The D.C. Circuit Got History Wrong in its McGahn Decision

On April 22, 2019, the House Judiciary Committee issued a subpoena to former White House Counsel Don McGahn, requiring him to produce documents and to testify at a public hearing about 36 topics related to then-Special Counsel Robert Mueller’s Russia investigation. McGahn refused to comply with the subpoena, claiming absolute immunity from testifying before Congress. Almost a year and a half later, after congressional contempt proceedings, multiple judicial hearings and four important judicial opinions, the House remains no closer to enforcing that subpoena. On Aug. 31, his last day in office, Judge Thomas Griffith, joined by Judge Karen Henderson, issued a majority opinion holding that the House’s lawsuit should be dismissed. Griffith reasoned that Congress has not authorized the House to file suit in federal court to enforce congressional subpoenas. The third member of the panel, Judge Judith Rogers, dissented from the majority’s decision, arguing that the Constitution itself and the Declaratory Judgement Act authorize the House to file such a suit.

One could be excused for having deja vu, particularly if you are not familiar with the various justiciability doctrines that bar federal courts from hearing particular lawsuits. In February, the same split panel, with Griffith and Henderson in the majority and Rogers in dissent, ruled that the House’s lawsuit had to be dismissed because the Constitution did not give federal courts jurisdiction to hear such suits. The full D.C. Circuit, sitting en banc, vacated Griffith’s February opinion, however, and, ultimately, reversed it. In an opinion by Rogers, the full D.C. Circuit voted 7-2 to allow the suit to proceed. (Judges Gregory Katsas and Neomi Rao, both appointed by Trump, recused themselves from the case.) Rogers’s opinion for the full court repeatedly emphasized the importance of the House’s ability to enforce its subpoenas in court. As she wrote, “[P]ermitting Congress to bring this lawsuit preserves the power of subpoena that the House of Representatives is already understood to possess.” In the full court’s view, it was not judicial enforcement of congressional subpoenas but “McGahn’s challenge to the Committee’s standing that s[ought] to alter the status quo ante and aggrandize the power of the Executive Branch at the expense of Congress.” Rogers continued: “Without the possibility of enforcement of a subpoena issued by a House of Congress, the Executive Branch faces little incentive to reach a negotiated agreement in an informational dispute. Indeed, the threat of a subpoena enforcement lawsuit may be an essential tool in keeping the Executive Branch at the negotiating table.”

Griffith’s most recent opinion stands in direct contrast to the full court’s recognition that the possibility of judicial enforcement is a necessary part of congressional oversight authority. In the opinion released Monday, he and Henderson (again) rejected the possibility that the House could sue to enforce its subpoenas. But they did so under a separate doctrine this time. The full D.C. Circuit had concluded that the Constitution allowed the federal courts to hear suits brought by a house of Congress seeking to enforce its subpoenas. Griffith concluded, however, that Congress had not authorized such suits. In other words, even though the Constitution allows it to do so, Congress had not provided the House with a cause of action to enforce its subpoenas in the federal courts. 

There is much to say about the legal reasoning in Griffith’s opinion. For example, he relies on two Watergate-era statutes that provide the Senate a cause of action to enforce its subpoenas in order to conclude that “Congress has declined to authorize lawsuits like the [House’s] twice over.” He thus accepts the government’s argument that the existence of a statutory cause of action for the Senate implies Congress did not want to authorize the House to sue. But that argument has been persuasively rejected by two well-respected district court judges (one an appointee of George W. Bush and the other an appointee of Barack Obama). As those judges recognized, the statutes on which Griffith relies dealt with a separate problem, and one of them expressly does not apply to instances in which governmental privileges are asserted, even for the enforcement of a Senate subpoena. Indeed, both district court judges noted that the report accompanying the enactment of one of the relevant statutes stated explicitly that it was “not intended to be a congressional finding that the federal courts do not now have the authority to hear a civil action to enforce a subp[o]ena against an officer or employee of the federal government.” Griffith’s opinion found to the contrary without addressing the relevant history of the statutes or the counterarguments that led previous judges to reject the government’s argument.

More troubling, however, is Griffith’s somewhat cursory dismissal of the role of courts in these interbranch disputes. He asserts that courts have no inherent equitable power to remedy a constitutional violation against the House. In his view, the “debate concerning [the] formidable power to compel executive-branch officials to respond to congressional subpoenas should be conducted and resolved where such issues belong in our democracy: in the Congress” (internal quotation marks omitted). Because there is no historical “tradition” of courts issuing an injunction “against a former Executive Branch official in an interbranch information dispute,” Griffith concludes that courts may not issue such equitable relief in this instance. He also notes that “time and again, the Supreme Court has warned federal courts to hesitate before finding implied causes of action,” and claims to be abiding by that warning in this case.

The issues presented in this case are thorny ones, as any law student taking a class on federal courts knows. Griffith’s opinion, however, has a fundamental flaw that any astute observer can recognize. In claiming the mantle of history and tradition, he fails to consider the relevant history of congressional oversight of the executive branch. He finds support in the absence of any past examples of a court issuing an injunction to a former executive branch official to provide information. But he never addresses the fact that an executive branch official could not have claimed absolute immunity and refused to comply with a congressional subpoena until the executive branch created that doctrine in the 1970sAdvertise on IT Security News.