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”

ACTUALLY CRIMINAL CONTEMPT MIGHT WORK PRETTY WELL RIGHT ABOUT NOW

I will take the occasion of a tweet by Representative Ted Lieu to make a point so obvious it may have been overlooked. Representative Lieu was responding to a question about why House Democrats have not subpoenaed the administrator of GSA (Emily Murphy, who goes by the adorable twitter handle of @GSAEmily) to ask her why she has not yet ascertained “the apparent successful candidates for the office of President and Vice President” in accordance with the Presidential Transition Act of 1963 (3 U.S.C. § 102 note). Lieu explained:

CONGRESSIONAL SUBPOENAS ARE MEANINGLESS BECAUSE WE CANNOT ENFORCE THEM.

(You can tell he is serious by the all-caps). Lieu goes on to say that GSA would simply ignore a subpoena, and that the House should change its rules to authorize inherent contempt, which would allow the sergeant-at-arms to arrest Murphy or other recalcitrant witnesses and bring them before a committee to testify (and, if they refuse, to try them for contempt before the bar of the House).

Now no one is more concerned than I about the impotence of congressional compulsory process with respect to the executive branch. All options for addressing that problem, including the revival of inherent contempt, should be on table for discussion.

However, the most important thing that the House could do right now to restore respect for its process would be to use the criminal contempt procedure set forth in 2 U.S.C. § 194. Under that provision, when a witness fails to appear, answer questions or produce documents in a congressional investigation, the House or Senate may refer the matter “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

As we have frequently discussed, this provision is normally of little value with regard to executive branch witnesses because the Justice Department, despite the apparently mandatory language of the law, takes the position that it does not require it to take action when a witness asserts an official privilege at the president’s direction. Of course, ordinarily the Justice Department that makes the decision on prosecution is the same as the one that advised the president with regard to assertion of the privilege in the first place. That circumstance does not obtain today. There will be (at least if my twitter feed is to be believed)  a new administration come January 20, 2021, which may be willing to move forward with congressional contempt prosecutions of executive officials (or former executive officials), at least under certain conditions.

In the case of Murphy, for example, there are no grounds that I am aware of, even under the views previously articulated by OLC, for her to refuse to even appear before a congressional committee to discuss her statutory duties with regard to the transition. If she were to simply ignore a subpoena to appear, as Lieu suggests she would, she would be taking a very big risk that a new U.S. attorney for the District of Columbia (the “appropriate” U.S. attorney in this and almost all contempt cases) would decide to prosecute her. I suspect that she would in fact appear pursuant to a subpoena, but if she doesn’t, the House should certainly refer her for prosecution. (If she shows up but refuses to answer particular questions, we can cross that bridge when we come to it.)

Apart from Murphy, the House should be looking at strong contempt cases which could be referred now to the U.S. attorney. Presumably the current (acting) U.S. attorney will take no action on them, but as far as I know there is no way for him to prevent his successor from doing so. If the incoming Biden Justice Department is willing to prosecute one or more of the most egregious cases of executive contempt, that may go some way to restoring effective deterrence. And if it is not willing to do so, that will tell us something as well.

Me and the Committee on Privileges

The Committee on Privileges of the House of Commons, which is reviewing the authority of select committees to compel the production of information and punish for contempt, has published my submission, which provides a general overview of similar dilemmas facing Congress in this area. If you would like to read it (and why wouldn’t you?), click here.

Justice Thomas, the Committee on Manufactures, and the Precedent of 1827

Continuing from my last post, let’s take a closer look at the precedent Justice Thomas considers “particularly significant” for purposes of determining whether Congress may subpoena private documents in a legislative investigation. In 1827, the House Committee on Manufactures (COM), which had been charged with developing a legislative proposal to raise tariffs, asked the House to pass the following resolution: “Resolved, That the Committee on Manufactures be vested with the power to send for persons and papers.” 4 Cong. Deb. 862 (Dec. 31, 1827). Members of the committee believed that it needed to hear from witnesses, particularly representatives of manufacturing interests that would benefit from tariffs, to determine both what goods should be protected and what the optimal tariff amount would be. See id. at 871-73 (Rep. Livingston); 875-76 (Rep. Buchanan).

Here is how Justice Thomas characterizes the ensuing debate over COM’s request:

This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here– that the power to send for persons and papers was necessary to inform Congress as it legislated. [4 Cong. Deb.] at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id. at 865-866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id. at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. at 874.

Dissent at 9.

Thus, Thomas argues that the record shows two things: (1) opponents of the resolution argued that Congress lacked the power to issue subpoenas for private documents as part of a legislative investigation; and (2) the opponents prevailed in the debate, thereby establishing a precedent that Congress lacked such power. As I will show below, Thomas badly misreads what happened in this debate.

The first thing to understand is that the debate was not primarily about the legal principle underlying COM’s request. Rather opponents had a practical and political objection to the request, namely that they feared it was a delaying tactic that would prevent a bill from being passed before the end of the session. See 4 Cong. Deb. 869 (Rep. Mallary) (“It certainly looked very much as if the object of the gentlemen, in introducing such a resolution as this, was merely to produce delay.”); id. at 865 (Rep. Strong) (“If the [requested] power be exercised, there will not be time to report and pass the bill during this session.”); see also id. at 866-67 (Rep. Stewart); 866-67 (Rep. Storrs); James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 177 (1926) (“Northern protection against southern free-trade appeared as the dominant issue and found violent partisans within and without Congress.”).

To be sure opponents also objected to COM’s request on the grounds that it was “novel” and “extraordinary.” See 4 Cong. Deb. 862 (Rep. Strong); id. (Rep. Wright of New York); id. at 874 (Rep. Stewart). Some doubted whether the House had the power to grant the request, although only one clearly took the position it did not. See id. at 877 (Rep. Wood).

In this regard opponents of the resolution focused on the unprecedented nature of giving a committee the power to send for “persons and papers” merely in order “to adjust the details of an ordinary bill.” 4 Cong. Deb. 866 (Rep. Strong). COM’s task, they suggested, was to exercise judgment based on a broad assessment of economic and social conditions (what might be termed “legislative facts” in modern parlance), rather than to investigate specific factual situations. See id. at 869-71 (Rep. Mallary). Thus, while Representative Wood expressed the strict view that “the only cases in which the House has a right to send for persons and papers, are those of impeachment, and of contested elections,” id. at 882, other opponents suggested a more nuanced distinction between gathering information to draft an “ordinary bill” and what today we might call “investigative oversight.” The latter position was more consistent with existing House precedent as a number of committees had been authorized to exercise compulsory powers for nonimpeachment investigations (including the St. Clair, Wilkinson, and Calhoun investigations). See Landis, supra, at 170-77; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 36-37, 53-54, 64-66, 86-93 (1928).

What is most important, however, is that no one argued that there was something special, either constitutionally or as a matter of House precedent, about giving COM the power to demand the production of private documents (or any documents). The issue was whether COM should have any compulsory powers, not whether it should have the power to call for papers in particular. Indeed, the debate makes clear that COM’s interest was in hearing from witnesses; there is no indication it wished to obtain documents.

It is simply not accurate to suggest, as the dissent does, that opponents “prevailed” on removing COM’s power to call for documents. What actually happened was that Representative Oakley proposed an amendment to the resolution adding the words “with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods.” 4 Cong. Deb. 868. The purpose of the proposed amendment (which did not affect the power to call for documents) was to address the objection that COM’s proposed resolution, unlike prior resolutions of this nature, did not specify the purpose for which the power was granted.

Oakley’s amendment mollified no one. Representative Stevenson, a supporter of the original resolution, noted that requiring the committee to submit a detailed report would create the kind of delay opponents feared. 4 Cong. Deb. 869. Representative Mallary, an opponent, remarked “that he could not perceive that the amendment varied in the least the principle of the resolution.” Id. at 869.

Nonetheless, Oakley persisted. He offered a new version of his amendment which he suggested would address the concern expressed by Stevenson. The new amendment was in the nature of a substitute for the original resolution, and it provided in full: “That the Committee on Manufactures be empowered to send for, and to examine persons on oath, concerning the present condition of our manufactures, and to report the minutes of such examination to this House.” 4 Cong. Deb. 873.

This revised amendment appears to have done nothing to soften the opposition of the pro-tariff side. See 4 Cong. Deb. 873 (Rep. Stewart) (noting that he “thought his amendment was substantially the same as the other”). Supporters of the resolution, on the other hand, found it acceptable. See id. at 875 (Rep. Buchanan) (“I am in favor of the amendment proposed by [Oakley]; not because it varies in principle from the resolution reported by the Committee on Manufactures, but because it expresses more fully and distinctly the objects which that committee had in view.”). Though Oakley’s revised amendment did not appear to change any minds, the House accepted it and ultimately approved the resolution as amended. Id. at 888, 890.

Oakley’s revised amendment did eliminate the authorization for COM to call for papers. This, however, was not the expressed purpose of the amendment, and it is unclear whether the omission was even intentional. Oakley himself never mentioned it, and it attracted little attention from anyone else. Representative Wright of New York noted the omission and suggested that Oakley might want to modify the amendment to authorize COM to require witnesses to bring the books of their establishments when they appeared to testify. 4 Cong. Deb. 879. Although no one else followed up on this suggestion, one of the opponents of the resolution (confusingly also named Wright, but from Ohio) attacked Wright of New York for making it. See id. at 885 (“Are gentlemen prepared, sir, to establish an inquisition in this country, that shall pry into the business concerns of individuals, upon common subjects of general legislation?”). Other than this rhetorical jab, no one appeared to care about the issue at all.

There is, in short, nothing to suggest that anyone, including Oakley himself, voted for the revised amendment because it eliminated COM’s power to call for papers. If there were “swing voters” who supported the resolution because of this modification, there is nothing in the record to so indicate. Not a single member argued that the power to call for papers raised a separate constitutional issue or that the elimination of this power affected the constitutionality or propriety of the resolution.

The House’s ultimate adoption of the resolution has been uniformly understood as establishing a precedent in favor of the House’s authority to use compulsory powers for purposes of aiding the drafting of legislation. See Landis, supra, at 177-78; Eberling, supra, at 94-98; Telford Taylor, Grand Inquest: The Story of Congressional Investigations 34 (1955). No commentator has suggested “the opponents prevailed” or interpreted the result as a precedent against the House’s authority to compel the production of documents. Cf. Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957 17 (1959) (“Throughout its history Congress has been aware that this power [to compel the production of documents and papers] is necessary to gather facts in aid of a legislative purpose and to serve as a watchdog upon the executive branch of the government.”).

As Justice Thomas notes, controversy over the extent of congressional compulsory powers did not end in 1827. Dissent at 9-11. However, his discussion of these subsequent controversies overlooks that: (1) like the 1827 debate, they involved whether compulsory powers generally, not the power to compel the production of documents in particular, could be employed in certain types of investigations; (2) those who opposed the use of compulsory powers did not assert the 1827 vote as a precedent in their favor; and (3) these later controversies also invariably were resolved in favor of the compulsory power. Thus, to the extent that Justice Thomas believes that Congress lacks any compulsory power in legislative investigations, he is not asserting a novel position, but one that has been repeatedly rejected by both houses of Congress over two centuries. On the other hand, the idea that Congress specifically lacks the power to compel the production of documents has not only been (impliedly) rejected, it does not appear to have been even asserted.

Thomas’s dissent also alludes to the possibility that congressional subpoenas for documents might violate the Fourth Amendment. See Dissent at 7. This is a different legal argument than the claim Congress lacks the power to subpoena documents in the first place. This argument was raised on at least one occasion of which I am aware, although interestingly the dissent does not cite it. When the original contempt of Congress statute was introduced in 1857, Representative Israel Washburn questioned whether making it a crime to withhold papers from Congress would be consistent with the Fourth Amendment. See David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861 222 (2005). Washburn asked “Are you not by this bill dispensing with the conditions and requirements of the Constitution and endeavoring to obtain the possession of private papers without warrant issued upon probable cause, and supported by oath or affirmation?” Id.

It was perhaps an interesting question, though Professor Currie reports that “no one condescended to answer Washburn’s objection.” Of course, if taken seriously, the objection would call into question all congressional as well as judicial document subpoenas and, as Currie notes, has long since been settled by the Supreme Court against Washburn. See id. at 222-23 & nn. 98, 100. It is unclear how throwing the Fourth Amendment into the mix advances Justice Thomas’s argument.

 

Justice Thomas’s Dissent in Trump v. Mazars

Today I will discuss Justice Thomas’s dissent in Trump v. Mazars USA, LLP. Specifically, I will consider how Thomas uses historical practice and precedent to support his claim that “[a]t the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’s legislative powers.” Mazars, slip op. at 3 (Thomas, J., dissenting) (hereinafter “Dissent”).

The starting point for Justice Thomas is that the House has no express power to issue legislative subpoenas and thus it may only be found to have such power if it can “be necessarily implied from an enumerated power.” Dissent at 3. This in itself is fairly noncontroversial, leaving aside the longstanding debate whether “necessary” means absolutely necessary, merely convenient, or somewhere in between. See Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188-208 (2003).

The challenges for Justice Thomas’s position are two-fold. First, as he acknowledges, the Supreme Court long ago decided this issue against him when it declared the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Although Thomas points out that McGraindid not involve document subpoenas, he does not contest that its language and reasoning are broad enough to cover such subpoenas, and he acknowledges that subsequent cases have applied it to uphold legislative subpoenas for private documents. Dissent at 14. Nonetheless, he contends that McGrain and its progeny should be disregarded because “this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it.” Id.

This brings us to the second challenge. Even if we assume away the McGrain line of cases, Congress has been issuing legislative subpoenas for private documents for nearly two centuries, even by Thomas’s own reckoning. So in what sense might historical practice demonstrate that the original meaning of Article I does not encompass a congressional power to issue such subpoenas? According to the dissent, the key precedent occurred in 1827, when the Committee on Manufactures (COM) sought the power to subpoena documents and the House rejected the request as “unprecedented.” Dissent at 8. But even if this were true (and we will see that it is not), this would establish only that the issue was unsettled at that point in time. If a majority of the House had determined in 1827 that it lacked the constitutional authority to issue subpoenas for private documents, this would tell us little or nothing about the intent of the founders on this issue. Nor could it have constituted a “constitutional liquidation”  of the issue because, as Thomas acknowledges, the House reversed its (alleged) decision within the next ten years and has followed the practice of issuing such subpoenas ever since. See Dissent at 9-11; see generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).

Perhaps one could make the argument that the absence of any history of issuing legislative document subpoenas prior to 1827 demonstrates that this power was not truly “necessary” in the sense required to make it incidental to the legislative power. If this is Thomas’s argument, however, he does not make it explicitly. To the contrary, he criticizes the McGrain Court for adopting “a test that rested heavily on functional considerations.” Dissent at 16. Although he offers his view that “the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers,” this “functional” assertion appears in a footnote and is not central to the dissent’s analysis. See Dissent at 17 n.6.

The “key moves” in the dissent’s argument serve to define the universe of relevant practice and precedent so narrowly that none exists prior to the Committee on Manufactures’ request in 1827. First, Thomas insists that only precedent involving the production of private papers, rather than official papers or witness testimony, is relevant. See Dissent at 6. Second, he assumes that the actual exercise of the subpoena or compulsory power, as opposed to the mere authorization of such power by the legislative body, is required to establish a persuasive precedent. Third, he discounts precedents from Parliament and (to a lesser degree) the colonial and early state legislatures on the ground that these bodies are not “exact precursor[s]” to Congress, which has more limited powers. See Dissent at 3-7. Finally, he contends that precedents established in the exercise of nonlegislative functions (such as impeachment, discipline of members, and other quasi-judicial functions) are unpersuasive to establish the existence of a like legislative power. Dissent at 6-7.

This approach allows the dissent to ignore the fact that the practice of investing legislative committees with the power to send for “persons and papers” dates back to the early 17thcentury. Telford Taylor, Grand Inquest: The Story of Congressional Investigations 7 (1955). It was commonly used by Parliament, the colonial assemblies, and the early state legislatures to empower committees to conduct a wide variety of investigations, including those related to election contests, breaches of privilege, government misconduct or maladministration, and proposed legislation. See Taylor, Grand Inquest at 7-12; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 14-30 (1928); James M. Landis, Constitutional Limitations on the Power of Investigation, 40 Harv. L. Rev. 153, 161-68 (1926); C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 708-15 (1926). While this power was usually provided in connection with a specific investigation, in 1781 the Virginia House of Delegates provided four standing committees (on religion, privileges and elections, courts of justice, and trade) with general power to “send for persons, papers, and records for their information.” Potts, 74 U. Pa. L. Rev. at 716.

The dissent apparently would view this ample historical precedent to be of little weight in the absence of evidence that any of these committees actually subpoenaed private papers or that any witness was punished for withholding them. But given the large number of these investigations and the wide variety of subjects they covered, it is not credible to suggest the term “papers” was understood to be limited to “official papers.” The dissent cites no evidence to suggest that anyone at the time understood these authorizations to be so limited, nor do any of the scholars who have studied these investigations advance such an interpretation.

The dissent’s narrow reading of precedent extends to early congressional practice. Take, for example, the House’s 1792 investigation into General St. Clair’s failed military expedition, which the McGrain Court viewed as significant evidence that the founders understood the power to compel the production of information as an inherent attribute of the legislative power. See McGrain, 273 U.S. at 161, 174. The House empowered the investigating committee “to call for such persons, papers and records as may be necessary to assist their inquiries.” As the McGrain Court understood (and Justice Thomas does not dispute), this language authorized the committee to demand the production of evidence with the implicit backing of the House’s compulsory powers.

According to the dissent, the St. Clair committee “never subpoenaed private, nonofficial documents, which is telling.” Dissent at 7. However, there is nothing in the language of the House’s resolution or in the contemporaneous congressional debates to suggest that the committee’s compulsory authority did not extent to private persons or papers. To the contrary, a significant part of the committee’s investigation involved evaluating the performance of private contractors and the quality of goods they supplied to General St. Clair’s army. See, e.g., I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History 1792-1974 39 (1983) (committee report of May 8, 1792 noting complaints “as to tents, knapsacks, camp kettles, cartridge boxes, packsaddles, &c. all of which were deficient in quantity and bad in quality”). If the committee were precluded from obtaining information from the contractors or compelling the production of their records, this seems like a significant limitation that would have attracted attention, particularly since the House debated at length whether the inquiry should be conducted by a congressional committee or a military tribunal. See id. at 9-10.

While it may be true that the St. Clair committee never subpoenaed “private, nonofficial documents” (a conclusion that cannot be reached with confidence given that many of the relevant records were not preserved, see id. at 17, 101), there is nothing “telling” about this fact. There is no indication that the committee lacked access to private documents it believed relevant; to the contrary, it reviewed St. Clair’s personal papers as well as information from the private contractors. See id. at 10, 95. There is simply nothing to suggest that the committee doubted its authority to subpoena private papers if necessary.

The overall effect of Justice Thomas’s approach is to narrow the scope of relevant precedent to a very small subset. In order to qualify, a precedent must involve an actual subpoena or document demand (not merely an authorization) by Congress (not by Parliament or a colonial/state legislature) for clearly private papers (not official or arguably official records) in connection with a legislative investigation (not the exercise of a judicial power such as impeachment or discipline of members). Using these restrictive criteria, Thomas contends that when in 1827 COM sought the power to subpoena documents in connection with a proposed bill to raise tariffs, its request was “unprecedented.” Dissent at 8.

Even so, Justice Thomas is wrong. About a year before the committee’s request, another House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). Moreover, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained from a number of private individuals, at least some of which was obtained by compulsory process. I Schlesinger & Bruns, Congress Investigates at 119 & 170. Thus, even by Thomas’s own standards, COM’s request was not “unprecedented.”

That being said, in my next post we will take a closer look at the 1827 debate precipitated by COM’s request for compulsory powers.