Wednesday, June 03, 2020

When does the House of Representatives Have Standing to Sue?: What to Expect from the D.C. Circuit En Banc Argument in McGahn and Mnuchin

Marty Lederman

A few weeks ago, the U.S. Court of Appeals for the D.C. Circuit sat en banc to hear argument in a pair of cases concerning when the House (or one of its committees) has Article III standing to seek relief in federal court.  The three-hour telephonic argument can be heard here.  The argument covered two very different cases. 

In the first case, House Committee on the Judiciary v. McGahn, No. 19-5331, the House Judiciary Committee has sued Don McGahn to require him to comply with a subpoena to testify concerning his involvement in the events described in Volume II of the Mueller Report (see especially pages 31-90).  McGahn has refused to appear at all, based upon the view of the Office of Legal Counsel that close presidential advisors have absolute “testimonial immunity” from congressional process, even after they’ve left the government.

The second case, House v. Mnuchin, No. 19-5176, is very different.  There, the House has sued several officials to enjoin them from expending funds to build the Trump “border wall,” arguing that because Congress has only appropriated a small amount of money to build the wall, the officers have violated the Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, by spending more than that modest amount.  The officers don’t assert any constitutional authority to spend unappropriated funds; they argue instead that various federal statutes, especially Section 8005 of the 2019 DOD Appropriations Act, authorize the transfer of appropriations for purposes of the wall-building.  The House counters that they’re misreading those statutes and that therefore there aren’t any appropriated funds for major parts of the project.

In both cases, the Executive branch is arguing that the House (or its Committee) lacks Article III standing to sue.  In this post I offer a few thoughts on the two cases, with an emphasis on how the court is likely to decide them and on what the narrowest ruling in each case might be—a question the judges repeatedly asked at oral argument. 

With all the usual caveats about the dangers of extrapolating from oral arguments, I think it’s likely that the court will overwhelmingly find (as it should) that the House Judiciary Committee has standing to sue McGahn to enforce its subpoena for him to testify, but that the judges may be much more skeptical of the House’s standing to enjoin expenditure of funds for building the wall in the Mnuchin case, as they should be.  At the end of the post I’ll also comment on a couple of other important aspects of the McGahn case, namely, (i) that even if the House has standing to sue, it’s still far from certain whether McGahn will ever provide significant testimony to the Judiciary Committee; and (ii) that the panel opinion itself demonstrates that DOJ’s substantive argument—that close presidential aides have absolute “testimonial immunity” from congressional process even after they’ve left the governmentis indefensible, and that DOJ should therefore abandon that view.

The Mnuchin Appropriations Clause Case

Let’s start with the case in which the judges at oral argument expressed far more skepticism of the House’s standing to sue.  As noted above, the basic dispute in Mnuchin centers on a pure question of statutory interpretation:  Do particular federal statutes, especially Section 8005 of the 2019 DOD Appropriations Act, authorize the transfer of appropriations for purposes of the wall-building?  The Executive branch says they do; the House says they don’t.  (For what it's worth, I think the House has the better of the argument on the reading of the statutes--but that question isn't before the en banc court.)

The parties don’t disagree that if the suit were styled simply as an effort to compel the defendant officials to comply with the law—an argument that the Executive is acting ultra vires—the House wouldn’t have standing.  To be sure, all United States persons, including citizens and taxpayers, have an interest in ensuring that the Executive complies with the law, and acts only when authorized to do so.  The Supreme Court has held, however, that such an interest is “not only widely shared, but is also of an abstract and indefinite nature,” and thus lacks the “concrete specificity” necessary to establish Article III standing.  FEC v. Akins (1998).  According to the Court's modern standing doctrine, “[a] litigant ‘raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”  Hollingsworth v. Perry (2013) (quoting Lujan v. Defenders of Wildlife (1992)).

Like members of the public, members of Congress, too, have a “public interest in proper administration of the laws,” Lujan, but that interest isn’t any different from the “generalized interest of all citizens in constitutional governance”--an interest that’s insufficient to support Article III standing when the Executive is alleged to have acted unlawfully, or ultra vires.  Congress and its members don’t suffer a distinct and concrete harm just because Congress enacted the statute in question.

That much is common ground between the parties in Mnuchin.  The House, however, insists that this case is different, and that it has Article III standing, because the alleged ultra vires action here is an expenditure of unappropriated funds and that therefore the Executive has not only acted without statutory authorization but also, in so doing, has violated the Appropriations Clause, which provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”—and that the House as a whole has standing to sue Executive officials to prevent them from violating the Appropriations Clause.

Is that right?  Does the fact that this particular sort of statutory violation would also result in an Appropriations Clause violation confer standing on the House that it otherwise wouldn’t have? 

Back in 2016, I filed a brief in a different D.C. Circuit case, on behalf of Professors Walter Dellinger, Bill Eskridge and David Strauss, arguing that the House lacks standing to sue on such an Appropriations Clause claim.  (The dispute in that 2016 case became moot before the court issued any opinion.)  In the current Mnuchin case, the House has filed the best defense I’ve yet seen in support of special “Appropriation Clause” standing.  The arguments in those two briefs speak for themselves and I won’t belabor them here:  Readers can decide for themselves what they think.

In this post I’ll only stress one aspect of the case that might point to a relatively narrow ground of decision.  At oral argument, several of the judges asked about various scenarios in which a President might assert a power to act “unilaterally” but where the Constitution arguably requires congressional (i.e., statutory) authorization, such as starting a war, imposing a tax, regulating private parties, or borrowing funds.  The judges pressed House Counsel Doug Letter on whether the House would have standing to sue the President in such cases.  As the Supreme Court noted in Raines v. Byrd (1997), there’d “be nothing irrational about a system” that allowed either or both political branches to invoke the judiciary to settle such interbranch constitutional disputes; indeed, “some European constitutional courts operate under one or another variant of such a regime.”  Nor has the Supreme Court yet definitively resolved whether Congress as a whole might have standing to sue in one or more of these settings.  As we explained at pages 16-22 of our 2016 brief, however, such interbranch litigation “is obviously not the regime that has obtained under our Constitution to date,” Raines, which might make the Supreme Court very wary of recognizing Congress’s standing in such cases.  Moreover, as our brief emphasized, whatever the eventual Article III answer might be in the context of hypothetical cases where the entire Congress sues to resolve such a constitutional dispute between the political branches, historical practice surely points strongly against the notion that Article III permits a such a suit where only a single House of Congress has sued.

If a majority of the court of appeals is inclined to deny the House’s standing in the Mnuchin case, however, it doesn’t need to reach the difficult and important question of whether there’d be standing in such a case—for Congress as a whole or for either the House or the Senate—where the President claims a constitutional power to go it alone, without statutory authorization.  This case, like the one we briefed in 2016, doesn’t involve such a constitutional stand-off:  The Trump Administration is not asserting any constitutional authority to expend unappropriated funds, and therefore the political branches are not at odds here about their respective constitutional powers.  No one disputes that Article I, Section 9 would bar the Secretaries from “draw[ing]” funds from the Treasury if the Executive’s statutory interpretation turns out to be mistaken.  Thus if a court were to reach the merits of the case, it wouldn’t have to address any constitutional question—it would, instead, merely have to resolve the dispute about statutory interpretation; and, as noted above, a House of Congress doesn’t have standing to sue the Executive officials based simply on an allegation that they've failed to comply with statutes or have acted without the requisite statutory authorization.

As we discussed in Part II-A of our brief, it’s easy to recharacterize virtually any alleged statutory violation, or ultra vires action, by the Executive as a transgression of the Constitution.   If, for example, the political branches dispute the scope of a statutory limitation, and if it turns out that the statute in question does, indeed, prohibit the Executive’s action, then in some sense the Executive has “nullified” Congress’s Article I authority to impose the statutory limit.  Recognizing that sort of statutory-to-constitutional recharacterization, we argued, shouldn't change the Article III standing question, in part because it’s too easy a “work-around.”  Cf. Dalton v. Specter (1994) (“[I]f every claim alleging that the President exceeded his statutory authority were considered a constitutional claim,” . . . then any “constitutional challenges” exception to a nonjusticiability rule “would be broadened beyond recognition.  The distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.”).

The House argues in the Mnuchin case that the Appropriations Clause is different in this respect--that it is unique among constitutional limits on the Executive, in a way that supports the House's standing to sue when executive officials misconstrue statutes to afford them power to expend funds that Congress hasn't, in fact, appropriated.  We took issue with that Appropriations-Clause-specific argument in Part III of our 2016 brief.  Again, I’ll leave it to readers to assess that dispute for themselves.  My only point here is that if the court of appeals agrees with our view of it, the narrowest way for the court to resolve Mnuchin would be to hold that the House lacks standing where, as here, the dispute between the parties involves only a matter of statutory, not constitutional, interpretation, thus leaving for another day whether one or both Houses of Congress can sue when the President claims the power to act without congressional authorization.

The McGahn Subpoena Case

By contrast, the House Judiciary Committee’s standing to sue in McGahn is, I think, fairly clear-cut and straightforward.  The Committee there is not, as in Mnuchin, suing the Executive branch simply to require it to comply with the law, but instead is suing a private party to remedy a distinct, concrete injury the Committee has suffered—namely, the denial of testimonial information to which it would be entitled if it’s right on the merits (which has to be assumed for purposes of assessing standing).  (In footnote 2 of our 2016 brief, we specifically distinguished cases such as McGahn.)

In Public Citizen v. DOJ (1989), the Supreme Court held, without dissent, that a plaintiff has standing to sue where it alleges that the defendant has a legal obligation to convey information to the plaintiff—e.g., in the context of the Freedom of Information Act or (as in Public Citizen itself) the Federal Advisory Committee Act.  (Notably, just two days ago, in a case where it held that defined-benefit participants lacked standing to sue plan fiduciaries, the Court dropped a footnote to expressly distinguish suits to obtain information.)  That holding in Public Citizen made sense, especially in light of longstanding FOIA practice, in which individuals can sue to require the government to send them documents even though anyone else would also be entitled to such documents if they, too, followed FOIA procedures, as the Court explained:

[Appellants] seek access to the ABA Committee’s meetings and records in order to monitor its workings and participate more effectively in the judicial selection process. … As when an agency denies requests for information under the Freedom of Information Act, refusal to permit appellants to scrutinize the ABA Committee’s activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue. Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records.  See, e.g., Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989); Department of Justice v. Julian, 486 U. S. 1 (1988); United States v. Weber Aircraft Corp., 465 U. S. 792 (1984); FBI v. Abramson, 456 U. S. 615 (1982); Department of Air Force v. Rose, 425 U. S. 352 (1976).

The McGahn case is basically the same as these, except the parties are reversed:  A governmental entity is suing to obtain information to which it’s allegedly entitled from a private party.  But that flip of the parties shouldn’t make any difference for Article III injury-in-fact purposes.  Government entities, too, have standing to sue to collect information that the defendants allegedly have a legal obligation to convey to them.  The Federal Trade Commission, for instance, often sues to compel production of documents (see, e.g., the cases listed here).  And the Senate has sued to compel production of subpoenaed documents and testimony.  See, e.g., Reed v. County Commissioners of Delaware County, 277 U.S. 376 (1928); In re:  Application of the Senate Permanent Subcommittee on Investigations, 655 F.2d 1232 (D.C. Cir. 1981); Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); Senate Permanent Subcommittee v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016); Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994).  There’s no reason the House or one of its committees shouldn’t likewise have standing to sue to enforce one of its subpoenas.[1]

That conclusion is so straightforward that the DOJ Office of Legal Counsel has repeatedly recognized that a House of Congress can file a civil action to enforce its subpoenas.  Indeed, OLC specifically relied on the prospect of such suits to support its view that the Executive branch itself can disregard a statutory directive to prosecute officials who are held in contempt of Congress for failing to abide by subpoenas based upon a claim of presidential privilege.  (See this amicus brief the Constitutional Accountability Center filed on behalf of former DOJ officials, discussing the OLC opinions.)  And in most or all of the suits that the Senate has brought over the years to enforce its subpoenas (e.g., those cited above), it hasn’t even occurred to anyone to challenge the Senate’s standing—that’s how uncontested the question has been.
            As several of the judges suggested during the en banc argument, it’d also be very strange to hold that the House Judiciary Committee lacks standing to sue McGahn in light of the fact that a court could entertain the exact same dispute if the posture of the suit were just slightly altered.  For example, if McGahn had chosen to comply w ith the subpoena by appearing to testify, the Department of Justice itself (on behalf of the United States) would be able to sue him to enjoin his testimony based upon its so-called “presidential aides immunity” theory, just as it sued AT&T to prevent it from complying with a congressional subpoena, see United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976), and just as Donald Trump has sued his accounting firm and his banks to prevent them from complying with House subpoenas in cases currently pending before the Supreme Court (Trump v. Mazars USA, No. 19-715; Trump v. Deutsche Bank AG, No. 19-760).[2]  Moreover, and as the Government conceded at argument, if the House held McGahn in contempt and arrested him, he could then file a habeas action in which he’d be able to argue that the underlying subpoena was invalid.[3]  There’s no reason to think the Constitution requires such a disfavored, extreme path (the House hasn’t used its power of arrest in almost a century) in order to afford the Judiciary the opportunity to resolve the substantive question that it could more efficiently address in the Judiciary Committee v. McGahn lawsuit.

What’s DOJ’s counterargument?  During the en banc oral argument, DOJ lawyer Hash Mooppan suggested that the House (and presumably the Senate, too) can never sue to enforce its subpoenas, even if the case doesn’t involve the executive branch at all.  And Solicitor General hinted likewise in his recent letter brief to the Supreme Court in the Mazars case, writing that the House’s “institutional injuries do not support Article III standing.”  I honestly don’t understand this argument, or what the basis might be, for example, for contending that the houses of Congress are the only institutions that can’t sue to vindicate their “institutional interests.”  Cf. Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787 (1987) (Judiciary can independently bring action to vindicate its own authority without dependence on another Branch to decide whether proceedings should be initiated).  Notably, in her concurring opinion in the panel decision in McGahn, Judge Henderson rebuked DOJ for making this argument: “I do not believe … Supreme Court precedent supports a holding of that scope.”

DOJ wisely didn’t include such a categorical argument in its brief in the en banc proceedings in McGahn.  Instead, it argued, somewhat more narrowly, that federal courts cannot “adjudicate disputes exclusively between the political branches … where no individual party’s rights are at stake.”  In this respect, DOJ’s argument appears to be the same as that of Judge Griffith’s opinion for the panel majority.  Griffith acknowledged that federal courts can adjudicate privilege and immunity disputes between the branches in other postures, such as in the context of motions to quash subpoenas in criminal proceedings (citing Nixon), in cases where a congressional committee issues a subpoena “to a ‘non-governmental custodian[] of the President’s financial information’” (quoting Mazars), or where, more broadly, a suit asks the court “to ‘decide on the rights of individuals’” (quoting Marbury).  According to Griffith (and DOJ’s brief), courts can resolve interbranch conflicts (i.e., interbranch disagreements about the lawfulness of information demands), but only in the context of a suit involving the rights of a private party, and not in what Judge Griffith repeatedly referred to as “interbranch disputes,” i.e., suits between the branches themselves.

I don’t think that’s right, either—it’s not obvious why a harm (denial of information) that would otherwise constitute an article III injury-in-fact becomes any less of one because a suit is between the two political branches where one claims it has a legal right to obtain information from the other.  

Be that as it may, however, the court of appeals doesn’t need to resolve that question, because this is not (in DOJ’s words) a “dispute[] exclusively between the political branches.”  It is, instead, a case that will “decide the right of [an] individual,” namely, Don McGahn.  The House is suing McGahn in his personal capacity, and his interests in the case—such as to not have to appear before Congress, and to not expose himself to contempt and possible arrest by the House—are personal interests.

In his panel opinion, Judge Griffith inexplicably wrote that “we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena.”  But that is this very case.  To be sure, the grounds on which McGahn is resisting the subpoena are based upon an alleged constitutional prerogative of the President, and the information he would be asked about if he were to appear before the Committee would primarily concern his service in the executive branch.  But as Judge Griffith himself acknowledged, the fact that those are the subjects of the suit—the legal questions the court would have to resolve—doesn’t take it outside of Article III, for federal courts adjudicate such questions all the time.  Thus, even if we assume arguendo that the standing question depends on the presence of a private party to the suit, that criterion is met here. 

Therefore I think the court of appeals will—and should—find that the House Judiciary Committee has standing to sue to enforce its subpoena against McGahn.

* * * *

Finally, a couple of other important things about the McGahn case, apart from the standing question, are worth emphasizing.

What Are the Implications of an En Banc Holding that the House Has Standing?

Even if the en banc court holds that the House committee has standing, you shouldn’t have high expectations that the House will learn very much, if any, new and significant information from McGahn, for three reasons. 

First, there remains another thorny jurisdictional question—whether there’s a cause of action for such a suit—that the court of appeals would have to resolve before it reaches the merits.  See footnote 1.

Second, even if the court concludes that there’s a cause of action and that the Committee should prevail on the merits of McGahn’s “testimonial immunity” defense (which it should—see below), most of what the Committee would ask McGahn would involve his communications with President Trump.  Therefore it’s virtually certain the President would assert executive privilege as to many or most of those communications.  And as Jonathan Shaub has explained (see section entitled “The Immunity Question Is Fascinating—But Likely Meaningless for the Current Inquiry”), the litigation disputes involving those privilege disputes would likely take many months (at least) to resolve—almost surely extending to the end of the House’s current session on January 3. 

Third, I suspect—but of course I don’t know for sure—that McGahn doesn’t have a whole lot more to offer in testimony that isn’t already reflected in the Mueller Report’s very comprehensive account of his description of the relevant events.

What About the Merits of the “Testimonial Immunity” Question?:  Judge Henderson's Surprising Interjection to Reject DOJ's Argument

If the en banc court holds that the Judiciary Committee has standing, and if the panel then concludes that there’s a cause of action for the Committee’s suit, the panel would then have to reach the merits of McGahn’s (i.e., DOJ’s) constitutional defense, which is that certain “senior advisors” to the President are categorically immune from compelled congressional testimony, even without any presidential assertion of executive privilege.  As the Office of Legal Counsel described the proposition in its opinion about the McGahn subpoena itself, this purported immunity “extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser—as a function of the independence and autonomy of the President himself.”  On DOJ’s account, such testimonial immunity isn’t subject to any balancing against congressional need at all, and it extends indefinitely, i.e., beyond the term of the aide’s federal employment.

This argument has virtually nothing to recommend it.  Before the McGahn case, the only judge to have considered it was Judge John Bates, in House Judiciary Committee v. Miers, who concluded that the Office of Legal Counsel opinions on which the argument is based are “not at all” persuasive—that they “are for the most part conclusory and recursive” and fail to “cite[] to a single judicial opinion recognizing the asserted absolute immunity.” 

Judge Bates was right.  The series of OLC and DOJ opinions in question, culminating in the OLC opinion about McGahn himself, are shot through with serious problems and weaknesses, including but not limited to the following:  
-- All of the opinions derive from, and depend heavily upon, a 1971 opinion written by then-Assistant AG William Rehnquist about current (not former) presidential advisors, in which Rehnquist himself referred to his conclusions as “tentative and sketchy,” and in which he acknowledged that the historical precedents on which he relied were “erratic” and “obviously quite inconclusive.” 
-- The Rehnquist opinion and all those that have followed it in lock-step are predicated upon an assumption that the President himself is categorically immune from compelled congressional testimony—a proposition that itself is contested and unresolved and that’s difficult to reconcile with more recent Supreme Court cases rejecting analogous absolute immunity claims, such as United States v. Nixon and, especially, Clinton v. Jones.  (See generally Andy Wright on the question of testimonial immunity for current and former Presidents.) 
-- Even if one assumes the DOJ opinions were correct about presidential immunity, they’re far too quick to extend that immunity to presidential aides, based largely on a (mistaken) presumption that such aides are “alter egos” of the President (or, in the words of the McGahn opinion, that they are “an extension of the President”), and who must therefore have a “derivative” immunity identical to his—a notion the Court rejected in the companion cases of Harlow v. Fitzgerald (1982) and Nixon v. Fitzgerald (1982). 
-- The further extension of the argument to former aides (first announced in a very conclusory 2007 opinion) is unsupported by the most plausible rationales for a “current aide” immunity and depends almost entirely upon former President Truman’s refusal in 1953 to comply with a subpoena directing him to appear before the House Committee on Un-American Activities, which is a thin precedent even for the proposition that former presidents are categorically immune from congressional legal process (see Mike Stern), let alone that former aides are. 
-- The opinions heavily rely upon a series of propositions that don’t withstand scrutiny, such as these from the McGahn opinion (some of which quote previous opinions):  that “Congress may no more summon the President to a congressional committee room than the President may command Members of Congress to appear at the White House”; that allowing Congress to subpoena the President to appear and testify would “promote a perception that the President is subordinate to Congress, contrary to the Constitution’s separation of governmental powers into equal and coordinate branches”; that “[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions”; that “compelled testimony ‘create[s] an inherent and substantial risk of inadvertent or coerced disclosure of confidential information,’ despite the availability of claims of executive privilege with respect to the specific questions asked during such testimony”; that “compelling the adviser’s appearance is not likely to promote any valid legislative interests”; and that “it has been firmly established that members of the President’s immediate staff may not appear before a congressional committee to testify with respect to the performance of their duties” (although they’ve done so countless times).

-- And the so-called “strong historical foundation for the Executive Branch’s position that Congress may not compel the President’s senior advisers to appear and testify” is, in truth, anything but “strong”:  Whereas such aides have frequently testified before Congress throughout the nation’s history, there are only a handful of cases where aides refused a request to appear, and until 1996, apparently only one of those exceptional cases (involving an aide to President Truman in 1948) included a refusal to comply with a subpoena (see this Congressional Research Service report).  The Executive branch did not publicly assert a categorical constitutional immunity from testimonial compulsion for even current aides until 1996.  And its first public extension of the “immunity” argument to former aides only appeared, with little effort at justification, in 2007.  Moreover, neither Congress nor any judge has ever accepted the argument.

Not surprisingly, then, the district judge in the McGahn case, Kentanji Brown Jackson, rejected the testimonial immunity argument for substantially the same reasons that Judge Bates had earlier done so in the Miers case. 

What was much more surprising was the reception the argument received on appeal in the McGahn case, from a jurist who’s traditionally been more receptive to claims of executive prerogative.  The panel in McGahn held by a 2-1 vote that the House lacked standing to compel McGahn’s testimony—the issue now before the en banc court (discussed above).  Judge Karen LeCraft Henderson joined Judge Griffith’s majority opinion.  Yet even though she concluded that the court lacked Article III jurisdiction to hear the case, and wrote separately thatthe Committee’s lack of standing eliminates the need to reach the merits,” Judge Henderson proceeded to write ten pages (see pp. 10-20) on the merits, anyway, in which she thoroughly rebuked DOJ’s immunity argument.  (Neither Judge Griffith nor Judge Rogers addressed the merits, but there’s no reason to think either of them would disagree with Judge Henderson.)   

Judge Henderson judiciously wrote that “McGahn’s claimed immunity rests on somewhat shaky legal ground.”  But the bulk of her opinion left no doubt about what she thought of it.  She pointed out how the 1971 Rehnquist opinion relied upon “generalizations” that were “necessarily tentative and sketchy,” and that “[s]ubsequent OLC opinions are largely derivative and identify no caselaw recognizing the existence of such immunity from congressional process.”  She explained that even if one assumes the President himself is absolutely immune from compelled congressional process, “it does not necessarily follow that his close advisors are too.”  She emphasized that “[i]n past political battles, executive officials—including sitting and former presidents—often acquiesced, voluntarily providing testimony and documents.”  And she pointed to President Polk’s view that when the House is contemplating a possible impeachment (as it was when it subpoenaed McGahn), its power “in the pursuit of this object, would penetrate into the most secret recesses of the Executive Departments” and that the House “could command the attendance of any and every agent of the Government, and compel them . . . to testify on oath to all facts within their knowledge”—a presidential view that “stands in stark contrast to the expansive immunity now pushed by McGahn.”  Judge Henderson also systematically explained how each of DOJ’s functional considerations can be adequately addressed without a categorical immunity, and, in particular, that “it seems likely that the invocation of well-settled privileges could adequately protect the Executive Branch’s undeniably critical interests.”

            What appears to have most bothered Judge Henderson, though, is that DOJ’s assertion of absolute immunity, “unlike an assertion of privilege to specific questions, which encourages the parties to use accommodation and other political tools,” prevents the use of those tools and “prematurely involve[s] the courts.”  “Even setting aside the shaky foundation of testimonial immunity,” she wrote,

a categorical refusal to participate in congressional inquiries strikes a resounding blow to the system of compromise and accommodation that has governed these fights since the republic began.  Political negotiations should be the first—and, it is hoped, only—recourse to resolve the competing and powerful interests of two coequal branches of government.  And even if one is skeptical of this rosy projection, I believe the applicable privileges provide a narrower starting point and, should the parties reach an impasse, frame the issue in a manner more suitable—and, indeed, more familiar—to judicial resolution.

            In light of internal OLC norms of stare decisis, perhaps it was understandable that OLC and the Department of Justice persisted in pressing the absolute testimonial immunity argument until recently, notwithstanding how threadbare it is on the merits (particularly as to former aides) and no matter that Judges Bates and Jackson thoroughly rejected it.  But when Judge Henderson goes out of her way to thoroughly excoriate the argument, even in a case where she’s concluded that the court lacks jurisdiction to reach the merits, that ought to send a very powerful signal to OLC and to DOJ litigators that now’s the time to abandon such an unpersuasive argument.  The fact that Executive branch officials might continue to be able to “get away with” refusing to comply with congressional subpoenas (because it might be difficult for the House ever to obtain a final judgment requiring such officials to testify) is no reason for OLC to stick to its guns when the weakness of its argument is so palpable that even Judge Henderson reached out to eviscerate it.  Indeed, as the Judge herself explained, the fact that the courts are unlikely to settle the question any time soon is all the more reason why the Executive branch itself should now do the right thing.

[1] McGahn has argued that, unlike the Senate, the House lacks a statutory cause of action to sue to enforce its subpoenas.  The House responds that the court has statutory jurisdiction under 28 U.S.C. § 1331—an argument Judge Rogers accepted in her dissent from the panel opinion in McGahn (see pages 25-30).  That question is, I think, much closer than the Article III question, but the court didn't include it as a question presented for en banc consideration, so the panel will have to assess it on remand if the en banc court concludes that the Judiciary Committee has standing.

[2] Shortly before argument in those cases, the Supreme Court asked the parties to file briefs concerning whether there were any “justiciability” obstacles to reaching the merits.  Unsurprisingly, Trump, the House and the Solicitor General all agreed that there are no such barriers—in particular, no party suggested that Trump lacks standing to sue to enjoin Mazars, Deutsche Bank and Capitol One from complying with the subpoenas that House committees have issued to those entities, and the Solicitor General specifically argued that Trump does have standing to sue to enjoin the subpoenas.  During the oral argument in the cases, no Justice or party raised any questions about Trump’s standing.

[3] In response to a question from Judge Garland, DOJ lawyer Hash Mooppan said that McGahn would not have standing to sue if he were merely held in contempt, before the House arrested him.  I don’t understand why that’d be so.  The contempt citation, after all, itself imposes reputational and professional injuries.  Moreover, McGahn should be able to sue even before being held in contempt because compliance with the compulsory process (the subpoena) would itself injure him:  he'd have to go to the trouble of appearing before the Committee.  (Such a suit would likely be unsuccessful because of the Speech or Debate Clause, but that’s a merits, not a standing, barrier.)  President Nixon, for example, obviously had Article III standing to appeal a decision by a district court denying his motion to quash a subpoena for his records, even though he hadn’t yet been held in contempt, let alone arrested, for failing to comply.  See United States v. Nixon, 418 U.S. 683 (1974).

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