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.

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.

Will the D.C. Circuit’s “Unusual Moves” Allow it to Evade Supreme Court Review in the McGahn and Mnuchin Cases?

On Friday the D.C. Circuit, sitting en banc, held that the House Judiciary committee has standing to enforce its testimonial subpoena to former White House counsel Don McGahn. See Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). In so doing, the court rejected both the administration’s broad argument that Congress lacks Article III standing to sue anybody for anything and its narrower position that Congress lacks standing to bring an interbranch dispute to court. This is an important decision that, if it stands, will form the legal backdrop of executive-legislative disputes for years to come.

The court’s reasoning and that of the dissenters is not my focus today. (Professor Adler has a good summary of the various opinions here). Rather I want to focus on what happens next in these cases, and whether the majority has successfully insulated its decision from Supreme Court review.

The vote in McGahn was 7-2. The two dissenters were Judges Henderson and Griffith, who were the majority on the original panel to hear the McGahn case. They were also the only Republican appointees to participate in the en banc court because the two other Republicans on the court (Judges Katsas and Rao) were recused.

Although the McGahn en banc decision resolved the standing issue, it did not deal with other issues that had been raised on appeal. Instead, the full court ordered that the remaining appellate issues be “remanded to the panel to address in the first instance.” the issues remanded are (1) whether there is subject matter jurisdiction with respect to this lawsuit; (2) whether there is a cause of action for failure to comply with a congressional subpoena; and (3) assuming the Judiciary committee prevails on the first two issues, the merits of McGahn’s “absolute immunity” defense.

In addition to rejecting the majority’s standing analysis, Judge Griffith (but not Judge Henderson) protested the majority’s failure to decide all the issues in the case, noting that “the full court hurdles over Article III barriers only to decline to resolve the case.” In Griffith’s view, the court should have addressed the remaining issues and concluded, as he does, that there is no subject matter jurisdiction and no cause of action for the committee’s grievance against McGahn.

The original McGahn panel consisted of Judges Rogers, Henderson and Griffith. I assume the case will be remanded to the same panel. Judge Griffith, however, is retiring effective September 1 and therefore (I assume) will have to be replaced. Presumably this is why Griffith felt compelled/able to give his views on the issues the panel will now have to consider.

Separately, the en banc court remanded to a different panel the case of U.S. House of Representatives v. Mnuchin, No. 19-5176, in which the House is suing the Trump administration for violating the Appropriations Clause by constructing a border wall without congressional authorization. Although the en banc court initially agreed to consider the standing issue in Mnuchin (even before the original three-judge panel had ruled on it), it has now decided to send that issue back to the panel to consider the House’s standing under the principles set forth in its McGahn decision.

Judges Henderson and Griffith also dissented from the decision to remand Mnuchin, arguing that it makes no sense to have sua sponte agreed to hear the Mnuchin case en banc, requested and received supplemental briefing and argument, and then simply punted the issue back to the three-judge panel.  As Judge Henderson puts it, “[t]he majority points to no case– nor am I aware of any– in which we sua sponte consolidated two appeals for en banc rehearing and then addressed only one of them in the resulting opinion.” Mnuchin, slip op. at 2 (Henderson, J., dissenting).

Judge Griffith had some even more pointed remarks for his soon to be former colleagues. He accuses the full court of repeatedly departing from regular order by first determining that the standing question in Mnuchin was not only of such “exceptional importance” to justify rehearing en banc, but making this determination sua sponte before the three-judge panel had even issued an opinion, and then “sending the case back to the panel without answering the ‘question of exceptional importance’ that triggered rehearing in the first place.” Mnuchin, slip op. at 3 (Griffith, J., dissenting). He then asks: “What accounts for this extraordinary departure? The court offers no explanation for this unusual move, and I can think of none.” Id.

Well, I can think of an explanation (and I suspect Griffith can too). By failing to issue a final decision in either McGahn or Mnuchin, the D.C. Circuit has made it much less likely that the Supreme Court will have an opportunity to grant certiorari prior to the election. And if these cases drag on past the election, there is a good chance the Court will never hear them at all.

Let’s begin with McGahn. As everyone concedes, it is highly unlikely now that McGahn will be testifying in this congress (and certainly not before the election). Thus, there will be little urgency for the reconstituted panel to issue a final decision (and consider how slowly things moved when there was urgency). Possibly a final decision might issue before the election, but the longer it takes, the less reason the Supreme Court will have to grant review. In the first place, the expiration of the congress terminates the subpoena and therefore arguably moots the case. Furthermore, if the election changes the occupant of the White House, it is entirely possible the incoming Justice Department will not be interested in pursuing Supreme Court review.

Now consider Mnuchin. As in the case of McGahn, if the full D.C. Circuit had found in favor of the House now, the Justice Department would have undoubtedly sought Supreme Court review on an expedited basis. Even if the court found against the House (which frankly I think is more likely), the House might have felt politically that it needed to seek further review. However, if the Democrats win the White House, the House will probably lose interest in the case regardless of which way the panel decision goes, and the case will go away without Supreme Court review. Only if the House wins the panel decision and Trump retains the White House does it seem likely that the parties would pursue further review.

Note, however, that if there is a new administration, its interests will not necessarily align with those of the House. While it may not wish to take a case on congressional standing to the Supreme Court, it probably would prefer not to have the D.C. Circuit’s standing decision in McGahn as the controlling law either. Just as the Obama administration reportedly tried (unsuccessfully) to get the House to agree to dismissal of the Miers case on grounds of mootness, the issue in an incoming Biden administration may not be Supreme Court review, but whether the D.C. Circuit’s en banc decision in McGahn is rendered moot by the expiration of the congress or otherwise.

In short, the big issue in McGahn and Mnuchin is no longer whether the House will get the relief it initially sought, but whether the D. C. Circuit’s standing decision will be preserved as the law of the circuit. Interested parties should plan accordingly.

 

 

Justice Thomas and Judge Rao: A Tale of Two Mazars Dissents

Justice Thomas’s dissent in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), has been compared to Judge Rao’s dissent in the D.C. Circuit below, with the implication that this somewhat vindicates Rao’s widely panned opinion. However, the two dissents are in fact quite different, and it seems pretty clear that Justice Thomas was not persuaded by his former clerk’s opinion.

To be sure, there are similarities between the two dissents. Both ignore the presidency-centered arguments offered by President Trump’s personal legal team and the Department of Justice in favor of broader theories not raised by any party or amicus. Both evince skepticism if not outright hostility toward legislative investigations generally and clearly prefer the stance taken by the Court in Kilbourn v. Thompson, 103 U.S. 168 (1881) to that of McGrain v. Daugherty, 273 U.S. 135 (1927). Both indicate that these congressional subpoenas seeking the president’s personal financial information would be valid, if at all, only through the exercise of the impeachment power. Both rely to a great extent on historical practice, particularly a kind of negative historical practice (i.e., drawing conclusions from things that allegedly did not happen).

Despite these similarities, the two dissents employ different reasoning, rely on different “precedents,” and reach very different conclusions. The textual and structural lynchpin of Judge Rao’s analysis is the impeachment power, which she claims “provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.” Trump v. Mazars USA, LLP, 940 F.3d 710, 751 (D.C. Cir. 2019) (Rao, J., dissenting). While Rao acknowledges Congress’s general legislative power to conduct investigations, this power in her view does not extend to matters within the “impeachment zone” (my term, not hers). How one determines what falls within the impeachment zone is somewhat unclear, but Rao finds that the subpoenas for Trump’s financial information are ones that can only be pursued through the impeachment power.

Much of Rao’s opinion is devoted to her contention that “consistent historical practice” supports her conclusion. Id. at 753. To wit, she endeavors to show that Congress has never investigated matters within the impeachment zone except through the use of the impeachment power. Id. at 758-67.

Thomas takes a different approach. Although he agrees with Rao that the personal financial records at issue may be obtained by Congress, if at all, only through the exercise of the impeachment power, he reaches this result because he believes Congress lacks the power to subpoena private, nonofficial documents in any legislative investigation. Unlike Rao, he does not claim that the impeachment power somehow displaces otherwise available legislative power to investigate.

A simple illustration of the difference between the two dissents is to imagine Donald Trump had never been elected president. (It’s easy if you try). Under Rao’s theory, Congress would be able to subpoena his financial records for legislative purposes, such as to investigate the operation of money-laundering laws (which was the asserted purpose of the subpoena issued by the Committee on Financial Services). Under Thomas’s theory, on the other hand, these records could never be subpoenaed for a legislative purpose.

Put another way, Thomas would proscribe a particular legislative tool (subpoenas for private documents) for all legislative investigations, while Rao would proscribe the use of any compulsory process for certain investigative subjects (legislative investigations of matters falling within the impeachment zone). Thus, Rao would allow subpoenas for private documents in legislative investigations outside the impeachment zone; Thomas would not. Thomas would allow subpoenas for testimony or official documents in legislative investigations within the impeachment zone; Rao would not. Though they produce the same result in this particular case, the two theories are entirely different.

Furthermore, Thomas evidently rejects Rao’s interpretation of historical practice. While Rao claims that investigations of wrongdoing by impeachable officials have occurred exclusively through the exercise of the impeachment power, Thomas makes this observation:

     For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. But it never issued a subpoena for private, nonofficial documents as part of those non-impeachment inquiries.

Trump v. Mazars USA, LLP, 591 U.S. __, slip op. at 20-21 (2020) (Thomas, J., dissenting) (citation omitted) (emphasis added).

As Thomas acknowledges, Congress has investigated wrongdoing by presidents (not to mention other impeachable officials) in “non-impeachment inquiries” both before and after the 1970s. Whatever the factual accuracy or legal significance of the claim that these non-impeachment inquiries did not subpoena private, nonofficial documents “until the 1970s,” Thomas clearly does not see the historical pattern asserted by Rao as the key to her dissent.

None of this is to say that Justice Thomas’s dissent is correct (it is not) or even more plausible than Judge Rao’s (we will leave that to another day). It is fair to say, though, that Thomas was unpersuaded by Rao’s analysis and finds his own to be more plausible.

Will the Mazars Court Overrule McGrain? (Part Two)

As suggested in my last post, the May 12, 2020 oral argument in Trump v. Mazars USA, LLP did not go well for the House, to put it mildly. Most of the tough questions for the House Counsel clustered around a single idea: what is the limiting principle that prevents Congress from prying into whatever it wants, whenever it wants? Before getting to that, however, let’s consider an even more fundamental issue raised by Justice Thomas.

Justice Thomas began his questioning of House Counsel Doug Letter by essentially asking what the constitutional basis is for recognizing the power to issue legislative subpoenas at all. Tr. 54-55. Letter responded by pointing to the long line of Supreme Court cases (which began with McGrain) holding that the power to conduct investigations and issue compulsory process is an inherent and integral part of the legislative power conferred by the Constitution.

Justice Thomas did not appear entirely satisfied with this answer, and he followed up by asking “can you give me the earliest example you have of Congress issuing a legislative subpoena?” Tr. 56. Letter pointed to the House’s 1792 investigation of General St. Clair’s failed expedition. This investigation was viewed by the McGrain Court as significant historical evidence of the existence of a constitutional power to issue legislative subpoenas. As the Court explained:

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.

*           *          *

We are of opinion that the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history– the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action– and both houses have employed the power accordingly up to the present time.

McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).

Still not satisfied, Thomas pressed further: “What’s the first example of Congress issuing a legislative subpoena to a private party for documents?” Tr. 56. Letter could not answer him directly, but referred him to the discussion of congressional investigatory history in Watkins v. United States, 354 U.S. 178 (1957).

The referenced passage in Watkins, I think, is the following:

Most of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials. [Note: here the Court cites to Landis’s article]. Unlike the English practice, from the very outset, the use of contempt power by the legislature was deemed subject to judicial review.

     There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws. The first occasion for such an investigation arose in 1827, when the House of Representatives was considering a revision of the tariff laws. In the Senate, there was no use of a factfinding investigation in aid of legislation until 1859.

Watkins, 354 U.S. at 192-93.

This passage does not specifically answer Justice Thomas’s question, but it suggests why it may not have been exactly the right question. While courts pass on the validity of specific subpoenas, the scope of Congress’s investigatory authority is determined by reference to the investigation that is being conducted, not by the nature of an individual subpoena (e.g., whether it is directed to a private party or seeks documents).

Thus, for example, the investigation of the St. Clair expedition would be one of the inquiries involving “suspected corruption or mismanagement of government officials” referred to in Watkins, but that does not  mean the investigation lacked the power to compel the production of documents or other information from private parties. Indeed, one of the issues in the St. Clair investigation was the quality of military supplies provided by private contractors, and the committee received affidavits and other evidence from these contractors. See I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History: 1792-1974 95 (1983). Whether or not the committee actually issued compulsory process to a private party, there seems little doubt it had the authority to do so.

When was the first occasion on which a congressional committee actually issued a legislative subpoena to a private party for documents? The earliest I can verify is that in 1827 a 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). However, 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 by compulsory process. I Congress Investigates at 119 & 170.

The passage quoted from Watkins does not distinguish between subpoenas directed to private parties and government officials, but it does suggest a distinction between (1) investigations of suspected government corruption or mismanagement (what would often be referred to as congressional oversight) and (2) inquiries to obtain facts relevant to enacting or amending legislation. Although both are “legislative” in nature, the Court implies that the latter requires more vigorous scrutiny to ensure that the information sought is pertinent to the investigation, particularly when the information sought would implicate the constitutional rights of private citizens.

This interpretation is consistent with the holding of Watkins, where a labor organizer summoned to testify before the House Un-American Activities Committee testified freely about his own activities and associations, but refused to answer questions about individuals whom he believed may have once been but no longer were members of the Communist Party. The Court reversed his conviction for contempt of Congress, holding that the committee violated his rights under the contempt statute and the due process clause by failing to clearly explain to him the pertinency of the questions to its investigation. It did not dispute that political opinions and associations protected by the Bill of Rights could nonetheless be a proper subject of congressional investigation, but “[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.” Watkins, 354 U.S. at 198, 205.

The Court emphasized that it was not dealing with congressional oversight, noting that “[t]he public is, of course, entitled to be informed concerning the workings of its government.” Id. at 198. It explained:

     We are not concerned with the power of Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: “The informing function of Congress should be preferred even to its legislative function.” From the earliest times in its history, Congress has assiduously performed an “informing function” of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-194.

Watkins, 354 U.S. at 200 n.33 (citation omitted). The Court thus distinguishes the inquiry in Watkins from the type of congressional oversight involved in McGrain.

This distinction may help point the way to an answer to the question asked by many of the justices at the May 12 argument in Mazars, i.e., what stops Congress from investigating virtually anything on the basis that it has some connection to a subject on which legislation could potentially be had. See, e.g., Tr. 52-54 (Chief Justice Roberts); 57 (Justice Ginsburg); 64 (Justice Alito); 74 (Justice Kavanaugh). Letter had some difficulty answering this question, perhaps because judicial doctrine since McGrain has in fact been extremely deferential to Congress on this score. As the district judge in Mazars pointed out, the governing legal standards are so deferential that they “do not substantially constrain Congress.”

However, the real constraint on Congress is that enforcing a subpoena is extremely cumbersome and therefore legal sanctions for contempt are virtually never imposed. This is in part because the Court in cases like Watkins has imposed technical and procedural requirements for criminal contempt to address the very issue raised in the Mazars argument. See Watkins,  354 U.S. at 204 (expressing concern that the committee “can radiate outward infinitely to any topic thought to be related in some way” to its mandate, that “[r]emoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action,” and further that “investigators [can] turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present”).

As a consequence, any witness who wishes to contest a congressional subpoena has far more leverage than the formal legal standards would imply. In addition, witnesses have the right to assert privileges, including the privilege against self-incrimination. Congress also has political incentives which further constrain its exercise of the subpoena power. Thus, the hypotheticals advanced by the justices are, for the most part, very unlikely to occur. See, e.g., Tr. 85-86 (Justice Alito) (suggesting the possibility that one house of Congress might subpoena personal records relating to a member of the other house).

Of course, some of these safeguards are inoperative in the Mazars case because it presents the fairly rare scenario of Congress seeking non-privileged records from third parties with no interest in contesting the subpoenas. Whether this  creates a significant potential of congressional abuse is debatable. After all, if Congress were to attempt to exercise this authority in an excessive or abusive manner, banks and other third party record keepers would have an incentive to contest subpoenas to protect the interests of their clients. (This is why the Court would have been wise to consider this blog’s suggestion that only the third parties themselves should have standing to contest the validity of the subpoenas).

Nonetheless, there are undoubtedly instances where Congress investigates particular factual questions which seem tenuously related to a legislative need. It is difficult to see, for example, why Congress would need to know whether a particular baseball player used steroids in order to legislate on the general subject. One could reasonably argue that if Congress is merely seeking information as a case study of a particular social, economic or national security problem, it ought to explain not only how the information is pertinent to potential legislation but why there is a legislative need to explore one specific example out of many. This should be more than adequate to protect against some of the other hypotheticals raised in the May 12 argument, such as the idea that Congress could subpoena an individual’s medical records on the ground it was considering healthcare legislation. See Tr. 65 (Justice Sotomayor).

On the other hand, there is no need for Congress to provide any additional justification for conducting oversight of government agencies and officials. As explained in McGrain and Watkins (and detailed in Professor Landis’s article, among other places), Congress has conducted searching probes into the conduct of government officials and operations since its earliest days. Such investigations are inherently justified by the need to inform itself and the public as to the working of the federal government and to uncover corruption, maladministration and inefficiency of every kind.

This distinction is reflected in Justice Kagan’s suggestion that there may be reasons for treating differently the three congressional subpoenas involved in the consolidated Mazars and Deustche Bank cases. See Tr. 88. Although all three seek similar types of information (financial records relating to President Trump’s private business interests), there are significant differences in the nature of the investigation to which each subpoena relates. The investigation by the Financial Services committee seeks the information simply to use it as a case study of a much more general problem (money laundering) in the financial sector. By contrast, the subpoena from the Intelligence committee is for the purpose of determining whether the president has financial ties to Russia or other foreign actors that might create a conflict of interest or give such actors leverage over his official decision making. The latter falls squarely within the province of congressional oversight while the former constitutes a pure case study investigation that may require additional justification.

The subpoena from the House Oversight committee falls somewhere in the middle. It is defended in part on the ground that it will assist the committee in determining whether to recommend changes to disclosure laws applying to federal officials generally. This is arguably closer to a case study approach, although it seems self-evident why the committee would focus on the highest-ranking federal official, particularly when it has gathered substantial evidence that he has been less than truthful in his private financial disclosures. In addition, the subpoena can be justified on the pure oversight grounds of determining whether the president has financial conflicts of interest or is in violation of the Foreign Emoluments Clause.

The line suggested by Justice Kagan would allow the Court to uphold at least one and likely two of the congressional subpoenas, while sending the other(s) back for further proceedings. It seems to me this would be a reasonable compromise that would satisfy the concerns expressed by the justices (with the possible exception of Justice Thomas) without fundamentally disturbing the legal standards established by McGrain and applied in subsequent cases.

Unlike Kagan (and several of her colleagues), however, I would be loathe to establish a special protection applicable only to the president. Historically the Court’s concerns about over broad congressional investigations focus on protecting the affairs of private citizens from arbitrary scrutiny. Even Judge Cochran, who would have applied these principles to an inquiry into the conduct of (then former) Attorney General Daugherty, claimed only that these principles applied as much to federal officials as to private citizens, not that the former were entitled to additional protection. (To date only Judge Rao, in her Mazars dissent in the D.C. Circuit, has advanced the remarkable proposition that impeachable officials enjoy an immunity from legislative investigation that is unavailable to private citizens). If the Court believes that changes are needed to the doctrine governing congressional case study investigations to avoid arbitrary intrusions into private affairs, such should apply to all citizens, not just the one who happens to sit in the Oval Office.

Whatever the Court ends up deciding in Mazars, let us hope they emulate the McGrain Court in one way but not another: the first by achieving unanimity or something close to it; and the second by not taking more than two years to issue a decision.

Will the Mazars Court Overrule McGrain? (Part One)

Nearly a century ago the Supreme Court decided the landmark case of McGrain v. Daugherty, 273 U.S. 135, 174 (1927), in which the Court declared that “the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function.” In so holding, the Court dispelled doubts raised by Kilbourn v. Thompson, 103 U.S. 168 (1880), where, as we discussed here, the Court had expressed skepticism whether Congress could issue compulsory process outside the context of its judicial functions (such as impeachment and disciplining its members). McGrain settled this issue in Congress’s favor and, along with subsequent cases, established such a deferential judicial stance toward the validity of congressional investigations  that no congressional investigation since has been held to exceed Congress’s legislative powers. After listening to the oral argument in Trump v. Mazars USA, LLP, however, one has to wonder whether this will soon change.

The McGrain case arose from a Senate resolution calling for a broad investigation into the activities of Attorney General Harry Daugherty (our old friend) and his associates at the Department of Justice, including, but by no means limited to, Daugherty’s failure to pursue legal actions against individuals linked to the Teapot Dome scandal. Suspicions regarding Daugherty’s negligence or favoritism with regard to Teapot Dome, however, were the least of the attorney general’s troubles. Senate hearings in March 1924 featured blockbuster testimony from witnesses who claimed Daugherty and his associates had received large amounts of illicit cash which were deposited in a small Ohio bank run by Daugherty’s brother, Mally (“Mal”) Daugherty. The hearings led to Attorney General Daugherty’s forced resignation on March 28, 1924 and to a subsequent testimonial subpoena requiring Mal to appear before the Senate committee investigating his brother. When Mal refused to appear, the Senate ordered him taken into custody, and he immediately petitioned for a writ of habeas corpus in the federal district court for the Southern District of Ohio. (Fun fact: the judge who initially received the habeas petition was Smith Hickenlooper grandfather of the former Colorado governor and presidential candidate).

At this point matters stood at something of a crossroads. With Daugherty’s resignation, the major figures in the scandals of the Harding administration were out of office, and the new Coolidge administration (President Harding having passed away in 1923) was eager to disassociate itself from them. On the other hand, many Republicans argued that the congressional investigations into these scandals were political and excessive, and members of the bar warned that such investigations threatened civil liberties. Chief Justice Taft and Senator George Pepper, a well regarded Republican lawyer, were among the luminaries expressing skepticism about the investigations. See J. Leonard Bates, The Teapot Dome Scandal and the Election of 1924, 60 Am. Hist. Rev. 303, 317 (Jan. 1955).

While Mal Daugherty’s case was pending in the district court, a Harvard law professor named Felix Frankfurter wrote an article in the New Republic entitled “Hands off the Investigations,” which was reprinted in the Congressional Record on the day it was published. See 65 Cong. Rec. 9080-82 (May 21, 1924) (introduced by Senator Ashurst). Professor Frankfurter “came out squarely for the unlimited power of congressional investigations.” Louis B. Boudin, Congressional and Agency Investigations: Their Uses and Abuses, 35 Va. L. Rev. 143, 146 (Feb. 1949).

Frankfurter proclaimed “[i]t is safe to say that never in the history of this country have congressional investigations had to contend with such powerful odds, never have they so quickly revealed wrongdoing, incompetence, and low public standards on such a wide scale, and never have such investigations resulted so effectively in compelling correction through the dismissal of derelict officials.” 65 Cong. Rec. 9081. He sniggered at the suggestion that the Daugherty hearings were unfair because the witnesses who  testified were disreputable (sound familiar?), noting “[i]t is the essence of the whole Daugherty affair that the Attorney General of the United States was involved in questionable association with disreputable characters.” He also rejected the notion that congressional investigations should be subject to rules of evidence or other technical limitations applicable in court, asserting that “[t]he procedure of congressional investigation should remain as it is.” 65 Cong. Rec. 9082.

Just ten days later (May 31, 1924), Mal Daugherty’s habeas petition was granted by US District Judge Cochran (to whom the case for some reason had been reassigned). The court found that the Senate investigation of the (now former) attorney general was beyond the Senate’s constitutional power. See Ex Parte Daugherty, 299 Fed. 620 (S.D. Ohio 1924). Following the reasoning of Kilbourn, Judge Cochran expressed “very serious doubt” whether the Senate had the power to issue compulsory process in any legislative investigation, but he found it unnecessary to rest his decision on that ground. Instead, he reasoned that the Senate was not conducting a proper legislative investigation, but rather it was making an improper attempt to put Harry Daugherty on trial. See id. at __ (“What the Senate is engaged in is not investigating the Attorney General’s office; it is investigating the former Attorney General.”). This was a judicial function that could only be performed by a court or by the House of Representatives pursuant to its impeachment power. The court explained:

[T]he Senate has no power to impeach any Federal officer at the bar of public opinion, no matter what possible good may come of it. It is not within its province to harass, annoy, put in fear, render unfit, or possibly drive from office any such officer, high or low, by instituting such impeachment proceedings against him. The power to impeach under the Federal Constitution resides solely in the House of Representatives, and it has power to impeach solely at the bar of the Senate.

Id. at __.

Judge Cochran’s analysis in many respects mirrors that of Judge Rao in her Mazars dissent in the D.C. Circuit. Indeed, Judge Rao makes a point of identifying her position with that of Judge Cochran. See Trump v. Mazars USA LLP, No. 19-5142, slip op. at 49-50 n. 16 (D.C. Cir. Oct. 11, 2019). She claims that the Supreme Court did not disagree with the district judge on legal principle, but “simply disagreed with the district court’s characterization of the proceedings, which were not about the wrongdoing of the Attorney General but the administration of the Department of Justice as a whole.” Id. This betrays a lack of familiarity with the McGrain case since Mal Daugherty had no connection to the Department of Justice other than his knowledge of his brother’s wrongdoing.

In any event, Judge Cochran’s decision was music to the ears of Harry Daugherty’s defenders and critics of the congressional investigations. One can easily imagine that the Coolidge administration was tempted to endorse the decision (which would have undermined future congressional oversight) or at least to decline to get involved on the Senate’s side. Instead, however, Harlan F. Stone, Daugherty’s successor as attorney general, undertook to represent the Senate on appeal to the Supreme Court, thereby putting both political branches squarely on the side of congressional investigatory authority. Conveniently, though, briefing and oral argument did not take place until after the presidential election of 1924. (Stone’s opening brief was filed six days after the election).

Meanwhile, Frankfurter’s camp was preparing legal scholarship to support the Senate. In December 1924, as the McGrain case was being argued, the Harvard Law Review published a student note critical of Judge Cochran’s decision. See Note, The Power of Congress to Subpoena Witnesses for Non-Judicial Investigations, 38 Harv. L. Rev. 234 (Dec. 1924). Among other things, the note took issue with Cochran’s conclusion that the impeachment power implicitly limited the Senate’s power to conduct legislative investigations of executive wrongdoing. See id. at 238 (“Impeachment is a ponderous method of rectifying gross misconduct and consequently has been seldom employed.  By limiting the exercise of this extraordinary remedy, the Constitution could not have intended to restrict more common powers of investigation shown by experience to be necessary to the practical exercise of a federal power.”).

Although the note is unsigned, there is little doubt it reflects Frankfurter’s influence. The articles editor was Thomas G. Corcoran, a Frankfurter protege who would go on to clerk for Justice Oliver Wendell Holmes at Frankfurter’s recommendation during the 1926-27 term. (Another fun fact: Corcoran in later life became a lobbyist who notoriously once “lobbied” the Supreme Court on behalf of a client. See Bob Woodward & Scott Armstrong, The Brethren 79-86 (1979)).

A more significant piece of scholarship came from Professor Landis, Frankfurter’s Harvard colleague and frequent co-author. See James M. Landis, Constitutional Limitations on the Congressional Power of Investigations, 40 Harv. L. Rev. 153 (Dec. 1926). Landis argued that the meaning of the legislative power conveyed by the Constitution could only be understood in light of historical experience; he then marshaled British and colonial history to demonstrate that “[a] legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin.” Id. at 159. When combined with the unbroken practice of legislative investigations since the adoption of the Constitution, he concluded that “[t]he Daugherty inquiry of 1924 is thus a direct descendant of a more ancient lineage, ancient enough, when constitutional history begins for the United States in 1789, to demand recognition as a convention entitled to constitutional standing.” Id. at 193-94.

Many years later, during the conference in Watkins v. United States, 354 U.S. 178 (1957), then Justice Frankfurter remarked that “Landis’s article on investigations turned the trick in the Daugherty case in this Court and led it to uphold the powers of Congress.” The Supreme Court in Conference (1940-1985) 299 (Del Dickinson, ed. 2001). Whether this is exactly true or not (see below), Landis’s article seems to have had a powerful effect on legal thinking about the subject of congressional investigations by “completely demolish[ing]” the historical and logical foundations of Kilbourn‘s cramped reading of the legislative power of inquiry. Boudin, 35 Va. L. Rev. at 147; see also id. at 165-66.

Several factors thus converged to support the Senate’s position before the Supreme Court in McGrain. Politically, there was little motivation for anyone to defend the conduct of the Harding administration, particularly after President Coolidge won reelection in 1924. The fact that both the executive and legislative branches agreed on a common legal position likely weighed heavily in the Senate’s favor. The intellectual firepower of Harvard law school surely did not hurt either.

Nonetheless, it appears that the outcome in McGrain was, like Waterloo, a damn close run thing. Although it was argued in December 1924, it was not decided until January 1927. (Another strike against Professor Jonathan Turley’s theory that the courts will resolve such issues quickly). This in itself suggests more internal dissension than betrayed by the ultimate unanimous decision (Harlan Stone, who was appointed to the Court during the intervening period, did not for obvious reasons participate). Cf. McGrain, 273 U.S. at 154 (“We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy.”).

According to this March 1927 letter to Frankfurter from John Gorham Palfrey, a longtime aide to Justice Holmes, in an earlier vote on the case Justices Holmes and Brandeis were “standing out against the whole bunch,” apparently meaning that the other justices would have affirmed the district court. Although Palfrey indicated that Holmes had read “Jim’s article” and that Brandeis had distributed it to other justices including Justice Van Devanter, who was assigned the opinion, he did not believe that was the real reason for the majority switch. Instead, “Van Devanter, who has been away behind on his opinions, go around to writing the opinion for the majority a couple months ago– and found he couldn’t do it to reach the majority result.”

Whatever the true reason, Van Devanter ultimately produced a strong and unanimous opinion in support of a broad congressional investigatory authority, one that has driven a largely deferential judicial attitude toward congressional investigations ever since.

Until now. We will turn to that in our next post.

Subpoenas, Recalcitrant Witnesses, and the Senate Impeachment Trial

Law Twitter is abuzz (I guess this is a mixed metaphor) about this TPM post by Josh Marshall, who makes the following points regarding an impeachment trial in the Senate: (1) the House will have the opportunity to request subpoenas for any witnesses it wishes, including those who refused to appear during the House proceedings (e.g., Giuliani, Mulvaney, Bolton); (2) the chief justice will likely make a ruling on these requests in the first instance (the Senate could  overrule him, but probably would not); and (3) the courts will not interfere with these subpoenas because the trial of impeachment is solely a matter for the Senate. See Nixon v. United States, 506 U.S. 224 (1993). He therefore posits that the House will have a much better chance of forcing reluctant witnesses to testify in the trial than it has had in the course of its own impeachment inquiry.

I will assume that points 1 and 2 are correct, though it remains to be seen whether the Senate will restrict witnesses up front and whether the chief justice will choose to rule on motions in the first instance or simply refer them to the Senate. But what happens if the House requests that certain witnesses be subpoenaed and these requests are granted by the chief justice and/or the Senate?

As a practical matter, there will be tremendous pressure on the witnesses to comply. It is one thing to defy the authority of the House with the backing of executive branch lawyers who maintain, however implausibly, that the impeachment inquiry is illegitimate and unconstitutional.  It is quite another to defy a subpoena signed by the chief justice of the United States pursuant to the Senate’s unquestionable constitutional authority to conduct an impeachment trial of the president. It will be particularly difficult for a private citizen like Giuliani, who does not even have the veneer of “absolute immunity” or some other constitutionally based privilege, to justify a refusal to appear. But even a witness who asserts such a privilege would have to consider carefully the possibility of future prosecution for contempt of Congress or other potential consequences (Mulvaney, Bolton and Giuliani are all lawyers, for example, who could be subject to professional discipline).

If, however, a witness chooses to defy the subpoena, matters get more complicated. The fact that the Senate has exclusive jurisdiction over the conduct of an impeachment trial does not, in itself, answer the question of how to force a recalcitrant witness to obey its commands.

Here it is important to distinguish between two distinct powers that the Senate could exercise. The most frequently discussed is the contempt power, which we have been reviewing at some length. But the Senate also has the power to issue a warrant of attachment, which directs the Sergeant at Arms to arrest an individual and bring him before the bar of the Senate to be interrogated. See Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-20 (1929) (holding that the Senate could use an arrest warrant to bring before it a witness in an elections case); McGrain v. Daugherty, 273 U.S. 135, 158 (1927) (approving the same procedure in a legislative oversight investigation). The arrest warrant serves as an alternative for witnesses who cannot be relied upon to comply with a subpoena.

If the Senate is willing to employ such process, it seems to me extremely likely that it will be effective. I do not expect that the witnesses in question would  attempt to flee or physically resist the Sergeant at Arms. I certainly would not expect the executive branch to offer physical protection against execution of a warrant signed by the chief justice. Of course, if I am wrong about this, we would be in a true constitutional crisis.

More plausibly, the witnesses could attempt to challenge their arrest through a habeas proceeding. For example, Mulvaney, Bolton or other current or former senior White House advisors could argue that they are absolutely immune from congressional process, even in the context of an impeachment proceeding. I believe that this argument would have a near zero chance of success. In addition to the infirmities of the absolute immunity position which we have previously discussed, the Senate would have a strong argument that the courts lack jurisdiction even to consider the merits of the issue given its exclusive authority over impeachment. And leaving all that aside, it is difficult to imagine a federal district judge interfering with an arrest warrant signed by the chief justice.

The arrest warrant, however, only ensures that the witness’s physical appearance before the Senate. It does not address what happens if the witness still refuses to answer questions or produce documents. In that case, the Senate would have to employ the contempt power in order to force the witness to comply. This would impose substantially greater costs on the Senate. For one thing, it would have to interrupt the impeachment trial to conduct a collateral proceeding in which the witness would be asked to show cause why he should not be held in contempt. For another, if the witness is adjudged guilty of contempt, the Sergeant at Arms would have to keep him in custody until he agrees to testify (or the impeachment trial concludes). There would also be a greater risk of judicial interference if a witness is held for a substantial period of time.

In all likelihood, though, it will not be necessary for the Senate to take things that far. If the Senate subpoenas witnesses requested by the House and indicates that it is serious about enforcement (whether by way of criminal referral or otherwise), I expect those witnesses to appear and answer questions (though there may be some assertions of executive privilege).