continue reading “A Former President’s Authority to Assert Executive Privilege is Incompatible with Executive Branch Doctrine”

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.

Two Lees, One Jackson, and Some Stonewalling

During the confirmation hearings for Judge (soon to be Justice) Ketanji Brown Jackson, she answered written questions for the record from a number of senators, including Senator Mike Lee. One of Senator Lee’s questions (hat tip: Ira Goldman) struck me as odd:

In Committee on the Judiciary v. McGahn, you took an extremely broad view of standing that all but ignored the previous elements of standing that you clung to in Federal Forest Resource Coalition (individualized injury). Setting aside the merits of the underlying controversy, your opinion never once mentions the phrase “political question.” Isn’t a case where the legislative branch is suing the executive branch a quintessential political question?

One problem with this question is that it was based on a false premise—as she pointed out in her answer, Jackson’s opinion in McGahn did in fact (more than once) use the phrase “political question” and it did so in the context of explaining why the political question doctrine was inapplicable to the case before her.  See, e.g., Comm. on the Judiciary v. McGahn, 415 F. Supp.3d 148, 178 (D.D.C. 2019) (“[T]he Supreme Court has specifically confirmed that not all legal claims that impact the political branches are properly deemed non-justiciable political questions.”).

To be sure, Jackson’s discussion of this issue was somewhat in passing. Her primary point was that the Justice Department’s legal arguments on standing and separation of powers sounded like attempts to evoke the political question doctrine without grappling with well-established limits on that doctrine. See id. at 177-78. But because the Justice Department (representing McGahn) did not actually assert that the political question doctrine applied, the judge presumably thought it unnecessary to discuss the doctrine in depth. Perhaps Lee should ask the Justice Department why it did not think McGahn presented a “quintessential political question.”

I think I can save him the trouble, though. There was a time when legal scholars (to the extent they thought about the issue) very likely would have agreed with the sentiment expressed in Lee’s question. As one noted constitutional expert wrote long ago: “In 1958, when the reach of the political question doctrine was far broader than it is today, no lesser an authority than Judge Learned Hand expressed the view that such a dispute [over a congressional subpoena] between two branches of government was a clear example of a nonjusticiable constitutional question.” Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. Rev. 231, 266 (1978). For the last 60 years, though, the law has rejected such a broad view of political questions. Continue reading “Two Lees, One Jackson, and Some Stonewalling”

Lawfare Podcast on January 6 Committee and Potential Subpoenas of Members

In today’s Lawfare podcast, Quinta Jurecic hosts Molly Reynolds and me to talk about the January 6 committee’s efforts to question House members about matters pertinent to its investigation.

The more I think about it, the more I lean toward the view that if the committee decides to subpoena members, it will pursue enforcement by means of a civil lawsuit, rather than a criminal contempt referral or some sort of internal disciplinary proceeding. This will allow the committee to keep attention focused on the fact that these members are refusing to provide information (as well as require them to explain their reasons for doing so in court), while minimizing their ability to claim political martyrdom. It also will allow the committee to avoid bringing the matter to the floor; a civil action can be authorized by the Bipartisan Legal Advisory Group without forcing rank and file members to vote on a politically charged matter. The committee can also point to some precedent for such an action; the Senate Ethics Committee brought suit against Senator Packwood to enforce its subpoena for his diary.

The downside is that the case will probably take too long for the committee to get any useful information this year. That’s why the committee has refrained from using this method of enforcement for other witnesses. But here the committee is more concerned with the potential political consequences and the internal precedent regarding subpoena of members; recognizing that they may soon be in the minority, Democrats do not want it to be too easy for House committees to subpoena members in the future.

House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal

Friday was the day Don McGahn finally spoke to the House Judiciary Committee, though he did so behind closed doors pursuant to an agreement reached between the committee and the Biden Justice Department. What McGahn has to say may or may not be of some public interest, but it is unlikely to be as important as the agreement itself.

Background  

McGahn, you may recall, was White House counsel in the early part of the Trump administration. In the spring of 2019, well after McGahn had left his position and returned to private life, the committee subpoenaed him to give testimony in its investigation into matters related to the Mueller report. The attachment to the subpoena, which instructed McGahn to bring documents still in his possession regarding certain specified matters, gives some indication of the broad spectrum of topics upon which the committee was seeking to question him. Most of these were subjects covered to some extent by the Mueller report, but Mueller did not necessarily report on McGahn’s involvement in all of them. For example, the subpoena sought documents on potential presidential pardons for various individuals, including Paul Manafort, Michael Flynn and Roger Stone (all of whom later received pardons), but the Mueller report does not reveal what, if any, role McGahn may have had in pardon discussions.

McGahn refused to appear for his deposition based on instructions from President Trump, who invoked the longstanding but highly controversial executive doctrine that senior presidential aides enjoy absolute immunity from compelled congressional testimony regarding their official duties. The committee thereupon commenced a federal lawsuit seeking a court order requiring McGahn to appear. The Trump Justice Department, representing McGahn in the lawsuit, offered three primary arguments for dismissal of the suit: (1) constitutional separation of powers principles establish that a congressional committee lacks standing to sue for enforcement of a subpoena; (2) the committee’s suit lacked statutory authorization; and (3) McGahn was absolutely immune from compelled congressional testimony regarding his service as White House counsel.

These arguments met with what might be charitably described as a mixed reception by the courts. The district judge (Kentaji Brown Jackson, now a nominee to the D.C. Circuit) firmly rejected all three arguments, reaching identical conclusions on these questions as had another district judge (John Bates) in a similar case in 2008. Judge Jackson issued a lengthy opinion excoriating the Justice Department’s legal arguments. She was particularly incredulous of DOJ’s position that the president, as the “owner” of this alleged immunity, could exercise absolute control over the communications of his aides, even after they left the government. This assertion “brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life” and was inconsistent with the proposition that “Presidents are not kings” and “do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

McGahn appealed to the D.C. Circuit, where he initially met with more success. A three judge panel ruled 2-1 that the committee lacked standing to sue, holding in an opinion written by Judge Griffith that the case presented an interbranch dispute that must be resolved through political negotiation and accommodation rather than by the judiciary. Judge Rogers vigorously dissented from the majority’s “extraordinary conclusion” which, she contended, “removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”

It should be noted that nothing in the panel’s ruling suggests any inclination to support the Justice Department’s position on absolute immunity. To the contrary, Judge Griffith, while noting there was no need to reach the merits, obliquely referenced the president’s “blatant refusal to cooperate with the Committee’s investigation into his alleged wrongdoing” and warned that while the political branches may “disagree in good faith about their obligations to one another . . . the legitimate scope of that disagreement is not boundless.” Judge Henderson, concurring, went further, criticizing McGahn’s “absolutist stance” which “rests on somewhat shaky legal ground.” Judge Rogers agreed with Judge Henderson that if the court were to reach the merits “McGahn would be unlikely to prevail” and noted that the Supreme Court’s decision in United States v. Nixon “would appear to foreclose McGahn’s argument on the merits.”

In any event, the full D.C. Circuit granted rehearing en banc and concluded in a 7-2 decision (Griffith and Henderson being the only dissenters) that the committee did in fact have standing to seek judicial enforcement of its subpoena. The majority opinion by Judge Rogers, however, did not address the other issues raised by McGahn, instead remanding the case to the original panel to address those issues.

The panel then again split 2-1 on the question whether the committee had a cause of action to enforce its subpoena, with Judge Griffith again writing (on the last day before his retirement) the majority opinion which held that a congressional subpoena enforcement action against the executive branch would require specific statutory authorization, which Congress had failed to enact despite repeated attempts over the years. Judge Rogers again dissented, finding both that the committee had an implied cause of action under the Constitution and a cause of action pursuant to the Declaratory Judgment Act. Judge Rogers also addressed the merits, finding that the absolute immunity theory was based on “a view of Presidential power expressly rejected by the Supreme Court” in Nixon.

The case did not end there, however. The full court agreed again to review the panel’s ruling en banc. By this time, though, it was well into the fall of 2020, and the court set argument for February 2021, when there would be a new congress and (as it turned out) a new administration.  Continue reading “House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal”