*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
COMMITTEE ON THE JUDICIARY, )
UNITED STATES HOUSE OF )
REPRESENTATIVES, )
) Plaintiff, )
) v. ) Civ. No. 19-cv-2379 (KBJ)
) DONALD F. MCGAHN II, )
) Defendant. )
)
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................. 1 II. BACKGROUND ................................................................................................ 7
A. Factual Background ................................................................................. 7 B. Committee on Judiciary, U.S. House of Representatives v. Miers ........... 15 C. Procedural History ................................................................................ 20 III. LEGAL STANDARDS .................................................................................... 23
A. Cross-Motions For Summary Judgment Under Federal Rule of Civil Procedure 56 ......................................................................................... 23 B. Common Law Adherence To Precedent .................................................. 24 C. Subpoena-Related Rights, Duties, Privileges, And Immunities ............... 27 1. Subpoenas In Standard Civil Actions ........................................... 29 2. Legislative Subpoenas ................................................................. 33 IV. ANALYSIS ..................................................................................................... 37
A. Federal Courts Have The Power To Adjudicate Subpoena-Related Disputes Between Congress And The Executive Branch ......................... 41 1. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over Subpoena-Enforcement Claims Under 28 U.S.C. § 1331 ............................................................................. 41 *2 2. Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute ............................................................ 46 a. The legal claim at issue here is not non-justiciable ............ 47 b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process ..................... 51 c. Traditional separation-of-powers principles do not support DOJ’s suggestion that the federal courts cannot resolve legal disputes between the other branches of government ....................................................................... 60 B. House Committees Have The Power To Enforce Their Subpoenas In Federal Court When Executive Branch Officials Do Not Respond As Required ............................................................................................... 66 1. Defiance Of A Valid Subpoena Indisputably Qualifies As A Cognizable Injury In Fact, And In The Context Of Congressional Investigations, The Harm Is Significant And Substantial .................................................................................. 68 2. The Constitution Itself Provides A Cause Of Action For A Thwarted House Committee To Proceed In Federal Court ............ 77 3. There Is No Separation-Of-Powers Impediment To The Judiciary Committee’s Seeking To Vindicate Its Rights In Federal Court .............................................................................. 81 C. The President Does Not Have The Power To Prevent His Aides From Responding To Legislative Subpoenas On The Basis Of Absolute Testimonial Immunity ........................................................................... 89 1. Miers Squarely Rejects The Argument Senior-Level Presidential Aides Enjoy Absolute Testimonial Immunity ............ 90 2. OLC’s Long-Held View That Senior-Level Presidential Aides Have Absolute Testimonial Immunity Is Neither Precedential Nor Persuasive ........................................................ 97 3. There Is No Principled Basis For Concluding That Senior-Level Presidential Aides Should Have Absolute Testimonial Immunity ............................................................... 102 4. Concluding That Presidential Aides Enjoy Absolute Testimonial Immunity At The President’s Discretion Conflicts With Core Constitutional Norms ................................ 113 V. CONCLUSION .............................................................................................. 116
ii
MEMORANDUM OPINION
I. INTRODUCTION
In 2008, in the context of a dispute over whether the Committee on the Judiciary
of the House of Representatives (“the Judiciary Committee”) had the power to compel
former White House Counsel Harriet Miers and then-White House Chief of Staff Joshua
Bolten to testify and produce documents in connection with a congressional
investigation, the Department of Justice (“DOJ”) made three legal contentions of
“extraordinary constitutional significance.”
Comm. on Judiciary, U.S. House of
Representatives v. Miers
,
The more things change, the more they stay the same. On May 20, 2019, President Donald J. Trump directed former White House Counsel Donald F. McGahn II to decline to appear before the Judiciary Committee in response to a subpoena that the Committee had issued to McGahn in connеction with its investigation of Russia’s interference into the 2016 presidential election and the Special Counsel’s findings of fact concerning potential obstruction of justice by the President. ( See Letter from Pat A. Cipollone, Counsel to the President, to William A. Burck (May 20, 2019), Ex. E to Decl. of Michael M. Purpura (“Purpura Decl.”), ECF No. 32- 3, at 46–47.) [1] Months of negotiations ensued, which produced no testimony from McGahn, and on August 7, 2019, the Judiciary Committee filed the instant lawsuit. Invoking Article I of the U.S. Constitution, the Judiciary Committee implores this Court to “[d]eclare that McGahn’s refusal to appear before the Committee in response to the subpoena issued to him was without legal justification” (Compl., ECF No. 1, at 53), and it also seeks an “injunction ordering McGahn to appear and testify forthwith before the Committee” ( id .).
The Judiciary Committee and DOJ (which is representing McGahn in the instant legal action) have now filed the cross-motions for summary judgment, which are before this Court at present. ( See Pl.’s Mot. for Prelim. Inj. or, in the alternative, for Expedited Partial Summ. J. (“Pl.’s Mot.”), ECF No. 22; Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 32.) In its motion, the Judiciary Committee reiterates the basic contention that, having received a subpoena from a duly authorized committee of Congress exercising its investigative powers under Article I of the Constitution, “McGahn is legally obligated to testify” (Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem.”), ECF No. 22-1, at 14), and “has no valid interest in defying the Committee’s subpoena” ( id. at 54). In response, DOJ renews its (previously unsuccessful) threshold objections to the standing and right of the Judiciary Committee to seek to enforce its subpoenas to senior-level presidential aides in federal court, and it also robustly denies that federal courts have the authority to exercise subject-matter jurisdiction over subpoena- enforcement claims brought by House committees with respect to such Executive branch officials. ( See Def.’s Mot. at 32–33, 43, 53); see also Miers , 558 F. Supp. 2d at 65–94. DOJ further insists that the Judiciary Committee’s claim that McGahn is legally obligated to testify fails on its merits, primarily because DOJ’s Office of Legal Counsel (“OLC”) has long maintained that present and former senior-level aides to the President, such as McGahn, are absolutely immune from being compelled to testify before Congress if the President orders them not to do so. ( See Def.’s Mot. at 60–74.)
For the reasons explained in this Memorandum Opinion, as well as those laid out
in
Miers
, the Judiciary Committee’s motion for partial summary judgment is
GRANTED
, and DOJ’s cross-motion for summary judgment is
DENIED
. In short, this
*6
Court agrees with Judge Bates’s conclusion that federal courts have subject-matter
jurisdiction to resolve legal disputes that arise between the Legislature and the
Executive branch concerning the scope of each branch’s subpoena-related rights and
duties, under section 1331 of Title 28 of the United States Code and the Constitution.
See Miers
,
DOJ’s arguments to the contrary are rooted in “the Executive’s interest in
‘autonomy[,]’” and, therefore, “rest[] upon a discredited notion of executive power and
privilege.”
Id.
at 103. Indeed, when DOJ insists that Presidents can lawfully prevent
their senior-level aides from responding to compelled congressional process and that
neither the federal courts nor Congress has the power to do anything about it, DOJ
*7
promotes a conception of separation-of-powers principles that gets these constitutional
commands exactly backwards. In reality, it is a core tenet of this Nation’s founding
that the powers of a monarch must be split between the branches of the government to
prevent tyranny.
See
The Federalist No. 51 (James Madison);
see also Buckley v.
Valeo
,
During the hearing that this Court held regarding the parties’ cross-motions for summary judgment, the Court asked DOJ’s counsel whether its absolute immunity assertion with respect to McGahn was somehow different than the absolute immunity that former White House Counsel Harriet Miers had claimed, or whether it was DOJ’s position that the Miers case was simply wrong to conclude that absolute testimonial immunity is not an available legal basis for thwarting compelled congressional process with respect to senior-level presidential aides. Counsel answered “both.” (Hr’g Tr., ECF No. 44, at 31:5–10.) Upon review of the motions and the relevant law, however, it is clear to this Court that the correct response to its inquiry is “neither.” That is, the United States District Court for the District of Columbia has seen these same facts and *8 these same legal arguments before, and DOJ has done little to persuade thi s Court that the case should turn out differently in the end. Instead, this Court concurs with the thrust of Miers ’s conclusion that, whatever the scope of the President’s executive privilege with respect to the information that Congress seeks to compel, and whatever the merits of DOJ’s assertion that senior-level aides are the President’s “alter egos” for the purpose of invoking an immunity, DOJ has failed to bridge the yawning gap between a presidential aide’s right to withhold privileged information in the context of his or her compelled congressional testimony (which no one disputes), and the President’s purported power to direct such aides to refuse to show up and be questioned at all (which appears only in a string of OLC opinions that do not themselves constitute legal precedents and are manifestly inconsistent with the constitutional jurisprudence of the Supreme Court and the D.C. Circuit in many respects).
Thus—to be crystal clear—what is at issue in this case is solely whether senior-
level presidential aides, such as McGahn, are legally required to respond to a subpoena
that a committee of Congress has issued, by appearing before the committee for
testimony despite any presidential directive prohibiting such a response. The Court
distinguishes this issue from the very different question of whether the specific
information that high-level presidential aides may be asked to provide in the context of
such questioning can be withheld from the committee on the basis of a valid privilege.
In other words, “the Court only resolves, and again rejects, the claim by the Executive
to absolute immunity from compelled congressional process for senior presidential
aides.”
Miers
,
II. BACKGROUND
A. Factual Background
The material facts that underlie this lawsuit are not in dispute. On March 4, 2019, the Judiciary Committee opened an investigation into allegations that President Trump and his associates had engaged in various forms of misconduct during the lead up to the 2016 presidential election and in the years since. ( See Pl.’s Stmt. of Material Facts Not in Dispute (“Pl.’s Stmt. of Facts”), ECF No. 22-4, ¶ 75 (citing Press Release, H. Comm. on the Judiciary, House Judiciary Committee Unveils Investigation Into Threats Against the Rule of Law (Mar. 4, 2019)); see also H.R. Rep. No. 116-105, at 13 (2019) (announcing an investigation into “possible malfeasance, abuse of power, corruption, obstruction of justice, or other misconduct on the part of the President or other members of his Administration”).) [2] In its complaint, the Judiciary Committee alleges that one of the driving forces behind its investigation is the separate investigation that Special Counsel Robert S. Mueller III conducted between 2017 and 2019 regarding alleged Russian interference in the 2016 presidential election, the *10 results of which are memorialized in a 448- page report that the Special Counsel’s Office issued on March 22, 2019. ( See Compl., ECF No. 1, ¶¶ 1–3 (citing Robert S. Mueller III, Report On The Investigation Into Russian Interference In The 2016 Presidential Election (March 2019) (“Mueller Report”).) In the complaint, the Judiciary Committee invokes the Mueller Report when describing the purposes of its investigation, which allegedly include determining “whether the conduct uncovered may warrant amending or creating new federal authorities, including among other things, relating to election security, campaign finance, misuse of electronic data, and the types of obstructive conduct that the Mueller Report describes”; and “whether any of the conduct described in the Special Counsel’s Report warrants the Committee in taking any further steps under Congress’ Article I powers . . . includ[ing] whether to approve articles of impeachment with respect to the President or any other Administration official.” (Compl. ¶ 61 (quoting H.R. Rep. No. 116-105, at 13 (internal quotation marks omitted)).)
The Special Counsel’s investigation and findings have been summarized
elsewhere,
see, e.g.
,
In re Application of Comm. on Judiciary, U.S. House of
Representatives, for an Order Authorizing Release of Certain Grand Jury Materials
,
No. 19-gj-48,
On March 4, 2019, in conjunction with the Judiciary Committee’s investigation, Jerrold Nadler, the Chairman of the Judiciary Committee, sent a letter to McGahn asking that he voluntarily provide the Committee with certain documents delineated in an attachment to his letter. ( See Letter from Jerrold Nadler, Chairman H. Comm. on the Judiciary, to Donald F. McGahn II (Mar. 4, 2019), Ex. R to Decl. of Todd B. Tatelman (“Tatelman Decl.”), ECF No. 22-3.) In response to this request, McGahn’s private attorney, William Burck, sent a letter to Chairman Nadler on March 18, 2019, indicating that Burck had forwarded the document request to the White House and to the Trump Campaign, because those entities “are the appropriate authorities to decide the scope of access to these documents, including whether a claim of executive, attorney-client and/or attorney work product privilege would protect such information from disclosure.” (Letter from William A. Burck to Jerrold Nadler, Chairman H. Comm. on the Judiciary (Mar. 18, 2019), Ex. S to Compl., ECF No. 1-19.) When the Judiciary Committee had not received a response to its voluntary document request as of April 22, 2019, it issued a subpoena ad testificandum to McGahn ( see Subpoena to *12 Donald F. McGahn II (“Subpoena”), Ex. U to Tatelman Decl., ECF No. 22-3 at 497– 508), pursuant to a resolution that the Committee had adopted on April 3, 2019, authorizing the issuance of subpoenas in conjunction with its investigation ( see Pl.’s Stmt. of Facts ¶ 84). The subpoena instructed McGahn to produce documents pertaining to 36 specific topics, including the FBI’s investigation of Michael Flynn , the termination of James Comey, Jeff Sessions’s recusal decision, and the Special Counsel’s investigation, by no later than May 7, 2019 ( see Subpoena at 497, 499–501), and it also called for McGahn to appear to testify before the Judiciary Committee on May 21, 2019 ( id. at 497).
On May 7, 2019, White House Counsel Pat Cipollone sent a letter to Burck in which he relayed instructions to McGahn from the Acting Chief of Staff to the President, Mick Mulvaney. ( See Letter from Pat A. Cipollone, Counsel to the President, to William A. Burck (May 7, 2019), Ex. C to Purpura Decl., ECF No. 32-3, at 30.) The letter explained that McGahn was “not to produce White House records in response to the Committee’s April 22 subpoena” on the grounds that the requested records “remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.” ( Id. ) Cipollone contemporaneously sent Judiciary Committee Chairman Nadler a letter making the same points about the protected nature of the documents, and informing him of the instructions that the White House had provided to McGahn. ( See Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman H. Comm. on the Judiciary (May 7, 2019), Ex. C to Purpura Decl., ECF No. 32-3, at 31.) Cipollone’s letter to Nadler indicated that the White House *13 Counsel’s Office would be making the decision as to whether or not McGahn would respond to the Committee’s subpoena. ( See id . (asserting that the White House Counsel’s Office “will respond to the Committee concerning its interest in the records”).)
On that same day, Chairman Nadler sent a letter to Burck in which he
emphasized that, absent a court order directing otherwise, McGahn must appear before
the Committee and testify on May 21, 2019, or the Committee would hold him in
contempt. (
See
Letter from Jerrold Nadler, Chairman H. Comm. on the Judiciary, to
William A. Burck (May 7, 2019), Ex. II to Compl., ECF No. 1-35, at 3.) Chairman
Nadler followed up on May 17, 2019, with a letter to McGahn, via his counsel,
reemphasizing that it was the Committee’s expectation that he appear, and explaining
that, because the Committee intended “to focus on the very topics covered in the
Special Counsel’s Report . . . there can be no valid assertion of executive privilege
given that President Trump declined to assert any privilege over Mr. McGahn’s
testimony, or over any portion of the Report itself.” (
See
Letter from Jerrold Nadler,
Chairman H. Comm. on the Judiciary, to Donald F. McGahn II (May 17, 2019), Ex. W
to Compl., ECF No. 1-23, at 2 (internal quotation marks and citation omitted).) Nadler
closed this letter by stating that “even if the President . . . invokes executive privilege
over your testimony, and you decide to abide by that improper assertion, you are still
required under the law and the penalty of contempt to ‘appear before the Committee to
provide testimony, and invoke executive privilege where appropriate.’” (
Id.
at 2
(quoting
Miers
,
On May 20, 2019, the day before McGahn was to testify before the Committee, Cipollone sent a letter to Burck stating that President Trump was instructing McGahn not to appear at the scheduled hearing. ( See Letter from Pat A. Cipollone, Counsel to the President, to William A. Burck (May 20, 2019), Ex. E to Purpura Decl., ECF No. 32-3, at 46–47.) Cipollone attached to his letter a memorandum from the Office of Legal Counsel which opines that, as a former “senior advisor” to the President, McGahn is protected by “testimonial immunity” and that “Congress may not constitutionally compel [him] to testify about [his] official duties.” ( Id. at 48.) [3] Cipollone also sent a letter to Chairman Nadler informing him of the instructions that had been provided to McGahn. ( See Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman H. Comm. on the Judiciary (May 20, 2019), Ex. 2 to Decl. of Barry H. Berke (“Berke Decl.”), ECF No. 22-2, at 21–22.) That same day, Burck sent a letter to Chairman Nadler informing him of this development and stating that, as a result of the President’s instructions, McGahn was “facing contradictory instructions from two co-equal branches of government.” (Letter from William A. Burck to Jerrold Nadler, Chairman H. Comm. on the Judiciary (May 20, 2019), Ex. X to Tatelman Decl., ECF No. 22-3, at 510.) Burck further explained that he found the OLC’s opinion “persuasive” and that, “[u]nder these circumstances, and also conscious of the duties [McGahn], as an attorney, owes to his former client, Mr. McGahn must decline to appear at the hearing tomorrow.” ( Id. ) Burck concluded his letter by stating that McGahn “remains obligated to maintain the status quo and respect the President’s *15 instruction[,]” but that if the Committee and Executive were to reach an accommodation, McGahn “would of course comply with that accommodation.” ( Id. at 511.)
Nadler responded immediately to McGahn, via his counsel, with a letter in which
he described President Trump’s command to McGahn not to appear as “unprecedented”
and insufficient “to excuse your obligation to appear before the Committee.” (Letter
from Jerrold Nadler, Chairman H. Comm. on the Judiciary, to Donald F. McGahn II
(May 20, 2019), Ex. Z to Tatelman Decl., ECF No. 22-3, at 544.) In his letter, Nadler
noted that the
Miers
case had rejected the contention that a former White House
Counsel could refuse to appear in response to a congressional subpoena by virtue of
absolute testimonial immunity (
see id.
), and he informed McGahn that it was the
Committee’s position that McGahn was “‘not excused from compliance with the
Committee’s subpoena by virtue of a claim of executive privilege that may ultimately
be made’” (
id.
at 546 (quoting
Miers
,
Ultimately, as a result of the White House’s invocation of absolute testimonial immunity, McGahn did not appear to testify on May 21 ( see Pl.’s Stmt. of Facts ¶¶ 91, 93), and on May 31, 2019, Nadler sent a letter to McGahn and Cipollone in which the Committee offered to accept a modified privilege log with respect to subpoenaed documents being withheld on the basis of privilege, and belated production of non- privileged documents. ( See Letter from Jerrold Nadler, Chairman H. Comm. on the *16 Judiciary, to Donald F. McGahn II and Pat A. Cipollone, Counsel to the President (M ay 31, 2019), Ex. Z to Tatelman Decl., ECF No. 22-3, at 536.) Nadler also offered “to discuss any reasonable accommodation(s) that would facilitate Mr. McGahn’s appearance before the Committee,” and he proposed a number of options “including limiting the testimony to the specific events detailed in the Special Counsel’s report, identifying with greater specificity the precise areas of intended inquiry, and agreeing to the presence of White House counsel during any testimony, so that Mr. McGahn may consult regarding the assertion of executive privilege.” ( Id. at 537.) The Judiciary Committee did not receive any response to this letter. ( See Pl.’s Stmt. of Facts ¶ 96.)
On June 17, 2019, a call took place between representatives of the Judiciary Committee and the White House, during which the Committee once again offered to limit the scope of any testimony from McGahn. ( See Berke Decl. ¶ 8.) Follow-up calls regarding potential accommodations took place on June 18, 2019, and on June 21, 2019, and there was an in-person meeting on June 25, 2019, but no resolution was reached. ( See id. ¶¶ 9–11.) During a subsequent call on July 1, 2019, the White House indicated that it “was not willing to accept any accommodation involving Mr. McGahn’s public testimony.” ( Id. ¶ 12.) However, the White House did offer “to consider allowing Mr. McGahn to appear for a private interview rather than for public testimony, subject to appropriate conditions that the parties would have to negotiate.” (Purpura Decl. ¶ 18.) In response, the Judiciary Committee indicated that it “was not willing to consider anything other than testimony at a public hearing.” ( Id. ¶ 19.) Another call took place on July 12, 2019, during which the Committee reiterated its slate of proposed accommodations, including limiting McGahn’s testimony to the Mueller Report and *17 allowing White House counsel to sit behind McGahn during his testimony, and it also offered to negotiate any issues that arose during his testimony. ( See Berke Decl. ¶ 13.) The White House rejected this proposal during a subsequent call that took place on July 17, 2019 ( see id. ¶ 14), and, separately, McGahn’s counsel reaffirmed that McGahn would continue to comply with the President’s directive not to testify ( id. ¶ 15–16).
Although the White House and the Committee were not able to resolve their differences with respect to McGahn’s testimony, they did reach an agreement regarding his production of the subpoenaed documents. ( See Purpura Decl. ¶ 21.) Under this agreement, the White House would make responsive documents available to the Judiciary Committee after privilege review, subject to certain terms and conditions regarding access to and dissemination of the documents. ( See id. ) [4] Committee on Judiciary, U.S. House of Representatives v. Miers
B.
One who doubts that history repeats itself need look back no further than an
investigation that the Judiciary Committee conducted in 2007, with respect to the forced
resignation of seven United States Attorneys, to prove the point. In that dispute, the
Executive branch likewise refused to comply with voluntary requests, and following an
authorizing vote, the Judiciary Committee issued a subpoena to Harriet Miers, former
White House Counsel to President George W. Bush. The Judiciary Committee’s
subpoena required that Miers produce documents and appear before the Committee to
give testimony regarding any influence that the White House may have exerted over
*18
DOJ’s decision to request the resignations of various United States Attorneys, some of
whom were in the process of investigating prominent politicians or had rebuffed
requests from Republican officials to undertake certain investigations.
Miers
, 558 F.
Supp. 2d at 57–63. In response to the Judiciary Committee’s subpoena, the Executive
branch asserted that all of the documents sought were protected by executive privilege,
and, accordingly, the White House informed the Committee that no documents would be
forthcoming.
See id.
at 62.
[5]
With respect Miers’s testimony, President Bush initially
asserted executive privilege as well, but the White House ultimately took the position
that “Miers was absolutely immune from compelled congressional testimony[.]”
Id.
In
support of this legal position, the White House proffered an OLC opinion to this effect.
See id.
;
see also Immunity of Former Counsel to the President from Compelled
Congressional Testimony
,
Thereafter, the Judiciary Committee filed a lawsuit seeking a court order and a
declaration that, among other things, “Miers must comply with a subpoena and appear
before the Committee to testify[.]”
Miers
,
Judge Bates resolved the parties’ contentions in a detailed, 93-page slip opinion
that ultimately denied the Executive branch’s motion and granted the Committee’s
motion, thereby requiring Miers to appear and testify.
Id.
at 108. At the outset of his
opinion, Judge Bates addressed the question of federal question subject-matter
jurisdiction under 28 U.S.C. § 1331 (even though both parties conceded its existence)
and found that section 1331 was the source of the court’s subject-matter jurisdiction
over the dispute.
See id.
64–65. Turning to the question of standing, Judge Bates found
that a prior decision from the D.C. Circuit—
United States v. AT & T
,
Turning next to the Executive branch’s contentions regarding the lack of a cause
of action, Judge Bates found that, through the Declaratory Judgment Act, the Judiciary
Committee could enforce the House’s constitutional “‘power of inquiry[,]’” and that the
*20
associated “‘process to enforce’” that constitutional interest was “‘an essential and
appropriate auxiliary to the legislative function.’”
Id.
at 75 (quoting
McGrain v.
Daugherty
,
With respect to whether the court should exercise its equitable discretion and thus decline to decide the parties’ dispute based on separation-of-powers concerns, Judge Bates rejected “the contention that judicial intervention in this arena at the request of Congress would be unprecedented in the nation’s history[,]” id. at 95–96, and also found that, because the Judiciary is the ultimate arbiter when it comes to claims of executive privilege, declining to consider the case would be more harmful to the balance of powers between the three Branches than deciding the case, see id. at 96. Judge Bates further dismissed the Executive branch’s аrgument that a ruling would open the floodgates of litigation, noting that the possibility for such litigation has existed since the Nixon era. See id.
Having resolved the threshold issues, Judge Bates then turned to the merits of the
case.
See id.
at 99. He “reject[ed] the Executive’s claim of absolute immunity for
senior presidential aides” and began his discussion of such immunity by noting that
“[t]he Executive cannot identify a single judicial opinion that recognizes absolute
immunity for senior presidential advisors in this or any other context.”
Id.
Judge Bates
explained that the Supreme Court’s decision in
Harlow v. Fitzgerald
,
The coda to the Miers case is that the Executive branch appealed Judge Bates’s decision, but the parties reached a settlement, and the Executive branch subsequently dismissed its appeal. Notably, as an explicit condition of the settlement agreement, the Executive branch agreed not to request that Judge Bates vacate or set aside his opinion. See Letter from Irvin B. Nathan to Michael F. Hertz (Mar. 5, 2009), Comm. on Judiciary, U.S. House of Representatives v. Miers , No. 08-cv-0409, ECF No. 68-1, at 8– 9 (Oct. 22, 2019). Consequently, the Miers Memorandum Opinion and Order remained in effect, and as it turns out, that case represents the only definitive legal ruling on the question of whether senior-level presidential aides are absolutely immune to compelled congressional process between 2008 and the present.
C. Procedural History
Despite Miers , the Judiciary Committee and the White House found themselves at a subpoena-related impasse once again, when, on May 20, 2019, President Trump directed Don McGahn not to appear before the Judiciary Committee, as previously described. The Judiciary Committee filed the instant lawsuit on August 7, 2019, and it asserts a single cause of action: “Article I of the Constitution[.]” (Compl. at 52.) Just as in Miers , the Committee in the instant case claims that “[t]here is no lawful basis for McGahn’s refusal to appear before the Judiciary Committee” ( id. ¶ 110); that he “enjoys no absolute immunity from appearing before the Judiciary Committee” ( id. ¶ 111); and that “McGahn has violated . . . his legal obligations by refusing to appear before the Judiciary Committee . . . [and] by refusing to answer questions where there has been no assertion of executive or other privilege or where executive privilege has been waived” ( id. ¶ 113). The Committee also alleges that, with respect to McGahn’s testimony in particular, “[t]he President has waived executive privilege as to the subpoenaed testimony that relates to matters and information discussed in the [Mueller] Report.” ( Id. ¶ 112.) As a remedy for these alleged violation, the Judiciary Committee specifically asks this Court to award the following declaratory and injunctive relief:
1. Declare that McGahn’s refusal to appear before the Committee in response to the subpoena issued to him was without legal justification;
2. Issue an injunction ordering McGahn to appear and testify forthwith before the Committee; and
3. Issue an injunction ordering McGahn to testify as to matters and information discussed in the Special Counsel’s Report and any other matters and information over which executive privilege has been waived or is not asserted.
( Id. at 53.)
On August 26, 2019, almost three weeks after it filed the complaint, the Judiciary Committee filed a motion that requested a preliminary injunction or, alternatively, expedited partial summary judgment. ( See Pl.’s Mot.) The parties subsequently agreed to have the Court treat this motion as one seeking expedited partial summary judgment. ( See Min. Order of Sept. 3, 2019.) [7] The Judiciary Committee and DOJ then negotiated a schedule for the briefing of legal issues related to whether this Court has jurisdiction to declare that McGahn’s refusal to appear is unlawful and to compel him to appear before the Committee—i.e., the first two prongs of the Committee’s rеquest for relief ( see Def.’s Mot.; Reply in Supp. of Pl.’s Mot. and Opp’n to Def.’s Mot. (“Pl.’s Reply”), ECF No. 37; Reply in Supp. of Def.’s Mot. (“Def.’s Reply”), ECF No. 40))—and the parties also briefed the merits of the question of the validity of DOJ’s claim of absolute testimonial immunity. Importantly, the issue of whether McGahn must answer any particular question that the Judiciary Committee poses and/or whether executive privilege applies to the answers McGahn might be compelled to give with respect to questions about the Mueller Report or otherwise (i.e., the third prong of the Committee’s request for relief) is not currently before this Court.
In its motion for summary judgment, the Judiciary Committee relies heavily on Judge Bates’s decision in Miers , and argues that this Court has subject-matter jurisdiction over the claims raised in the complaint by virtue of 28 U.S.C. § 1331. ( See Pl.’s Mem. at 33).) The Judiciary Committee also asserts that it has standing to bring *24 this lawsuit ( see id. at 33–35), and that Article I of the Constitution and the Declaratory Judgment Act provide it with the means to vindicate its right to enforce the subpoena ( see id. at 35–36). The Judiciary Committee further maintains that “[t]his case is justiciable and appropriate for this Court’s review” even though it arises from a conflict between the two political branches of the federal government. ( Id. at 36–37.) With respect to the merits of the contention that McGahn has absolute testimonial immunity, the Judiciary Committee argues that there is no support for such a claim anywhere in the caselaw ( see id. at 39–45), and that McGahn must instead appear before the Judiciary Committee ( see id. at 54).
DOJ’s cross-motion responds that Miers was “wrongly decided” and that “[t]his Court should not repeat [Judge Bates’s] errors.” (Def.’s Mot. at 48.) It argues, as a threshold matter, that this Court lacks subject-matter jurisdiction over the Judiciary Committee’s complaint, both because this type of inter-branch political dispute is not one that courts have traditionally adjudicated in light of separation-of-power principles ( see id . at 32–33; see also id. at 40 (arguing that “[s]uits of this kind threaten the separation of powers and its system of checks and balances that has served the Nation well for 230 years”), and because the Judiciary Committee lacks a cognizable injury for standing purposes ( id. at 36–37). DOJ further maintains that neither 28 U.S.C. § 1331 nor any other statute vests this Court with statutory subject-matter jurisdiction over the Judiciary Committee’s complaint ( see id. at 43–46), and likewise, that no substantive cause of action exists that allows the Judiciary Committee to sue in federal court to *25 enforce its subpoena ( see id. at 52–56). [8] Regarding the merits of the dispute, DOJ references OLC opinions and contends that the President is absolutely immune from providing compelled testimony to Congress. See id. at 60, 63. Moreover, as a derivative matter, DOJ argues that the President’s immediate a dvisors—whom DOJ calls his “alter egos”—enjoy this same absolute testimonial immunity. ( See id. at 64– 66.) DOJ further maintains that current and former White House Counsels are the kinds of immediate advisors who are covered by this blanket immunity. ( See id. at 68–71.)
This Court held a motions hearing on the parties’ cross-motions for summary judgment on October 31, 2019. ( See Min. Entry of Oct. 31, 2019.) III. LEGAL STANDARDS
A. Cross-Motions For Summary Judgment Under Federal Rule of Civil Procedure 56
The Federal Rules of Civil Procedure provide the procedural parameters for the
Court’s consideration of the motions that the parties have presented in this case.
Federal Rule of Civil Procedure 56 requires a court to grant summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In general, this means
that the movant must demonstrate that there are no triable issues of fact in the case,
such that the court can determine the outcome as a matter of law. Thus, in a typical
*26
case, the Rule 56 question is whether the moving party has met its burden of
demonstrating the absence of a genuine dispute as to any material fact, or whether there
is a genuine issue of fact that will need to be resolved at trial.
See, e.g.
,
Hoyte v.
District of Columbia
, No. 13-cv-569,
The instant matter presents a different scenario. In this case, neither party
suggests that there are material questions of fact that must be decided by a jury.
Instead, it is understood and undisputed that the question of whether or not the
Constitution empowers one of the branches of government “to act in a certain way is a
pure question of law[.]”
Ctr. for Biological Diversity v. McAleenan
, No. 18-cv-0655,
B. Common Law Adherence To Precedent
In addition to applying the Federal Rules of Civil Procedure, this Court also
relies on a basic juridical norm that is applicable to the legal issues presented in this
case. “Under the principles of the American system, common law jurisprudence serves
as the source of background legal principles for judicial interpretation.” Andrew C.
Spiropoulos,
Just Not Who We Are: A Critique of Common Law Constitutionalism
, 54
*27
Vill. L. Rev. 181, 183 (2009). In this regard, it is clear beyond cavil that judges should
“abide by former precedents, where the same points come again in litigation[.]” 1
William Blackstone, Commentaries *69;
see also Michigan v. Bay Mills Indian Cmty.
,
This “rule of adherence to judicial precedents finds its expression in the doctrine
of stare decisis[,]” which is Latin for “to stand by things decided.”
Stare Decisis
,
Black’s Law Dictionary (11th ed. 2019) (quotation marks and citation omitted). This
doctrine provides that, “‘when a point or principle of law has been once officially
decided or settled by the ruling of a competent court in a case in which it is directly and
necessarily involved,’” then that legal principle “‘will no longer be considered as open
to examination or to a new ruling by the same tribunal, or by those which are bound to
follow its adjudications, unless it be for urgent reasons and in exceptional cases.’”
Id.
(quoting William M. Lile et al., Brief Making and the Use of Law Books 321 (Roger W.
Cooley & Charles Lesley Ames eds., 3d ed. 1914));
see also Kimble v. Marvel Entm ’t,
LLC
,
It is interesting to note that the doctrine of stare decisis performs a limiting
function that reflects the foundational principles that undergird the federal
government’s tripartite constitutional system. This is because deciding a legal issue
anew each time that same question is presented, without any reference to what has been
done before, nudges a court outside of its established domain of “say[ing] what the law
is[,]”
Marbury
,
C. Subpoena-Related Rights, Duties, Privileges, And Immunities Finally, in analyzing the arguments and issues that have been presented in this case, this Court draws from the well-established substantive legal standards that pertain to subpoenas generally, both those that apply in the context of standard civil cases that involve the issuance of subpoenas by parties seeking information and also those that Housе committees issue in the course of congressional investigations. As it turns out, a general sense of such subpoena-related standards provides a helpful key to understanding many of this Court’s legal conclusions. For example, it is important to understand that subpoenas are creatures of law, that these instruments have particular legal significance, and that court orders are typically provided to enforce them. Such realizations shed substantial light on the reasons why this Court has rejected DOJ’s contentions regarding the subpoena dispute at bar.
In Latin, the term “subpoena” means “under penalty.”
Subpoena
, Black’s Law
Dictionary (11th ed. 2019). Simply put, a subpoena is a written mandate (also
sometimes known as “a writ”) that creates a legally enforceable procedural obligation to
produce or provide documents or testimony, and it does so through an appeal to some
authoritative body’s power to sanction noncompliance.
See
William Mark Ormrod,
The
Origins of the
Sub Pena
Writ
, 61 Hist. Research 11, 11, 16 (1988);
see also
Frederic W.
Maitland, Equity, also, the Forms of Action at Common Law 5 (1909) (noting that the
writ was so named “because it orders the man to appear upon pain of forfeiting a sum of
money,
e.g. subpoena centum librarum
”); Oliver Wendell Holmes,
Early English
*30
Equity
, 1 L. Quart. Rev. 162, 162 n.2 (1885) (noting that, at common law, the penalty
for failing to comply with a subpoena “was usually money, but might be life and
limb”).
[9]
To be properly issued, a subpoena must be imposed by an authorized person or
entity.
See
Arthur R. Miller, 9A Federal Practice and Procedure § 2451 (3d ed.). In
essence, one who has the authority to issue a subpoena possesses the right to obligate
another person to provide testimony and/or documents—i.e., the issuer can mandate the
performance of another with respect to the production of such information.
See
Universal Airline v. E. Air Lines
,
Consequently, a valid subpoena carries with it at least two legally recognized
rights: (1) the right to direct the performance of another with respect to the production
of documents and testimony, and (2) the right to enforce the performance obligation
that is so imposed. For his part, the recipient of a valid subpoena has a presumptive
duty to perform in accordance with the subpoena’s requirements.
See, e.g.
,
GFL
Advantage Fund, Ltd. v. Colkitt
,
1. Subpoenas In Standard Civil Actions In the typical civil case, an attorney acting on behalf of a party and as an officer of the court can secure information for use in an existing federal lawsuit by issuing a subpoena to the custodian of the records or to the person from whom testimony is sought. See Fed. R. Civ. P. 45. Although private parties ordinarily do not have the authority to mandate others’ performance, with respect to subpoenas the right to compel the recipient to provide documents and/or testimony derives from the Article III power of the court that is presiding over the underlying case. Indeed, the party issues its subpoenas in the name of the court, and typically does so after unsuccessful negotiations over a requested voluntary production. And, ultimately, whatever the status of the negotiations over the requested information, the party’s issuance of an enforceable subpoena triggers a legal duty on the part of the recipient to perform in accordance with the subpoena, by providing the requested testimony and/or materials.
These rights and duties operate as a matter of law—that is, in the ordinary
course, without a court’s intervention—during the pretrial, preparatory phase of a civil
case. A subpoena-enforcement legal action only becomes necessary if the recipient
refuses to provide documents or testimony despite having received a subpoena.
See
Fed. R. Civ. P. 45(g) (authorizing a court to hold in contempt “a person who, having
been served, fails without adequate excuse to obey the subpoena”). In that
circumstance, under the Federal Rules of Civil Procedure, the subpoena’s issuer can file
a separate civil lawsuit in the district court in which compliance has been mandated,
see, e.g.
,
Fairholme Funds
,
Significantly for present purposes, if a subpoena is valid and the recipient is not
otherwise privileged to ignore it, then
some
response is due by ordinary operation of the
law. Put another way, as explained above, a valid subpoena ordinarily gives rise to a
*33
legally enforceable duty to perform in the requested manner. And a court order is the
well-established mechanism for the enforcement of that obligation: if the court finds
that the recipient has breached the duty to perform that the subpoena creates, it issues
an order that compels the recipient to comply with the subpoena.
See, e.g.
,
In re
Denture Cream Prod. Liab. Litig
.,
It is also important to recognize that the question of whether or not the recipient
of a subpoena has to disclose, or may withhold, the
particular
information that the
subpoena requests is entirely distinct from the question of whether the recipient of a
subpoena has the legally enforceable duty to perform in response to a subpoena at all.
As a general matter, the disclosure-of-information issue will be determined by the court
based on its assessment of whether the documentary information that the subpoena
requests, or the answers to the particular questions that a subpoenaed witness will be
asked, can be withheld as subject to an applicable privilege, or whether the subpoena is
improper for other reasons, such as overbreadth or undue burden. In standard civil
cases, common law privileges such as the attorney-client privilege, the attorney work-
*34
product privilege, and the marital privilege are often invoked to withhold subpoenaed
information, and the privileged information is omitted from the testimony and/or
redacted from the documents at issue.
See, e.g.
,
BuzzFeed, Inc.
, 318 F. Supp. 3d at
361–62 (assessing whether information sought by subpoena was protected by the
federal law enforcement privilege);
GFL Advantage Fund
, 216 F.R.D. at 194–95
(evaluating whether subpoenaed materials were covered by the attorney-client
privilege);
Weiss
,
By contrast, it is relatively rare for the law to recognize an “immunity” to
compulsory legal process—i.e., the right of the recipient of a valid subpoena to decline
to produce
any
documents or provide
any
testimony. In effect, such an immunity is
enormously powerful, because it operates to nullify the legal obligation to perform that
a valid subpoena creates. The sole immunity to compulsory process that DOJ
specifically identifies in its briefs, outside of the instant context, is the Constitution’s
Speech and Debate Clause. (
See
Def’s Mot. at 68.) Article I provides that, with respect
to “any Speech or Debate in either House,” any U.S. Senator or Representative “shall
not be questioned in any other Place[.]” U.S. Const. art. I, § 6, cl. 1. The Supreme
Court has interpreted this provision to immunize members of Congress and their aides
from having to appear and to provide testimony regarding “anything generally done in a
*35
session of the House by one of its members in relation to the business before it.”
Gravel v. United States
,
2. Legislative Subpoenas Legislative subpoenas that are issued by congressional committees in the course
of investigations derive from the Article I authority of the Congress, rather than the
Article III auspices of the federal courts. It is reasonably clear that “legislative
subpoenas are older than our country itself[,]”
Trump v. Mazars USA, LLP
, 940 F.3d
710, 718 (D.C. Cir. 2019); moreover, and the power of committees of the House of
Representatives to conduct investigations that involve issuing subpoenas to witnesses
for documents and testimony is similarly well established,
see Watkins v. United States
,
It should come as no surprise that the rights and duties that attach when a duly
authorized committee of Congress issues a subpoena are ordinarily reverentially
observed, or that subpoena-backed requests for information to be provided to the House
in the context of its Article I investigations have traditionally been respected, consistent
with core democratic and constitutional norms.
See
,
e.g.
,
Mazars
,
That said, enforcement comes with the territory, as explained above. It is
generally accepted that the Legislature has at its disposal additional means of enforcing
its subpoenas as compared to those that are available to private parties who impose
duties to perform by issuing subpoenas in the context of civil cases.
See Eastland
, 421
U.S. at 504–05. Those additional tools include the power of inherent contempt.
See
Watkins
,
Notably, on those occasions when legislative subpoena disputes have been
brought to court, the related civil actions involve the same questions about relevance,
subpoena validity, the allegedly privileged nature of the material requested, and the
purported immunity of the recipient as courts consider in other cases of this kind.
See,
e.g.
,
Mazars
,
IV. ANALYSIS
In this case, the fact that duly authorized committees of Congress have the power to issue enforceable legislative subpoenas pursuant to Congress’s authority to conduct oversight investigations under Article I of the Constitution is not in dispute. That is, DOJ does not appear to challenge the Judiciary Committee ’s compulsory process power, as a general matter. Instead, here as in Miers , DOJ contends that, nevertheless, the President can selectively block any House committee’s exercise of its subpoena-related rights with respect to certain persons who qualify as the President’s “alter egos”— namely, current and former senior-level presidential aides—because, in DOJ’s view, such persons are absolutely immune from compelled congressional process. ( See, e.g. , Def.’s Mot. at 64.) DOJ argues further that House committees cannot file lawsuits in federal court to seek enforcement of subpoenas that have been issued to aides whom the President has ordered not to testify ( id. at 52–59), and that, in any event, the federal courts have no subject-matter jurisdiction to review any subpoena-enforcement action that a House committee files if a senior-level presidential aide does not respond as directed ( see id. at 31–52).
Setting aside the implications of these arguments for the law that governs subpoenas generally ( see supra Part III.C), it is important to recognize that DOJ’s contentions rely on basic assumptions about the relative power of the three branches of the federal government under our constitutional scheme. Indeed, as DOJ describes it, *40 the Constitution of the United States strictly segregates the power of the federal government and sets its branches in perfect equipoise—i.e., the Legislature, the Executive, and the Judiciary are entirely distinct, completely independent, and unfailingly co-equal (a dynamic that DOJ calls “the separation of powers”)—and this constitutional construct is such a driving force behind DOJ’s legal analysis that other foundational tenets of the Constitution, as well as the widely accepted common law principles that pertain to subpoenas and subpoena enforcement, are cast aside.
For example, notwithstanding the background fact that federal courts routinely adjudicate subpoena-related disputes in the context of civil actions, DOJ vigorously asserts that federal courts lack subject-matter jurisdiction to adjudicate subpoena- related disputes that arise between Congress and the Executive branch. ( See Hr’g Tr. at 75:17–18 (DOJ counsel asserting that the federal courts “absolutely have th[e] authority [to say what the law is] in any case or controversy under Article III” but “[t]his just isn’t one”).) DOJ also insists that, despite the fact that ordinary citizens bring subpoena-enforcement claims in the federal courts all the time, duly authorized committees of the House of Representatives cannot proceed against the Executive branch in court to seek enforcement of subpoenas for testimony and information issued to recalcitrant government officials in the context of congressional investigations. ( See id. at 74:5–7 (“I’m making the argument that the Constitution does not allow . . . the House and the Executive Branch to sue each other in court[.]”).) Meanwhile, says DOJ, the President has the authority to make unilateral determinations regarding whether he and his senior-level aides (both current and former) will respond to, or defy, the subpoenas that authorized House committees issue during constitutionally authorized *41 investigations of potential wrongdoing within his administration. ( See id. at 125:3–6 (counsel asserting that “if the person has testimonial immunity, and the President has asserted it, not the person—it’s the President’s to assert—then, yes, [Congress] wouldn’t be able to compel the person”). [11]
Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts, congressional committees, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC’s persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena- enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority—when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States—then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution’s framework as the Framers envisioned it is the *42 President’s purported power to kneecap House investigations of Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.
Luckily for this Court, an existing precedent that is on all fours with the instant matter ( Miers ) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President’s senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations; Miers does this by squarely refuting each of the threshold and merits arguments that DOJ seeks to advance in the instant case. This Court finds Miers ’s analysis compelling (albeit, admittedly, not controlling) and, consistent with stare decisis principles, the Court adopts Judge Bates’s precedential reasoning herein, where referenced in the discussion below. Consequently, the Court cannot accept DOJ’s present reliance on carefully curated rhetoric concerning historical accommodations practices. Nor can it abide DOJ’s less-than-subtle suggestion that, under our constitutional scheme, the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive branch, such that, ultimately, the President wields virtually unchecked power.
Instead, with deference to the Supreme Court’s foundational pronouncements of
law concerning the intended intersectionality of our separate and co-equal branches of
government,
see, e.g.
,
INS v. Chada
,
A. Federal Courts Have The Power To Adjudicate Subpoena-Related
Disputes Between Congress And The Executive Branch
In the
Miers
case, DOJ “concede[d]” that “28 U.S.C. § 1331 provides subject
matter jurisdiction” over the Judiciary Committee’s subpoena-enforcement lawsuit, a
conclusion with which Judge Bates agreed.
Miers
,
1. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over
Subpoena-Enforcement Claims Under 28 U.S.C. § 1331
Federal courts are courts of limited jurisdiction,
see Spokeo, Inc. v. Robins
, 136
S. Ct. 1540, 1547 (2016), which means that their power to adjudicate legal disputes
must be affirmatively established by law. As a general matter, under section 1331 of
Title 28 of the United States Code, federal courts have statutory authority to entertain
legal claims that arise under the Constitution and the laws of the United States.
See
*44
Arbaugh v. Y&H Corp
.,
This conclusion is not at all surprising. Indeed, if electronic searches of popular
case databases are any guide, the power of the federal courts to review and resolve
subpoena-enforcement claims in standard civil actions is rarely challenged, and federal
courts routinely exercise subject-matter jurisdiction over disputes concerning subpoenas
that arise in the context of cases in which federal claims are being litigated.
See, e.g.
,
Fairholme Funds
,
As a reminder, DOJ conceded as much in the matter before Judge Bates. It
retreats from that concession now, however, and launches an attack on this Court’s
statutory subject-matter jurisdiction, by deflecting attention away from the well-
accepted scope of a federal court’s authority under 28 U.S.C. § 1331 and homing in on
another statutory provision: 28 U.S.C. § 1365. Pointing to that statute, DOJ maintains
that the federal courts do not, in fact, have statutory subject-matter jurisdiction to
entertain subpoena-enforcement claims brought by committees of the House. (
See
Def.’s Mot. at 45–46 (asserting that section 1365 establishes federal court “jurisdiction
over some congressional subpoena-enforcement actions [i.e., those brought by the
Senate] but not others [i.e., those brought by the House]”).) It is interesting to note that
DOJ appears to have rejected OLC’s internal advice about the viability of this legal
argument, for it presses this jurisdictional contention here despite the fact that,
according to OLC, “[t]he legislative history of these statutes . . . counsels against th[e]
*46
conclusion” that section 1365 impacts the jurisdiction of federal courts to entertain
subpoena-enforcement lawsuits that involve subpoenas issued to Executive branch
officials.
Response to Cong. Requests for Info.
,
Regardless, another precedential opinion from this district (which concerned
whether a different House committee could sue to enforce a legislative subpoena for
documents that it had issued to the Attorney General) addressed precisely the same
statutory jurisdictional argument that DOJ brings here, and unequivocally rejected it.
See Holder
,
This Court agrees with Judge Berman Jackson’s analysis in this regard, and sees
no reason to reach a contrary conclusion. Indeed, “redundancies across statutes[,]”
jurisdictional or otherwise, “are not unusual events in drafting[,]” and the Supreme
Court has commanded that, in such circumstances, a court “must give effect to both”
provisions provided that “there is no ‘positive repugnancy’ between the two laws[.]”
Conn. Nat’l Bank v. Germain
,
2. Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute DOJ’s primary reason for insisting that the federal courts lack subject-matter jurisdiction to review the Judiciary Committee’s subpoena-enforcement claim relates to its views of the Constitution’s limits on the exercise of judicial authority. In its briefs, DOJ asserts repeatedly, in various ways and at different points, that it is the Constitution’s separation-of-powers principles that preclude this Court’s consideration of the instant subpoena-enforcement lawsuit. ( See, e.g ., Def.’s Mot. at 18–23.) And while it is difficult to ferret out the differences between the various separation-of- powers-related arguments that DOJ makes in this regard, it appears that this battle is being waged on two related fronts. First of all, DOJ insists that “[t]his dispute is not of the type traditionally thought capable of resolution through the judicial process[.]” (Def.’s Mot. at 32 (capitalization altered).) It further maintains that “[l]awsuits of this kind imperil the Constitution’s allocation of power among the Branches of the Federal Government.” ( Id. at 40.) [12]
Boiled to bare essence, and much like the absolute testimonial immunity claim
that DOJ makes with respect to the merits of the Judiciary Committee’s case, these
threshold contentions about the limited scope of the Judiciary’s power to hear the claim
*49
at issue under the Constitution are based on “the Executive’s interest in ‘autonomy[,]’”
Miers
,
a.
The legal claim at issue here is not non-justiciable
The first of DOJ’s assertions has the subtle overtones of a justiciability
argument. For example, DOJ suggests that what is at issue when the other two branches
of government look to the Judiciary to resolve inter-branch disputes over the
enforceability of a subpoena is a “‘political turf war’” (Def.’s Mot. at 32 (quoting
U.S.
House of Representatives v. Mnuchin
,
Consider the particular claim that the Judiciary Committee makes in the instant
action. Its complaint specifically alleges that, in the course of a congressional
investigation, the Committee issued a duly authorized legislative subpoena to former
White House Counsel Donald F. McGahn II pursuant to its Article I powers (Compl.
¶ 72), and that “[t]here is no lawful basis for McGahn’s refusal to appear” (
id
. ¶ 110).
Thus, the Judiciary Committee’s pleading presents pure questions of law for the Court’s
resolution: in essence, the Committee is asking this Court to determine what the law
establishes with respect to its right to compel McGahn’s testimony per the subpoena it
has issued, and also what the law says about his duty to respond, as the recipient of the
Committee’s directive. There is nothing non-justiciable about such legal questions.
Indeed, federal courts across the country address these very inquiries in the context of
enforcement actions involving private parties all the time. (
See supra
Part III.C.1.)
DOJ’s talk of “pоlitical turf war[s]” and its soaring protestations about the Committee’s
claim being not “capable of judicial resolution” (Def.’s Mot. at 32–33) obscure the fact
that issues such as whether a particular subpoena is valid and enforceable, and whether
and to what extent the recipient of such a subpoena has a legal duty to respond, are
straightforward, fully justiciable questions of law.
See Miers
,
Notably, the mere fact that a committee of Congress, as opposed to some other
litigant, has brought the instant subpoena-enforcement claim at bar has nothing
whatsoever to do with whether this Court has subject-matter jurisdiction to entertain it.
In general, federal courts assess their subject-matter jurisdiction on the basis of the
*51
claims that are presented, not on the identity of the parties.
See Freedom from Religion
Found., Inc. v. Geithner
,
The veritable death-knell with respect to DOJ’s present non-justiciability
suggestions is the D.C. Circuit’s jurisdictional analysis in
AT & T I
, a case that
*52
involved a “clash of the powers of the legislative and executive branches of the United
States” under circumstances that are not dissimilar to the subpoena-enforcement
conflict at issue here.
[13]
AT & T I
,
b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process Pivoting to the second variation of their separation-of-powers argument, DOJ calls upon history and asserts that “centuries of historical practice” ( id. at 32) plainly demonstrates that the U.S. Constitution does not contemplate that the federal courts have the power to exercise jurisdiction over subpoena- rеlated disputes between the Congress and the Executive branch. ( See id. at 33 (interpreting Raines v. Byrd , 521 U.S. 811 (1997), as having established that “[t]he fact that past Congresses never resorted to the courts to resolve these and other inter-branch disputes underscored that the suit was not one traditionally thought to be capable of resolution through the judicial process.” (internal quotation marks omitted)).) While it appears to be true that “for two hundred years after the Founding” lawsuits between the Congress and the Executive branch “did not exist, even though disputes between the Legislative and Executive Branches over congressional requests for information have arisen since the beginning of the Republic” ( id. at 33), the jurisdictional lesson that DOJ appears to *54 have learned from the historical record seems to be at odds with the Supreme Court’s own recounting of the relevant facts.
In the case of
Watkins v. United States
,
Significantly for present purposes, Chief Justice Warren takes care to emphasize
that, “[i]n the early days of the United States, there lingered direct knowledge of the
evil effects of absolute power[,]”
id.
at 192, and thus, “
[f]rom the very outset the use of
contempt power by the legislature was deemed subject to judicial review
[,]”
id
.
(emphasis added). This is a much different narrative about the historical understanding
of the ability of the courts to entertain claims concerning the enforceability of a
legislative subpoena than DOJ offers here. And the Court’s acknowledgement that
DOJ’s particular argument is that the federal courts do not have subject-matter
jurisdiction to adjudicate a dispute over a legislative subpoena
at Congress’ behest
, and
that it has not made direct representations about whether the federal courts historically
*55
entertained claims that
private citizens
brought to challenge compelled congressional
process, does not diminish that divergence. Regardless, the historical record plainly
reflects that, since the Revolution, judicial review has been available to ensure that the
use of compulsory congressional process and/or the invocation of a privilege with
respect to compelled performance is consistent with the law.
See id
. at 193–94
(discussing
Kilbourne v. Thompson
,
Consequently, DOJ’s present suggestion that the history of our constitutional Republic simply does not contemplate that the other branches of government would *56 enlist the Judiciary to resolve disputes over the scope of compelled congressional process in the context of legislative investigations—and thus that a federal court oversteps its bounds if it exercises subject-matter jurisdiction over a claim like the one the Judiciary Committee brings here ( see Def.’s Mot. at 32–36)—seems inconsistent with Watkins ’s clear assessment that the federal courts of the United States have always had to power to review legal claims with respect to subpoena-enforcement actions, and once again, it is well established that subject-matter jurisdiction generally turns on the legal claim being asserted regardless of who makes it. Indeed, the Watkins Court specifically noted that federal courts possess a “responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly[,]” id . at 198–99, while at the same time, they must take care to provide “ample scope . . . to the Congress as the sole constitutional depository of legislative power[,]” id. at 215; see also, e.g. , id . at 216. And DOJ does not, and apparently cannot, explain why this constitutional duty disappears, or is neutralized, if the subpoena-related dispute arises between branches of government, rather than between Congress and an individual party who contends that the Legislature’s compelled congressional process is unlawful.
Watkins
also seems to explain the dearth of cases during the two -century period
in which DOJ says that lawsuits concerning “Congress’ access to information held by
the Executive Branch . . . did not exist[.]” (Def.’s Mot. at 33.) DOJ lays out a
chronology of recorded conflicts between Presidents and the House of Representatives
with respect to Congress’s access to information between 1792 and 2008 (
see
Def.’s
*57
Mot. at 33–35), and because “for nearly two hundred years the Legislative Branch never
sought to invoke the power of the Judiciary to decide which side should prevail in a
political battle with the Executive” concerning congressional requests for information
(
id.
at 35), DOJ implies that courts must have had the view that their power to
adjudicate legal disputes between the branches was unauthorized. It might well be so
that courts were not engaged in resolving such conflicts. But
Watkins
suggests a
different implication: Congress “so sparingly employed the power to conduct
investigations, . . . [that] there [were] few cases
requiring
judicial review of the
power.”
Watkins
,
To be sure, there was an uptick in Congress’ use of its investigative power in the
late nineteenth century, and yet, as DOJ emphasizes, “there were [still] very few cases
dealing with the investigative power.”
Id
. at 194. But that dearth of court decisions
hardly establishes that “zero-sum litigation in federal court” had been categorically
ruled out as a matter of constitutional law, as DOJ suggests. (Def.’s Mot. at 36.) It is
just as logical, and perhaps even more so, to conclude that the Executive branch
understood from prior case law the slim odds of successfully resisting the primary tool
that the Congress had to check its abuses—a subpoena issued in the context of an
authorized investigation—if its challenges were litigated in federal court, and thus, it
routinely consented to negotiate the terms of its performance. As the Supreme Court
suggested in
Watkins
, even early on in the history of our Nation, there were “several
basic premises on which there [was] general agreement” including the fact that “[t]he
power of the Congress to conduct investigations is inherent in the legislative process”
and that “[t]hat power is broad.”
Watkins
,
Consequently, and somewhat ironically, DOJ’s main historical assertions dovetail in a manner that ultimately counteracts its own conclusions. That is, “[t]he fact that past Congresses never resorted to the courts to resolve” to inter-branch disputes concerning the congressional requests for information (Def.’s Mot. at 33) merely means that, unlike the Judiciary Committee of today, they did not have to, because instead of reaching an impasse over the Executive branch’s rank refusal to cooperate with congressional investigations, the Executive branch’s concerns about the scope and intrusiveness of Congress’ requests for information were resolved through “the centuries-old process of political negotiation” ( id. at 36). See also Mazars , 940 F.3d at 721 (explaining that “Presidents, too, have often been the subjects of Congress’s legislative interventions,” but, in contrast to disputes between House committees and *59 private-citizen recipients of legislative subpoenas, “fewer of these have required judicial intervention”).
Finally, this Court notes that DOJ’s contention that the Constitution’s separation of powers bars the judiciary from adjudicating disputes between Congress and the Executive concerning the enforceability of legislative subpoenas is an argument that it has not consistently maintained, even in modern times. For example, a review of the publicly available dockets in Trump v. Committee on Ways & Means, U.S. House of Representatives , No. 19-cv-2173 (Nichols, J.), Trump v. Comm ittee on Oversight & Reform of U.S. House of Representatives , No. 19-cv-1136 (Mehta, J.), and Trump v. Mazars USA, LLP , No. 19-5142 (D.C. Cir.), indicates that DOJ stood silent with respect to the jurisdictional question, as President Trump (in his personal capacity) has invoked the authority of the federal courts, on more than one occasion, seeking resolution of a dispute over the enforceability of a legislative subpoena concerning his tax returns. A lawsuit that asserts that a legislative subpoena should be quashed as unlawful is merely the flip side of a lawsuit that argues that a legislative subpoena should be enforced . And it is either DOJ’s position that the federal courts have jurisdiction to review such subpoena-enforcement claims or that they do not. By arguing vigorously here that the federal courts have no subject-matter jurisdiction to entertain the Judiciary Committee’s subpoena-enforcement action, yet taking no position on the jurisdictional basis for the President’s maintenance of lawsuits to prevent Congress from accessing his personal records by legislative subpoena, DOJ implicitly suggests that (much like absolute *60 testimonial immunity) the subject-matter jurisdiction of the federal courts is properly invoked only at the pleasure of the President. [15]
The fact that DOJ has also recently expressly declined to press a jurisdictional
argument in another subpoena-enforcement case that is currently pending before the
D.C. Circuit is instructive.
See In re Application of Comm. on Judiciary, U.S. House of
Representatives, for an Order Authorizing Release of Certain Grand Jury Materials
,
No. 19-gj-48,
During oral argument, when one of the panelists asked DOJ about the district
court’s subject-matter jurisdiction to entertain the House’s legal action, DOJ counsel
remarked that, while the Executive branch was “not advancing that argument[,]” it
believed that DOJ “certainly has both standing and jurisdiction” to seek review of the
district court’s injunction. Hr’g Tr. at 17:5–9,
In re Application of Comm. on Judiciary,
U.S. House of Representatives, for an Order Authorizing Release of Certain Grand Jury
Materials
, No. 19-5288 (D.C. Cir.). And, indeed, DOJ did not challenge Chief Judge
Howell’s jurisdiction to consider the House’s application in any of its briefs or during
any of the hearings in front of either the District Court or the Circuit. But if DOJ’s
position is that the federal courts have the authority to entertain a legal claim
concerning the House’s contested request for allegedly privileged grand jury materials,
how can it be heard to argue, nearly simultaneously, that the instant Court has no
jurisdiction to entertain a legal claim concerning the enforceability of a House
committee’s subpoena compelling the testimony of senior-level presidential aides?
Both of these requests for information were made by the Judiciary Committee in the
context of ongoing investigations.
Compare
DOJ Stay Br. at 10,
with In re Application
for Grand Jury Materials
,
c.
Traditional separation-of-powers principles do not support
DOJ’s suggestion that the federal courts cannot resolve
legal disputes between the other branches of government
If the point of DOJ’s historical practice arguments is to emphasize that, for
centuries, significant inter-branch conflicts have, in fact, been resolved without the
need for court involvement (and thereby place its marker on the seemingly radical
notion that the federal courts do not have the constitutional authority to resolve
any
direct dispute between the Executive and the Legislature (
see, e.g
., Hr’g Tr. at 60:18)),
then DOJ must contend with, and somehow reconcile, the fact that the federal courts
have adjudicated disputes that impact the divergent interests of the other branches of
government for centuries.
See, e.g.
,
Ex parte Merryman
,
To the contrary, the Framers spoke specifically to the importance of maintaining an established rule of law to regulate government conduct—and, thus, to the significance of the judicial function—when they explained why a system that separates the powers of government and includes checks on the exercise of government power is crucial to sustaining a democracy:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in thе next place oblige it to control itself.
The Federalist No. 51 (James Madison). The Framer’s specific reference to providing government officials in each of the separate branches with “the necessary constitutional means and personal motives to resist the encroachments of the others[,]” id. , is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See *65 id. (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”).
Nor is it the case that the separate and co-equal stature of the three branches of
government means that the Judiciary cannot comment on the lawfulness of other
branches’ conduct.
Cf. Ex parte Merryman
,
To the extent that more recent case law could be read to cast doubt on this
Court’s conclusion that the federal courts have the constitutional power to adjudicate
legal disputes between the Legislature and the Executive branch (
see
Def. Mem. at 32–
36), it is worth noting that such cases actually comport quite well with the Framers’
conceptions of the true separation-of-powers problems discussed above. For example,
binding case law rightly indicates that federal courts do overstep the bounds of their
authority if they entertain a claim in a dispute between the other branches that does not
actually involve a question of law.
See Zivotosfy
,
The bottom line is this: even when the question of this Court’s constitutional
authority to entertain the Judiciary Committee’s subpoena-enforcement claim is viewed
through the rose-colored lenses of DOJ’s separation-of-powers filter, history and past
practice plainly support judicial resolution of stalemates between the Legislature and
the Executive branch with respect to the rights that the law establishes and the duties
that the law imposes. The Framers carefully crafted a constitutional scheme that
contained institutional checks over the exercise of the powers they had divided, and
thus implicitly endorsed the exercise of authority by the branch that was vested with
power to break a legal stalemate (and, indeed, without judicial resolution, how else
*68
would an impasse between the Legislature and Executive branch concerning compelled
congressional process be resolved?). Thus, in this Court’s view, rather than demanding
forbearance by the courts, separation-of-powers principles instead require the federal
courts to proceed to resolve the instant legal impasse so that the other branches of
government can function. Put another way, the Framers made clear that the proper
functioning of a federal government that is consistent with the preservation of
constitutional rights hinges just as much on the intersectionality of the branches as it
does on their separation, and it is the assigned role of the Judiciary to exercise the
adjudicatory power prescribed to them under the Constitution’s framework to address
the disputed legal issues that are spawned from the resulting friction.
See Myers v.
United States
,
B. House Committees Have The Power To Enforce Their Subpoenas In Federal Court When Executive Branch Officials Do Not Respond As Required
For all its talk about the limited authority of the Judiciary and the Legislature under the Constitution, DOJ does not appear to contest the fact that duly authorized committees of Congress have the power under Article I to issue enforceable legislative subpoenas—in the sense that, when a House committee issues an authorized legislative subpoena in the context of a congressional investigation, that act gives rise to a legal *69 right to compel the recipient’s performance. [18] Consequently, and importantly, the constitutional arguments that DOJ has made in the context of this case pertain solely to its view that the Judiciary Committee lacks the authority to enforce its valid legislative subpoenas in federal court . ( See, e.g ., Def.’s Mot. at 36–40, 52–56.) Here, as in Miers , DOJ attempts to shoehorn its emasculating effort to keep House committees from turning to the courts as a means of vindicating their constitutional interests into various categories of established legal arguments, some of which overlap substantially with jurisdictional contentions that the Court has already considered and rejected. ( See, e.g. , id. at 36–40 (arguing that the Judiciary Committee lacks standing because it has not articulated a concrete and particularized injury).)
In the discussion that follows, this Court focuses, in particular, on DOJ’s contention that a House committee does not suffer a cognizable injury for standing purposes when a subpoenaed Executive branch official fails to appear for the scheduled testimony ( id . at 36–40), and that, in any event, such committee has no cause of action to proceed in federal court ( id. at 52–56). As the Court explains, these arguments about the Judiciary Committee’s inability to bring its legal claims in federal court cannot be reconciled with how the law ordinarily assesses the type of injury that the Judiciary Committee alleges for standing purposes, or with the fact that filing a lawsuit is the most common, and least intrusive, means of vindicating the Committee’s thwarted investigation rights. The Court also rejects DOJ’s broader assertion that, even if the Judiciary Committee has an injury in fact and a cause of action to proceed in federal *70 court, constitutional separation-of-powers principles prevent the Committee from doing so.
1. Defiance Of A Valid Subpoena Indisputably Qualifies As A
Cognizable Injury In Fact, And In The Context Of Congressional
Investigations, The Harm Is Significant And Substantial
With respect to the Judiciary Committee’s alleged lack of Article III standing to
bring its subpoena-enforcement claims in federal court, DOJ maintains that “the
Committee fails to state a cognizable injury[.]” (Def.’s Mot. at 36.)
[19]
In this regard,
DOJ insists that the Committee’s allegation that “McGahn’s failure to comply with its
subpoena for his testimony deprives it of ‘information to which it is entitled’” is not
enough to give rise to Article III standing (
id.
at 37 (quoting Pl.’s Mem. at 22, 37)),
because “Congress has no cognizable institutional interest in obtaining information for
its own sake” (
id
.). It also asserts that, other than this non-cognizable “freestanding
right to information[,]” the Judiciary Committee has only asserted the kinds of abstract
injuries that the Supreme Court has found to be insufficient to support standing in cases
like
Raines v. Byrd
,
The first puzzle that surfaces when one undertakes to assess DOJ’s “no cognizable injury” argument is how this contention accounts for the fact that an injury- in-fact for Article III standing purposes is all but assumed in the myriad subpoena- enforcement cases that are filed in federal courts with respect to civil actions every day. The harm claimed by a private litigant when his subpoenas are rebuffed, which almost presumptively provides a sufficient stake to support his standing, and the injury that the Judiciary Committee claims here is not different in kind. Yet this Court could not find a single case in which the concreteness or particularity of the injury alleged by a private subpoena issuer was effectively challenged. As far as this Court can tell, no federal judge has ever held that defiance of a valid subpoena does not amount to a concrete and particularized injury in fact; inde ed, it appears that no court has ever even considered this proposition. And perhaps for good reason: if defiance of duly issued subpoenas does not create Article III standing and does not open the doors of the court for enforcement purposes, it is hard to see how the wheels of our system of civil and criminal justice could keep turning.
Consequently, some courts have concluded that even the simple impairment of a
prosecutor’s right to issue a subpoena in the first place is enough to cause a cognizable
injury.
See, e.g.
,
United States v. Colo. Supreme Court
,
This is not to suggest an equivalence between the harm that a private litigant
experiences when his subpoena rights are thwarted, on the one hand, and the harm
inflicted on a committee of Congress when a recipient of a legislative subpoena that is
issued in the context of a congressional investigation defies its mandates, on the other.
While the
nature
of the injury—i.e., the denial of the right to compel performance—is
*73
similarly actual and concrete, the Supreme Court has suggested that the
degree
of harm
is an order of magnitude different. This is because, under our constitutional scheme,
the Legislature is empowered to issue subpoenas in order to conduct the investigations
that are necessary to perform its crucial functions of enacting legislation and overseeing
the operations of government, not to further its own private interests.
See Watkins
, 354
U.S. at 187, 200. In this regard, the Supreme Court has long held that Congress
must
be
deemed to “possess[] every other power essential to preserve the departments and
institutions of the general government from impairment or destruction, whether
threatened by force or by corruption.”
Burroughs v. United States
,
Thus, Article I to the House of Representatives assigns the “sole Power of
Impeachment”, U.S. Const. art. I, § 2, cl. 5, and it also vests Congress as a whole with
“[a]ll legislative Powers,” U.S. Const. art. I, § 1. Moreover, it grants to Congress the
“power of inquiry[,]”
McGrain
,
The law also plainly establishes that one of these means of compulsion—known
as “the subpoena power”—“may be exercised by a committee acting . . . on behalf of
one of the Houses.”
Id.
at 505.
[20]
And with respect to the duty that a recipient of such a
subpoena has to perform as Congress has demanded, the Supreme Court has specifically
noted that “[a] subpoena has never been treated as an invitation to a game of hare and
hounds, in which the witness must testify only if cornered at the end of the chase.”
Bryan
,
For present purposes, all this means is that, when a committee of Congress seeks testimony and records by issuing a valid subpoena in the context of a duly authorized investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its own interest, but for the benefit of the People of the United States. If there is fraud or abuse or waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and, as necessary, take corrective action. Conducting investigations is the means that Congress uses to carry out that constitutional *75 obligation. Thus, blatant defiance of Congress’ centuries-old power to compel the performance of witnesses is not an abstract injury, nor is it a mere banal insult to our democracy. It is an affront to the mechanism for curbing abuses of power that the Framers carefully crafted for our protection, and, thereby, recalcitrant witnesses actually undermine the broader interests of the People of the United States. Thus, DOJ’s hand-waving over the Judiciary Committee’s purported failure to establish a “cognizable” injury for standing purposes (Def.’s Mot. at 36–40) masks the substantial harm that results from an Executive branch official’s defiance of a congressional subpoena. But it is hard to imagine a more significant wound than such alleged interference with Congress’ ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States.
Here, the Judiciary Committee has filed a complaint that alleges that the Committee was dutifully attempting to fulfill its constitutional duties when it issued a subpoena to former White House Counsel Donald F. McGahn II. ( See, e.g. , Compl. ¶ 1.) According to the Committee, it opened an investigation into potential misconduct by President Trump and his associates on March 4, 2019 ( see id. ¶ 57), and its investigation allegedly took on a new dimension after Special Counsel Robert Mueller issued his report. [21] The Judiciary Committee further alleges that it has not been able to *76 complete its mission of getting to the bottom of the facts and circumstances that are chronicled in the Mueller Report, partly because McGahn “is the most important fact witness in the [Committee’s] consideration of whether to recommend articles of impeachment and its related investigation of misconduct by the President, including acts of obstruction of justice described in the Special Counsel’s Report” ( id . ¶ 97), and McGahn has refused to appear before the Committee to provide his testimony, at President Trump’s direction ( see id . ¶¶ 1, 7.) Consequently, the Committee requests that this Court “declare that McGahn’s refusal to appear before the Committee in response to the subpoena issued to him” is unlawful, and that it “issue an injunction requiring McGahn to appear forthwith before the Committee[.]” (Compl. at 53.)
With respect to its evaluation of the sufficiency of the Judiciary Committee’s
injury allegations, this Court must accept these statements of fact as true.
See Lujan
,
undertaken an investigation to evaluate the Report’s claims ( see Def.’s Resp. to Pl.’s Stmt. of Facts, ¶¶ 6–68, 75–76).
Moreover, for the purpose of determining whether the J udiciary Committee has alleged a sufficient injury-in-fact to generate a concrete interest in the outcome of this litigation, it is irrelevant that the Committee already has access to many, if not all, of McGahn’s sworn statements on this issue (McGahn’s interviews are referenced repeatedly in the text of the Mueller Report ( see Compl. ¶¶ 34–51)), nor does it matter that the Committee might be able to find out what it seeks to get from McGahn in some other fashion ( see, e.g. , Def.’s Mot. at 79–80). This is because, as a committee of Congress, the Judiciary Committee has the “broad power” under Article I of the Constitution to conduct its investigations however it sees fit, so long as it does not impinge upon the constitutional rights of those it undertakes to question. Watkins , 354 U.S. at 198–99. And, here, the Committee avers that, among other things, it wants McGahn to appear in person to testify about the events in question so that the Committee can evaluate his credibility. ( See Pl.’s Mem. at 27 (asserting that “McGahn’s testimony is particularly important because, even as President Trump has directed McGahn to defy the Committee’s subpoena, the President has waged an extensive campaign to discredit the Special Counsel’s investigation, impugn McGahn’s credibility, and deny McGahn’s account of the facts” (citation omitted); see also id. 27– 28; Pl.’s Reply at 60; Hr’g Tr. at 10:21–11:17.) What matters from the standрoint of evaluating the Committee’s Article III standing is that the Judiciary Committee has alleged an actual and concrete injury to its right to compel information (like any other similarly situated subpoena-issuing plaintiff), that is traceable to McGahn’s defiance at *78 the Executive branch’s behest, and that this alleged violation of its interests is fully redressable by an order of this Court that requires McGahn to appear and testify.
Of course, to describe the grave injury that defiance of congressional subpoena
inflicts on a committee of Congress (and, by extension, on the People of the United
States) is to demonstrate why DOJ’s reliance on the
Raines
case is misplaced. (
See
Def.’s Mot. at 36–40.) In
Raines,
six members of Congress who had voted against the
Line Item Veto Act filed suit seeking a declaratory judgment that the Act, which was
enacted and signed into law, was unconstitutional.
Raines
,
2. The Constitution Itself Provides A Cause Of Action For A Thwarted House Committee To Proceed In Federal Court The next purported barrier to the Judiciary Committee’s ability to enforce its subpoenas by filing a legal action in federal court is DOJ’s suggestion that the Judiciary Committee lacks a cause of action to do so. It is clear that all litigants who bring their claims to federal court for review must have a right to be there. In this regard, DOJ asserts that, unlike the Federal Rules of Civil Procedure that expressly authorize a person with a pending case to initiate a separate action in the district where compliance with a subpoena is required, see Fed. R. Civ. P. 45(g), there is no such provision with respect to the enforcement of legislative subpoenas. (Def.’s Mot. at 43.)
This argument is unavailing because, as Judge Bates recognized in
Miers
, Article
I of the Constitution is all the cause that a committee of Congress needs to seek a
judicial declaration from the court regarding the validity and enforceability of a
subpoena that it has allegedly issued in furtherance of its constitutional power of
inquiry.
Miers
,
Importantly, the Supreme Court’s analysis of the Legislature’s Article I
investigative power confirms that a committee of Congress’s right to enforce its
subpoenas is
intrinsic
to its constitutional authority to conduct investigations in the first
place. In
McGrain v. Daugherty
,
Past precedents also dispose of DOJ’s contention that just because Article I does
not expressly mention the right of a committee of Congrеss to enforce its subpoena
power in court means that the courts are now
implying
that the Constitution contains
*81
such right in a manner that contravenes what the Supreme Court has said about implied
causes of action. The Constitution also does not explicitly convey to Congress the
specific right to conduct investigations (i.e., what the Supreme Court calls “the power
of inquiry”), and yet, the Supreme Court found that such power is intrinsic to the
“legislative Power” that Article I expressly conveys to Congress.
Anderson v. Dunn
, 19
U.S. 204, 230 (1821). So it is here. As explained in
Anderson v. Dunn
, “[t]here is not
in the whole of [the Constitution], a grant of powers which does not draw after it others,
not expressed, but vital to their exercise[.]”
id.
at 225–26. And in light of
McGrain
’s
conclusion (repeated here for emphasis) that “the power of inquiry—with process to
enforce it—is an essential and appropriate auxiliary to the legislative function[,]”
McGrain
,
If Congress does somehow need a statute to authorize it to file a lawsuit to
enforce its subpoenas in vindication of its thwarted constitutional rights (for the reasons
explained above, it does not), then the Declaratory Judgment Act plainly serves that
purpose, as both Judge Bates and Judge Amy Berman Jackson have previously found, in
parallel contexts.
See Miers
,
3. There Is No Separation-Of-Powers Impediment To The Judiciary Committee’s Seeking To Vindicate Its Rights In Federal Court DOJ’s final argument as to why a duly authorized committee of the House of Representatives cannot be permitted to file a subpoena-enforcement lawsuit in federal court, even though ordinary civil litigants generally have unfettered access to the federal courts for this purpose, relies on a reassertion of constitutional separation-of- powers principles. ( See Def.’s Mot. at 40–43.) Judge Bates soundly rejected DOJ’s separation-of-powers-based lack of standing arguments in Miers . See Miers , 558 F. Supp. 3d at 95–99. This Court further addresses most of the conceptual problems with DOJ’s arguments restricting the power of the courts to review a claim brought by a House committee against the Executive branch elsewhere in this Memorandum Opinion. ( See supra Part IV.A.2.) In this section, the Court homes in on the obvious red flag that immediately appears with respect to even the most cursory review of DOJ’s arguments regarding the constitutional limits of a House committee’s subpoena-enforcement authority: the lack of any reason why the Constitution should be construed to command, or even countenance, this result, especially when other subpoena issuers routinely enlist the aid of the federal courts with respect to enforcing their mandates. ( See Hr’g Tr. at 57:14–59:12.)
Apparently undisturbed by the manifest inequity of treating a committee of
Congress less favorably than a litigating private citizen when it comes to identifying the
appropriate mechanisms for the vindication of established legal rights, DOJ’s brief
*84
ignores this problem entirely. And when asked about it during the motions hearing (
see
Hr’g Tr. at 57:20–25 (Court noting that “people can issue subpoenas and they can also
come to cоurt if the person who receives the subpoena doesn’t provide the information
that they say they are seeking to compel,” and then asking, “why is the House worse
off?”)), DOJ’s counsel responded, first, that “the House has never bothered to pass a
statute giving it the authority to do any of this” (
id
. at 58:10–11), and, second, that “the
House doesn’t execute the laws” (
id
. at 59:1). The first response is of no moment, since
the power to investigate and to issue subpoenas is vested in the House of
Representatives by the Constitution itself (
see supra
Part IV.B.2), and thus the
Judiciary Committee does not
need
a statute to have the authority to act in vindication
of its constitutional interests. The second point is likewise unavailing, because no one
reasonably claims that a private individual who is seeking to have its subpoenas
enforced in court is executing laws.
See Clinton v. Jones
,
DOJ does little else to address this Court’s concerns about the implications of its argument that the Constitution requires the Judiciary Committee to go it alone with respect to seeking to have its subpoenas enforced, and thus, unlike other civil litigants, it cannot seek a court enforcement order. Nevertheless, DOJ is undaunted, and it seems to float three arguments concerning this issue. DOJ says (1) that the Judiciary Committee is not disadvantaged because it has other non-court options for enforcing its *85 subpoenas ( see Def.’s Mem. at 41–42); (2) that, regardless, history establishes that the Committee does not have the right to sue in court ( see id. at 32–36); and (3) that there is persuasive and precedential case law in this district that holds that a House committee has no standing to sue the Executive branch ( see id. at 39.) For the following reasons, none of these arguments persuades this Court to conclude that the Judiciary Committee cannot proceed to press the legal claims it has brought in this lawsuit.
First of all, the fact that the Judiciary Committee has “several political arrows in
its quiver to counter perceived threats to its sphere of power[,]”
Mnuchin
, 379 F. Supp.
3d at 22—including, apparently, the manipulation of its appropriations power to starve
the Executive branch of resources as a sanction for contempt (
see
Def. Mem. at 42;
see
also
Hr’g Tr. at 65:17–20)—and, therefore, “this lawsuit is not a last resort for the
House[,]”
Mnuchin
,
What is more, DOJ’s suggestion that a thwarted House committee must eschew the courts and, instead, must rely on its “power to withhold appropriations” in order “to get the information that it needs” (Hr’g Tr. at 65:18–20) is nearly a practical nullity, because an appropriations sanction for non-compliance with a legislative subpoena cannot be implemented swiftly enough to preserve the utility of a defiant witness’s testimony, and it also cannot be achieved without the cooperation of the entire Congress as well as the President whom the Judiciary Committee is investigating and whose allegedly unlawful directive to his senior-level aides is the impetus for the Committee’s legal claims. It is also quite clear that if the House attempts an appropriations penalty, or if it utilizes its sometimes-mentioned inherent power to send the Sergeant at Arms to arrest the contemptuous official, those “political arrows” are far more likely to raise legitimate separation-of-powers concerns than allowing the Judiciary Committee to file a civil action in federal court.
DOJ’s second contention fares no better. As the Court explained above, the fact that there are few recorded instances in the history of our Nation in which Congress has filed a legal claim against the Executive branch in court to enforce its subpoena rights ( see Def.’s Mot. at 34–35), goes to show, at most, that the Legislature has rarely needed such assistance ( see supra Part IV. A.2.b). It says nothing about whether the Judiciary Committee can avail itself of the opportunity to file a legal action against the Executive *87 branch to protect against alleged transgressions of its Article I power of inquiry, consistent with well-established constitutional principles. And, again, DOJ has not offered a single case in which a binding authority has embraced the proposition that, under the Constitution, the House has no standing to proceed again the Executive branch in federal court despite its satisfaction of the well-worn requirements of a cognizable injury-in-fact that is redressable in the court. ( See supra n.19.)
The only case that DOJ has offered that appears to provide direct support of this
dubious legal proposition is a recent case from this district in which the court concluded
that the House lacked standing to proceed in court with respect to its claim that the
President’s declaration of a national emergency to procure funding for the border wall
violated the Appropriations Clause of the Constitution and the Administrative
Procedures Act.
See Mnuchin
,
Here is why. The assertion that historical practice alone compels the conclusion
that a dispute between the Executive branch and the Legislature is non -justiciable
appears to rest on the Supreme Court’s redressability reminder in
Raines
that a legally
cognizable injury for standing purposes is an injury that has been “traditionally thought
to be capable of resolution through the judicial process.” (
See
Def.’s Mem. at 33
(quoting
Raines
,
This Court also notes, as a general matter, that the utility of history depends on
an assumption that the terms and conditions of the “battle” between the political
branches
now
are the same as those that gave rise to similar disputes
in the past
.
However, we are at a point in history in which the Executive branch appears to be
categorically rejecting once-accepted and standard applications of Legislative and
Judicial branch authority; therefore, federal courts are being called upon to evaluate
novel exercises of Executive power that allegedly threaten the prerogatives of the other
branches of government in unique ways.
See, e.g
., Def.’s Mem. in Opp’n to the Mot.
for Prelim. Inj.,
Make the Road N.Y. v. McAleenan
, No. 19-cv-2369 (D.D.C.), at 75
(characterizing the statutorily required remedy for a procedural violation of the
Administrative Procedure Act as a “nationwide injunction” and, having done so,
arguing that that courts cannot invalidate unlawful agency rules in their entirety);
El
Paso Cty. v. Trump
, No. 19- cv-66,
In any event, the federal courts have their
own
recorded history, and it consists
of the precedential rulings that prior courts have rendered with respect to similar legal
issues. (
See supra
Part III.B.) In this regard, the
Miers
case persuasively determined
that the Judiciary Committee had Article III standing to file a subpoena-enforcement
lawsuit seeking to vindicate its investigatory interests when a former White House
Counsel refused to appear for testimony as directed.
See Miers
,
C. The President Does Not Have The Power To Prevent His Aides From Responding To Legislative Subpoenas On The Basis Of Absolute Testimonial Immunity
The merits legal issues that the instant dispute between the House Judiciary Committee and the Executive branch raises are straightforward. The Committee claims that it has issued a lawful subpoena to former White House Counsel Donald F. McGahn II ( see Compl. ¶ 107); that McGahn has refused to appear before the Committee to provide testimony as required ( id. ¶ 109); and that “[t]here is no lawful basis for McGahn’s refusal to appear before the Judiciary Committee” ( id. ¶ 110). For its part, DOJ asserts that, consistent with its understanding of the longstanding view of the Department’s Office of Legal Counsel, there is a lawful basis for McGahn’s defiance of the Committee’s valid subpoena: the President has ordered him not to. ( See Def.’s Mot. at 27.) DOJ asserts that current and former senior-level presidential aides have “absolute testimonial immunity” from compelled congressional process, as a matter of law; therefore, if the President invokes “executive privilege” over a current or former aides’ testimony—as he has done with respect to McGahn —that aide need not accede to the lawful demands of Congress. ( Id. at 27–28.) Thus, it is important to note at the outset, what is not at issue in the instant case. No one contests the lawfulness of the *92 Judiciary’s subpoena, and no one maintains that, if McGahn has the legal duty to testify before the Committee, that a senior-level aide in his position has no right to invoke executive privilege to withhold certain information in the course of his testimony, as appropriate. [24]
For the reasons that follow, this Court finds that the President does not have
(and, thus, cannot lawfully assert) the power to prevent his current and former senior-
level aides from responding to congressional subpoenas. As Judge Bates explained in
Miers
, as a matter of law, such aides do not have absolute testimonial immunity.
Therefore, as it relates to them, a valid legislative subpoena issued by a duly authorized
committee of Congress gives rise to a legally enforceable duty to perform. The
President cannot override this duty, notwithstanding OLC’s ostensible recognition of
such power. Accordingly, if a duly authorized committee of Congress issues a valid
legislative subpoena to a current or former senior-level presidential aide, the law
requires the aide to appear as directed, and assert executive privilege as appropriate.
See Miers
,
1.
Miers
Squarely Rejects The Argument Senior-Level Presidential
Aides Enjoy Absolute Testimonial Immunity
Committee on Judiciary, U.S. House of Representatives v. Miers
, 558 F. Supp. 2d
53 (D.D.C. 2008), is the only recorded case in our Nation’s history that directly
addresses the legal argument that a senior-level presidential aide is immune to a
*93
legislative subpoena seeking testimony when the President directs him to ignore that
congressional mandate. The dearth of cases involving compelled congressional process
issued to Executive branch officials is likely attributable to the fact that subpoena-
related conflicts between Congress and the Executive branch are usually negotiated,
rather than litigated, as DOJ points out. (
See
Def.’s Mot. at 33–36.) In addition, while
direct subpoena-related disputes between Congress and the Executive branch do exist, it
appears that such conflicts have been relatively infrequent; the Court suspects that this
is attributable to the fact that, as a general matter, Congress’s clear constitutional
prerogative to compel information in furtherance of its legislative and oversight
functions has been historically recognized and is typically widely respected.
See
Watkins
,
In
Miers
, Judge Bates begins by stating his conclusion that “the asserted absolute
immunity claim here is entirely unsupported by existing case law.”
Miers
, 558 F. Supp.
2d at 99. The court explained that it had reached that conclusion primarily because
“there is Supreme Court authority that is all but conclusive on this question and that
powerfully suggests that such advisors do not enjoy absolute immunity.”
Id. Miers
then turned to that case law, beginning with
United States v. Bryan
,
Even with respect to the underlying contention that the President himself is
entitled to absolute testimonial immunity,
Miers
found binding Supreme Court cases
that compelled the opposite conclusion. For example, according to Judge Bates,
United
States v. Nixon
,
Miers
also specifically rejected the asserted separation-of-powers basis for
recognizing absolute testimonial immunity by relying on the D.C. Circuit’s language in
Nixon v. Sirica
,
Finally,
Miers
further recognized that, “[t]ellingly, the only authority that the
Executive can muster in support of its absolute immunity assertion are two OLC
opinions authored by Attorney General Janet Reno and Principal Deputy Assistant
*96
Attorney General Steven Bradbury, respectively.”
Id.
at 104 (citing
Assertion of
Executive Privilege With Respect to Clemency Decision
,
In this Court’s view, Miers employs sound reasoning. And with respect to the merits analysis, this Court adopts its absolute testimonial immunity analysis in full. In particular, the Court, too, reads the cited cases to support the finding that DOJ’s absolute testimonial immunity argument is all but foreclosed by the binding case law the Miers cites, coupled with the logical flaws in DOJ’s legal analysis, which is laid out in the discussion below. In short, this Court finds that the Miers court rightly determined not only that the principle of absolute testimonial immunity for senior-level presidential aides has no foundation in law, but also that such a proposition conflicts with key tenets of our constitutional order. And, notably, no other court has considered *97 the absolute testimonial immunity question that Miers addressed since that case was decided. [27]
In the context of the instant case, DOJ responds by asserting that Miers was wrongly decided. ( See Def.’s Mot. at 48.) Moreover, and in any event, DOJ has emphasized that Miers ’s sphere of influence is exceedingly limited. ( See Hr’g Tr. at 118:13–118:14.) The thrust of the latter contention is that Miers is only one opinion— no binding authority followed—and, implicitly, the law is not established by the word of a single district court judge. See id. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. ( See Def.’s Mot. at 60.) And by minimizing Miers ’s reach in this way, DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.
Setting aside the implications of DOJ’s argument for this district court’s consideration of these issues, its effort to undercut Miers ’s holding is ineffectual, primarily because the argument inappropriately downplays both the importance of prior precedent in establishing the law as the next court understands it, and also the fact that DOJ itself controls whether more courts will have the opportunity to rule on the issue. To be sure, Miers is just one non-binding opinion. But, as noted, its analysis with *98 respect to the absolute testimonial immunity issue is directly on point; therefore, it has considerable sway in terms of this Court’s conclusions. Moreover, and in any event, this Court cannot ignore it and still remain consistent with traditional juridical norms.
Thus, DOJ’s best chance of persuading this Court to rule differently was to counter the various aspects of Miers ’s holding directly ; a skillful play -by-play of Miers ’s alleged analytical flaws would have been most useful. Instead, in its briefing, DOJ has presented essentially the same threshold and merits arguments that Miers ’s rejected, almost as if this was a matter of first impression, and thus, it has given the Court no reasonable basis to distinguish the circumstances of the instant case, nor any principled reason to interpret the law in a different fashion than Judge Bates did, as explained above. ( See, e.g ., Def.’s Mot. at 48–50 (asserting, over the span of two pages, that Miers was wrongly decided with respect to the threshold jurisdictional and standing issues, before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity).) The Court also observes that the lack of other cases on these issues is at least in part attributable to DOJ’s prior rational decisions to enter into negotiations over the scope of testimony and records when past Executive branch officials received a legislative subpoena, rather than proceed to court to litigate the purported scope of those officials’ purported immunity. (Def.’s Mot. at 32–36.) DOJ further argues here that an Executive branch official’s alleged immunity to compelled congressional process is a non-justiciable issue. (Def.’s Mot. at 31–52.) Surely, DOJ cannot both act to keep the immunity issue away from the courts, and also be heard to suggest that the paucity of precedent is itself sufficient proof that the law must countenance the concept.
2. OLC’s Long-Held View That Senior-Level Presidential Aides Have
Absolute Testimonial Immunity Is Neither Precedential Nor
Persuasive
That all said, it is certainly true that OLC has long been of the view that senior-
level presidential aides have absolute testimonial immunity; indeed, as
Miers
indicates,
the first recorded statement of the agency that specifically commits this view to writing
was authored in 1971.
See
Mem. from William H. Rehnquist, Assistant Attorney
General, Office of Legal Counsel, to John D. Ehrlichman, Assistant to the President for
Domestic Affairs,
Power of Congressional Committee to Compel Appearance or
Testimony of “White House Staff”
(Feb. 5, 1971) (“1971 Memorandum”). In that year,
then-Assistant Attorney General William Rehnquist produced a memorandum on the
point that maintained (without direct citation) that “[t]he President and his immediate
advisers—that is, those who customarily meet with the President on a regular or
frequent basis—should be deemed absolutely immune from testimonial compulsion by a
congressional committee.”
Id.
at 7. This OLC memorandum further indicated that such
persons “not only may not be examined with respect to their official duties, but they
may not even be compelled to appear before a congressional committee.”
Id.
But, of
course, as definitive as this statement of law sounds, OLC serves as legal counsel to the
Executive branch, and “the Executive cannot be the judge of its own privilege[.]”
Miers
,
In this Court’s view, the persuasiveness of OLC opinion that senior-level presidential aides enjoy immunity from compelled congressional process turns on two familiar factors: the authority that is provided in support of this proposition, and the reasons that are provided for why the author reached this conclusion. With respect to *100 the first consideration, it cannot be overstated that the 1971 Memorandum does not cite to a single case that stands for the asserted proposition, and the ten-plus subsequent statements by OLC that DOJ points to in support of this immunity simply reference back to the 1971 Memorandum without providing any court authority. It goes without saying that longevity alone does not transform an unsupported notion into law.
As for the logic behind the view, the original memorandum appears to reason by by analogy. It begins by recognizing the breadth of Congress’ power of inquiry, which admittedly “carries with it the power to compel the testimony of a witness.” 1971 Mem. at 1. And then as if providing the solution to a problem that it had not yet identified, the memo states that “if White House staff personnel are to be exempt from appearing or testifying before a congressional committee, it is because they have some special immunity or privilege not accorded others.” Id. at 1. The remainder of the 8-page document devotes itself to developing potential reasons for such a privilege. It suggests, for example, “a certain analogy to judicial proceedings[,]” in which a “distinction” is made “between a claim of absolute immunity from even being sworn in as a witness, and a right to claim privilege in answering certain questions in the course of one’s testimony as a witness.” Id. at 4.
Ultimately, the 1971 Memorandum pushes for the former, on the basis of a handful of historical examples in which former assistants to various Presidents blatantly refused to appear before Congress in response to a legislative subpoena. See id. at 5–6. At least one of these folks was apparently polite enough to write a letter to the committee that “grounded his refusal on the confidential nature of his relationship with the President.” Id. at 5. But others merely sent congressional subpoenas back with the *101 simple statement that “[i]n each instance that President directed me, in view of my duties as his Assistant, not to appear before your subcommittee.” Id. at 5; see also id. at 6.
Tellingly, the 1971 Memorandum does not purport to suggest that the law
already countenanced such behavior. Rather, the posture of the Memorandum appears
to be a policy piece that provides its client with arguments for why it should be thus.
Moreover, as
Miers
notes, Rehnquist admitted that “his conclusions [were] ‘tentative
and sketchy,’”
Miers
,
This inauspicious start does not bode well for this Court’s determination of
whether OLC’s persistent opinion that senior-level aides to the President are absolutely
immune from having to respond to compelled congressional process should be credited.
Additionally, subsequent developments in caselaw have cast doubt on the 1971
Memorandum’s suggestion that the matter of the President’s own absolute immunity
was settled because “[e]veryone associated with the Executive Branch from [the
prosecution of Aaron Burr] until now, so far as I know, has taken the position that the
President himself is absolutely immune from subpoena by anyone[.]” 1971 Mem. at 3;
see also Clinton v. Jones
,
President
, 43 Op. O. L.C. __, at *1;
Immunity of Former Counsel to the President from Compelled
Cong. Testimony
,
[29]
Miers
suggests that the contention that the President enjoys absolute immunity from compelled
congressional process was dubious as a legal proposition long before the Nixon and Clinton cases.
See
Miers
,
In fairness, over time, the initial take on absolute testimonial evolved. It appears
that OLC’s subsequent statements in support of this proposition were beefed up with
various other reasons for why one could plausibly assert that certain aides of the
President should be absolutely immune from having to testify bеfore Congress, which
reasons largely invoke constitutional separation of powers concerns, including potential
harassment of the aides (and thus, the President), the risk of disclosure of information
covered by executive privilege, and the appearance that the Executive branch is
subordinate to the Legislature.
See, e.g
.,
Testimonial Immunity Before Congress of the
Assistant to the President and Senior Counselor to the President
,
3. There Is No Principled Basis For Concluding That Senior-Level
Presidential Aides Should Have Absolute Testimonial Immunity
DOJ maintains that its contention that senior-level presidential aides should
enjoy absolute testimonial immunity plainly follows from two related premises: (1) that
the President himself has absolute testimonial immunity from compelled congressional
process, and (2) that, as a derivative matter, so too must his “immediate advisors. . .
with whom the President customarily meets on a regular or frequent basis.” (Def.’s
Mot. at 60;
see also
Hr’g Tr. at 107:12-14 (acknowledging that DOJ is making “purely a
derivative argument[,]” and that if the Court does not “think the President has absolute
immunity, then that is a serious problem”).) In
Miers
, Judge Bates ably explains that
both of these assumptions stand on shaky footing after
United States v. Nixon
,
Clinton
v. Jones,
and
Harlow v. Fitzgerald
.
See Miers
,
First of all, the concept of absolute immunity from compelled congressional
process cannot be gleaned from cases that endorse absolute testimonial immunity for
legislators, or those that accept absolute immunity
from civil damages
for a variety of
public officials. For example, DOJ’s reliance on
Gravel v. United States
,
Nor can DOJ reasonably rely on the well-established body of case law that
applies to the very different circumstance of immunity from civil damages. There are
*106
reasons
why courts have determined that judges, and legislators, and presidents cannot
be held liable for civil damages for discretionary decisions that they make in the course
of their duties.
See, e.g
.,
Forrester v. White
,
DOJ’s conception of absolute testimonial immunity for senior-level aides also turns out to be overbroad in application, which results in its imposing unwarranted societal costs. To understand why this is so, it is helpful to reflect on a hypothetical that the Court posed during the motions hearing. The Court posed to DOJ counsel a scenario in which an authorized House committee is interested in determining whether to appropriate special funding to improve the décor and the infrastructure-related working environment inside the White House. (Hr’g Tr. 124:8–20.) The committee wishes to evaluate the need for such additional funding , and it wants to talk to everyone who works there, and to compel this witness testimony, if needed. The Court asked DOJ counsel whether, if subpoenas issue, could the White House Counsel invoke absolute testimonial immunity to excuse the participation of senior-level presidential aides? ( See id .)
After engaging briefly with the Court in a humorous exchange about the
Executive branch’s interest in addressing certain issues that currently exist with the
White House (
see id
. at 124:21–22), DOJ counsel responded that “the President would
probably allow his most sensitive aides to go testify” but “if the person has testimonial
immunity and the President has asserted it . . . then, yes, [the committee] wouldn’t be
able to compel the person.” (Hr’g Tr. at 124:25–125:6.) Upon reflection, looking at it
logically, one has to wonder why that is the case? Those aides’ status as senior-level
assistants to the President seems irrelevant—i.e., when it comes to being asked about
*108
the decor in the White House, either
no
White House worker should have to be bothered
with Congress’s questions, or
everyone
who is called should have to appear. Therefore,
the distinction between aides with heightened knowledge, access to the President, and
special responsibilities (i.e., senior-level presidential aides) makes no difference where
the topic of Congress’s investigation does not even conceivably implicate such
distinction. Why, then, should senior-level presidential aides always get to play a
special trump card with respect to such congressional requests? Judge Bates reflected
on a similar concern in
Miers
, and DOJ has yet to explain why “Congress should be left
with no recourse to obtain information that is plainly not subject to any colorable claim
of executive privilege.”
Miers
,
On the other hand, if Congress seeks to explore with certain senior-level White
House aides topics of a potentially sensitive nature, it is widely accepted that the
President can exert executive privilege with respect to his aides’ answers, as
appropriate, to protect any privileged information.
Miers
,
Notably, this would appear to be the case even with respect to aides who, like
White House Counsels, are “at the hub of all presidential activity.” (Def.’s Mot. at 69
(internal quotation marks and citation omitted)). To be sure, White House Counsels and
other similar aides have unfettered access to the President on a regular basis (
see id
.),
and their roles with the Executive branch involve daily contact with copious amounts of
information that is confidential in nature, including information that has been classified
for our national security. (
See
Def.’s Mot. at 70 (emphasizing that “the role of the
Counsel is to provide advice and assistance to the President and to carry out
‘responsibilities of utmost discretion and sensitivity’ on his behalf in all realms of
domestic, military, and foreign affairs” (quoting
Fitzgerald
,
It is also the case that the other rationale that such senior-level presidential aides might hope to rely on—‘I’m too busy’—is unavailable in the wake of the Supreme Court’s conclusion that even the President himself must find the time. See Miers , 558 F. Supp. 2d at 104. In any event, no such excuse could possibly apply to former senior- level aides, who have long departed from the White House, because such individuals no longer have proximity to power. What, then, justifies their right to be excused from the duty to respond to a call from Congress, especially when other private citizens have no choice? At a minimum, this perplexing question raises the following conceptual conundrum: if the purpose of providing certain senior-level presidential aides with absolute testimonial immunity is that the practicalities of their special roles demand it, then what justifies allowing that entitlement to follow them when they return to private life? As a matter of pure logic, it would seem that if one’s access to the Oval Office is the reason that a categorical exemption from compelled congressional process is warranted, then that trump card should, at most, be a raincheck, and not the lifetime pass that DOJ proposes.
DOJ’s apparent response to the concern that absolute testimonial immunity for
current and former senior-level aides serves no purpose is its suggestion in its briefs
that such broad immunity serves three more systematic goals. First, it asserts that
absolute testimonial immunity facilitates frank communications in the White House,
and without it, the potential “public spectacle” of having to appear before a
congressional committee “would surely exert influence over [senior-level aides’]
*111
conduct in office, and could adversely affect the quality and candor of the counsel” that
they offer to the President. (Def.’s Mot. at 70.) DOJ provides no evidence to support
this representation. And it appears to contradict the lived experience of the many
government officials who have testified before Congress, seemingly without
consequence, over the years.
See Miers
,
DOJ’s assertions about the chilling effect of compelled congressional process
also imply that congressional questioning is needlessly intrusive and unwarranted, and
that characterization drastically discounts the reasons why executive branch officials,
including members of the President’s staff, are called to testify. As the Supreme Court
has suggested on numerous occasions, Congress brings in witnesses not as punishment,
but to provide the Legislature with the information that it needs to perform its critical
legislative and oversight functions.
Watkins
,
DOJ’s second systematic concern is similarly discordant. DOJ insists that,
without absolute testimonial immunity for senior-level presidential aides, the Executive
branch would grind to a halt from the weight of the subpoenas that would be thrust
upon it. (
See
Def.’s Mot. at 65.) This representation is plainly speculative.
Furthermore, such speculation seems unreasonable, given two known facts. First of all,
as DOJ itself admits, Congress has long demanded information from high- level
members of the Executive branch, apparently without incident.
See Mazars
, 940 F.3d at
721 (noting that Presidents have “been the subjects of Congress’s legislative
investigations” as far back as 1832, and that “fewer of these have required judicial
intervention”). As the Supreme Court commented in
Clinton v. Jones
, the President’s
“predictive judgment finds little support in either history or the relatively narrow
compass of the issues raised in this particular case.”
Clinton
,
In addition, as relevant here, we have a test case by which we can prove, or
disprove, DOJ’s theory. The second significant fact is that it has been more than a
decade since Judge Bates released the
Miers
decision, which plainly announced that
senior-level presidential aides lack absolute immunity from compelled congressional
process. Ironically,
Miers
itself observed that “[i]t is noteworthy that in an
environment where there is no judicial support whatsoever for the Executive’s claim of
absolute immunity, the historical record also does not reflect the wholesale compulsion
by Congress of testimony from senior presidential advisors that the Executive fears.”
Miers
,
DOJ’s third argument for the necessity of absolute testimonial immunity for systematic reasons places it back in the familiar refuge of its constitutional separation- of-powers contentions. In this regard, it maintains, that “the public spectacle of haling [current and] former advisors to a sitting President before a committee of Congress . . . promote[s] the perception of Executive subservience to the Legislature” (Def.’s Mot. at 70), which, in its view of what the Constitution permits, is improper, because “[a] committee of Congress could not, consistent with the separation of powers, hale the President before it to compel him to testify under oath, any more than the President may *114 compel congressmen to appear before him” (Def.’s Mot. at 63). Here, once again, DOJ calls on separation-of-powers principles to do work that the Framers never intended. Indeed, the entire point of segregating the powers of a monarch into the three different branches of government was to give each branch certain authority that the others did not possess. Thus, while the branches might well be conceived of as co-equals (in the sense that one cannot unlawfully subvert the prerogatives of another), that does not mean that all three branches must be deemed to have the same powers. To the contrary, the President cannot hale members of Congress into the White House for questioning precisely because the power of inquiry resides with the Legislature, and also because the Constitution itself expressly prevents the Executive branch from becom ing inquisitors by inflicting its own subpoena power on members of Congress for political reasons. [33]
Therefore, DOJ’s argument that the House of Representatives, which
unquestionably possesses the constitutionally authorized power of inquiry and also the
power of impeachment, should
not
be able to issue subpoenas to executive branch
officials because the President cannot do the same to them, simultaneously appreciates
traditional separation-of-powers principles
and
subverts them, and as such, truly makes
no sense.
See Miers
,
4. Concluding That Presidential Aides Enjoy Absolute Testimonial Immunity At The President’s Discretion Conflicts With Core Constitutional Norms Finally, the Court turns to DOJ’s contention that, quite apart from the accepted ability of a President to invoke executive privilege to protect confidential information during the course of aides’ testimony before Congress, as a matter of law, it is the President who controls whether such aide provides any testimony whatsoever. During the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke absolute testimonial immunity with respect to current and former senior-level aides belongs to the President . ( See, e.g. , Hr’g Tr. at 42:15–16 (“[T]he President owns the privilege here. So he is the owner of Mr. McGahn’s absolute immunity from compulsion[.]”), 43:4–6 (“[T]he President owns the privilege as to former officials with the same vigor with which he owns it to current officials.”), 125:5 (maintaining that immunity is “the President’s to assert”).) And when asked whether this power of the Executive is limited to such aides’ communications with Congress in particular, or also extends to preventing his aides from speaking to anyone else (e.g., the media) even after their departure from the White House, counsel indicated that while the Executive branch has “not taken a position on that,” it was “definitely not disclaiming that.” ( Id. at 43:12–16.) This single exchange—which brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life—highlights the startling and untenable implications of DOJ’s absolute *116 testimonial immunity argument, and also amply demonstrates its incompatibility with our constitutional scheme.
Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather , in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.
To be sure, there may well be circumstances in which certain aides of the President possess confidential, classified, or privileged information that cannot be divulged in the national interest and that such aides may be bound by statute or executive order to protect. But, in this Court’s view, the withholding of such information from the public square in the national interest and at the behest of the President is a duty that the aide herself possesses. Furthermore, as previously mentioned, in the context of compelled congressional testimony, such withholding is properly and lawfully executed on a question-by-question basis through the invocation *117 of a privilege, where appropriate. [34] As such, with the exception of the recognized restrictions on the ability of current and former public officials to disclose certain protected information, such officials (including senior-level presidential aides) still enjoy the full measure of freedom that the Constitution affords. Thus, DOJ’s present assertion that the absolutе testimonial immunity that senior-level presidential aides possess is, ultimately, owned by the President, and can be invoked by the President to overcome the aides’ own will to testify, is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.
* * *
To make the point as plain as possible, it is clear to this Court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetitio n in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation. And because the contention that a President’s top advisors cannot be subjected to compulsory congressional process simply has no basis in the law, it does not matter whether such immunity would theoretically be available to only a handful of presidential aides due to the sensitivity of *118 their positions, or to the entire Executive branch. Nor does it make any difference whether the aides in question are privy to national security matters, or work solely on domestic issues. And, of course, if present frequent occupants of the West Wing or Situation Room must find time to appear for testimony as a matter of law when Congress issues a subpoena, then any such immunity most certainly stops short of covering individuals who only purport to be cloaked with this authority because, at some point in the past, they once were in the President’s employ. This was the state of law when Judge Bates first considered the issue of whether former White House Counsel Harriet Miers had absolute testimonial immunity in 2008, and it remains the state of law today, and it goes without saying that the law applies to former White House Counsel Don McGahn, just as it does to other current and former senior-level White House officials.
Thus, for the myriad reasons laid out above as well as those that are articulated plainly in the prior precedents of the Supreme Court, the D.C. Circuit, and the U.S. District Court for the District of Columbia, this Court holds that individuals who have been subpoenaed for testimony by an authorized committee of Congress must appear for testimony in response to that subpoena—i.e., they cannot ignore or defy congressional compulsory process, by order of the President or otherwise. Notably, however, in the context of that appearance, such individuals are free to assert any legally applicable privilege in response to the questions asked of them, where appropriate.
V. CONCLUSION
The United States of America has a government of laws and not of men. The Constitution and federal law set the boundaries of what is acceptable conduct, and for *119 this reason, as explained above, when there is a dispute between the Legislature and the Executive branch over what the law requires about the circumstances under which government officials must act, the Judiciary has the authority, and the responsibility, to decide the issue. Moreover, as relevant here, when the issue in dispute is whether a government official has the duty to respond to a subpoena that a duly authorized committee of the House of Representatives has issued pursuant to its Article I authority, the official’s defiance unquestionably inflicts a cognizable injury on Congress, and thereby, substantially harms the national interest as well. These injuries give rise to a right of a congressional committee to seek to vindicate its constitutionally conferred investigative power in the context of a civil action filed in court.
Notably, whether or not the law requires the recalcitrant official to release the testimonial information that the congressional committee requests is a separate question, and one that will depend in large part on whether the requested information is itself subject to withholding consistent with the law on the basis of a recognized privilege. But as far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the Prеsident expressly directs such officials’ non-compliance.
This result is unavoidable as a matter of basic constitutional law, as the Miers court recognized more than a decade ago. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their *120 proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth. Nor is the power of the Executive unfairly or improperly diminished when the Judiciary mandates adherence to the law and thus refuses to recognize a veto-like discretionary power of the President to cancel his subordinates’ legal obligations. To the contrary, when a duly authorized committee of Congress issues a valid subpoena to a current or former Executive branch official, and thereafter, a federal court determines that the subpoenaed official does, as a matter of law, have a duty to respond notwithstanding any contrary order of the President, the venerated constitutional principles that animate the structure of our government and undergird our most vital democratic institutions are preserved.
Consequently, and as set forth in the accompanying Order, Plaintiff’s Motion for Expedited Partial Summary Judgment (ECF No. 22) is GRANTED , and Defendant’s Motion for Summary Judgment (ECF No. 32) is DENIED . Ketanji Brown Jackson
DATE: November 25, 2019 KETANJI BROWN JACKSON United States District Judge
Notes
[1] Page number citations to the documents that the parties have filed refer to those that the Court’s electronic case filing system automatically assigns.
[2] This investigation pre-dates the formal impeachment inquiry that the Speaker of the House announced on September 24, 2019. See Press Release, Speaker Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419- 0.
[3] This memorandum would later be published as an OLC slip opinion.
See Testimon ial Immunity
Before Cong. of the Former Counsel to the President
,
[4] The White House also initially asserted testimonial immunity with respect to former aide Hope Hicks, ( see Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman H. Comm. on the Judiciary (June 18, 2019), Ex. CC to Compl., ECF No. 1-29), but Hicks ultimately appeared for a voluntary interview, during which White House and OLC objected to her answering numerous questions on the basis of “absolute immunity” ( see, e.g. , Transcribed Interview of Hope Hicks, H. Comm. on the Judiciary, 116th Cong. (June 19, 2019), Ex. EE to Compl., ECF No. at 12, 15– 16).
[5] The Committee also issued a subpoena seeking the production of documents to then-current White
House Chief of Staff Joshua Bolten.
Miers
,
[6] Judge Bates went on to consider and reject a claim of qualified immunity for Miers, an argument that
is not made in the instant case.
Miers
,
[7] As mentioned previously, although the Judiciary Committee has named McGahn individually as the sole defendant in this lawsuit, DOJ is representing McGahn in the context of the instant case, and its arguments are made on behalf of the Executive branch.
[8] DOJ’s brief also contends that this Court should exercise its equitable discretion to refrain from adjudicating this dispute based on separation-of-powers concerns, and should instead allow the inter- branch accommodation process to play out to its conclusion. ( See Def.’s Mem. at 56–57). However, in response to a Notice that the Judiciary Committee filed on October 29, 2019, notifying the Court that the parties had reached an impasse ( see ECF No. 41), DOJ expressly withdrew its accommodations argument ( see Def.’s Resp. to Pl.’s Notice Regarding Status of Accommodation Process (“Def.’s Accommodation Resp.”, ECF No. 42, at 2).
[9] The historical roots of the concept of a “subpoena” go back to the times of ancient Rome and Athens. “[I]n the Athenian court, the witnesses who were summoned to attend the trial had their choice of three things: either to swear to the truth of the fact in question, to deny or abjure it, or else to pay a fine of a thousand drachmas.” 3 William Blackstone, Commentaries *369. Later, with respect to old English common law, historians have noted that “[t]he specific use of the sub pena clause in writs summoning men before [the Privy] council and Chancery probably . . . developed out of administrative orders used in the first half of the fourteenth century.” William M. Ormrod, The Origins of the Sub Pena Writ , 61 Historical Research 11, 16 (1988). Fast forwarding a few decades, to the 13 80s, the “writ of subpoena ” was introduced by John Waltham, Chancellor to King Richard II. 3 William Blackstone, Commentaries *52; see also Erasmus Darwin Parker, The Origin and History of the Chancery Division , 29 L. Mag. Rev. 164, 170 (1904) (explaining that, before the creation of the writ of subpoena, other writs “threatened punishment for disobedience in indefinite terms,” but the writ of subpoena involved “the substitution of a definite for an indefinite penalty”). By the 1450s, “the process by bill and subpoena [had] become the daily practice of the court.” 3 William Blackstone, Commentaries *53; see also id. at *369 (noting that “[t]his compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, [was] of excellent use in the thorough investigation of truth”).
[10] Even before the ratification of the Constitution in 1787, “[t]he colonial assemblies, like the House of Commons, very early assumed, usually without question, the right to investigate . . . [and] [t]hese investigations were sometimes conducted by the House itself and sometimes by committees clothed with authority to send for ‘persons, papers, and records.’” C. S. Potts, Power of Legislat ive Bodies to Punish for Contempt , 74 U. Pa. L. Rev. 691, 708 (1926).
[11] For a similar vantagepoint, see the circumstances described by George Orwell in the acclaimed book Animal Farm . See George Orwell, Animal Farm 141 (Otbe Book Publishing 2018) (“All animals are equal but some animals are more equal than others.”) (capitalization altered).
[12] In its opposition and cross-motion brief (ECF No. 32), DOJ also argues that, even if Article III’s prerequisites to the Court’s subject-matter jurisdiction and the Judiciary Committee’s standing are satisfied, a federal court should “stay its hand” with respect to resolving disputes between the Legislature and the Executive branch over congressional subpoenas, due to “the acute separation-of- powers concerns presented by judicial intervention in political disputes between the elected branches.” ( Id. at 56.) As note d previously, DOJ has expressly withdrawn this argument by Notice ( see Def.’s Accommodation Resp. at 2), conceding that the parties are now at an impasse over whether or not McGahn has a legal duty to appear before the Judiciary Committee for testimony ( id .). Therefore, this Court has not reached, or ruled upon, the “accommodations” species of DOJ’s separation-of-powers argument.
[13] In
AT & T I
, a House subcommittee had issued a legislative subpoena to a private entity (AT & T)
demanding documents that concerned warrantless wiretapping that the company had undertaken at the
request of the FBI.
See
[14] DOJ’s effort to minimize the impact of the D.C. Circuit’s holding in this regard is unpersuasive. ( See Tr. at 50:12– 16 (“[T]o the extent that [ AT & T I ] addresses jurisdiction, it’s in a drive-by. And the Supreme Court has said many times that courts are not bound by drive-by jurisdictional holdings. So I don’t think AT & T is in any sense binding on the jurisdictional question.”). AT & T ’s jurisdictional and justiciability pronouncements are not drive-by rulings by any stretch of the imagination; indeed, the D.C. Circuit sua sponte raised the issue of jurisdiction under section 1331. See id. at n.7 (“We are aware that 28 U.S.C. § 1331 was not alleged as the basis for jurisdiction. Although Fed. R. Civ. P. 8(a)(1) requires plaintiffs to make an allegation of the basis asserted for the district court's jurisdiction, courts are not restricted to the statutory basis alleged if the factual allegations fairly support an alternative basis in a more proper or simple manner.”). Thus, unless and until that case is overturned, it is binding precedent in this Circuit. ( See supra Part III.B.)
[15] To be fair, in these lawsuits, President Trump argued that the congressional committee subpoenas are
unenforceable in his
personal
capacity. But when DOJ was invited file an amicus brief at the appellate
level in
Mazars
, it did not raise an objection to the courts’ jurisdiction; instead, it emphasized that
federal courts “must” determine —after a “searching evaluation”— whether the legislative subpoena
ought to be quashed because, for instance, it is “impermissibly attempting to interfere with or harass
the Head of the Executive Branch.” Amicus Brief of the United States at 1–2,
Trump v. Mazars USA,
LLP
,
[16] Though the circumstances that have given rise to these two legal actions surely differ, there appear
to be only two relevant distinctions between the legal claims that the Judiciary Committee is making in
these two cases. In the
In re Application for Grand Jury Materials
litigation, the Committee’s
purported right to the materials at issue (grand jury information) arguably derives both from its own
Article I authority to conduct investigations pursuant to its impeachment powers, and also from the
court’s limited authority to make exceptions to grand jury secrecy under Federal Rule of Criminal
Procedure 6(e). See
[17] The Court finds it noteworthy that DOJ does not provide a single authority that actually stands for the proposition that the Constitution is violated whenever the federal courts entertain any kind of dispute between the Legislature and the Executive branch. ( See Hr’g Tr. at 60:18.) DOJ’s argument in this regard appears to rely the position that the Executive branch would be inappropriately rendered subordinate to the other two branches of government if the Legislature can file suit against the Executive branch in court. ( See id. 68:1– 10.) But in the absence of a case that stands for this proposition, it seems a better view of the Executive’s predicament is that, if anything, all of the branches are equal in that all are subordinate to the law , and the courts are only the messengers, to the extent that the Judiciary has the power to determine what the law is. See Richard H. Fallon, Jr., Executive Power and the Political Constitution , 2007 Utah L. Rev. 1, 17 (2007) (“[I]t is arguable that the power to decide cases necessarily implies the power to decide them authoritatively, and authority in some cases depends on executive obedience.”). To find otherwise is to flout what is unquestionably the most significant tenet that exists in our system of government: that each branch of the federal government has limited power under the Constitution, and that no one, not even the head of the Executive branch, is above the law. DOJ’s insistence that the Judiciary does not have the power to declare the law in the context of an inter-branch legal dispute cannot be easily squared with acceptance of these universal constitutional maxims.
[18] Of course, any protestation would be futile, since this broad power of Congress is well established.
See, e.g.
,
McGrain
,
[19] “Because Article III limits the constitutional role of the federal judiciary to resolving cases and
controversies, a showing of standing is an essential and unchanging predicate to any exercise of our
jurisdiction.”
Fla. Audubon Soc. v. Bentsen
,
[20] Thus, the “particularized” injury requirement,
Lujan
,
[21] According to the Committee, the Mueller Report found that “‘[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion’ ” (Compl. ¶ 1 (quoting Mueller Report Vol. 1 at 1)); that this interference was “intended to benefit the Trump Presidential campaign” ( id. ¶ 26 (citing Mueller Report Vol. 1 at 1)); and that President Trump “repeatedly attempted to shut down the investigation into Russia’s interference in America’s 2016 election and to conceal his own involvement and potential misconduct from the public” ( id. ¶ 32). The truth or falsity of the Mueller Report’s findings and conclusions is immatеrial to the present legal action, and neither party suggests otherwise. ( See Pl.’s Stmt. of Facts at 3 n.1 (“In paragraphs 6-68, the Judiciary Committee does not recount information included in the Report to establish the truth of the matters asserted. Rather, the Committee relays what the Special Counsel has told Congress and the American people in order to explain the basis for the Committee’s investigation.”); see also Def.’s Resp. to Pl.’s Stmt. of Facts,
[22] DOJ’s appeal to
Walker v. Cheney
is also unavailing. In
Walker
, the Comptroller General requested
certain information from the Vice President on behalf of four Senators.
[23]
Reed v. County Commissioners of Delaware County, Pa
.,
[24] The astute reader will note that the Judiciary Committee’s complaint does include an allegation that “[t]he President has waived executive privilege as to the subpoenaed testimony that relates to matters and information discussed in the Report.” (Compl. ¶ 112.) However, by consent of the parties and with respect to the Court’s consideration of the pending cross-motions for summary judgment, the question of whether and to what extent McGahn can actually invoke executive privilege during his testimony before the Committee in light of the President’s alleged waiver has been put on hold.
[25]
Miers
noted, in particular,
Bryan’s
classic observation that “[a] subpoena has never been treated as
an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end
of the chase.”
Miers
,
[26]
Harlow
addressed the applicability of the “alter ego” derivative immunity that the Supreme Court
had determined applied to
legislative
aides in a case called
Gravel v. United States
,
[27] In Committee on Oversight & Government Reform v. Holder , District Judge Amy Berman Jackson evaluated whether, pursuant to a congressional subpoena, documents over which the Attorney General had asserted executive privilege must be turned over to the congressional committee. 979 F. Supp. 2d 1. Although the Holder opinion adopts Miers ’s reasoning with respect to the threshold issues of jurisdiction, standing, and cause of action, see id. at 10–12, 17– 26, that court had no occasion to consider the merits of the absolute testimonial immunity claim that DOJ makes here.
[28] The Executive appears to havе adopted a practice of regularly securing a new OLC opinion on the existence of testimonial immunity whenever faced with a new Congressional subpoena. See, e.g. , Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the
[30] DOJ attempts to distinguish the Clinton and Nixon cases on the grounds that those cases involved subpoenas issued in the context of a private, civil action for damages and in grand jury proceedings, respectively, while, here, what is at issue is a legislative subpoena. DOJ further contends that, in Nixon , live testimony by the President was not at issue. However, these distinctions are immaterial from the standpoint of the Supreme Court’s conclusion that, while presumptively important, a President’s confidentiality interests may sometimes be overridden over his objection. Furthermore, in this Court’s view, DOJ’s emphasis on the fact that what is at issue here is a legislative subpoena undercuts its argument, given the Supreme Court’s long-held reverence for Congress’s broad investigative authority. Where the law has not provided absolute immunity for P residents who are facing significant civil damages lawsuits or who have criminal exposure (i.e., compelling claims to the need for confidentiality), it seems unlikely that a Presiden t would be declared absolutely immune from compelled congressional process.
[31] For example, in
Mireles v. Waco
,
[32] DOJ suggests that there is something about Don McGahn’s former proximity to national security matters that warrants his immunity nonetheless. (Def.’s Mot. at 69, 73.) But it has not explained why this is so, given that such senior-level aides would certainly have the right to withhold information on the grounds of an applicable privilege, where appropriate. Thus, the fact that McGahn was “White House Counsel” and undoubtedly had exposure to “matters affecting the military, foreign affairs, and national security” (Def.’s Mot. at 64 (quotation marks and citation omitted)) does not provide an additional justification for a grant of absolute testimonial immunity under these circumstances. If what he knows can be lawfully withheld as covered by an applicable privilege, then the law will preclude its disclosure, even if he is compelled to testify in the absence of immunity. And if he cannot properly invoke the privilege, then there is no rational basis for maintaining that he should be immune to Congress’s questioning.
[33] The Speech and Debate Clause mandates that members of the House and Senate and their aides “may
not be made to answer—either in terms of questions or in terms of defending himself from
prosecution—for the events that occurred” as part of the legislative process.
See Gravel
, 408 U.S. at
614– 16. The Constitution, therefore, makes legislators and their aides immune to the force of subpoena
with respect to protected legislative activity. The Supreme Court has explained that the Speech and
Debate Clause derives from a similar provision of the English Bill of Rights of 1689, which served to
address successive monarchs’ use of “criminal and civil law to suppress and intimidate critical
legislators.”
See United States v. Johnson
,
[34] With respect to such withholding, the President can certainly identify sensitive information that he deems subject to executive privilege, United States v. Nixon , 418 U.S. at 713, and his doing so gives rise to a legal duty on the part of the aide to invoke the privilege on the President’s behalf when, in the course of his testimony, he is asked a question that would require disclosure of that information. But the invocation of the privilege by a testifying aide is an order of magnitude different than DOJ’s current claim that the President essentially owns the entirety of a senior-level aide’s testimony such that the White House can order the individual not to appear before Congress at all .