Committee on the Judiciary of the U.S. House of Rep. v. McGahn II, No. 19-5288, 2020 WL 1149883,            ___ F.3d ___ (D.C. Cir. Feb. 28, 2020)

Editorial Note:   This decision lays bare the dilemma that arises when the Executive Branch refuses to cooperate with the House of Representatives in the exercise of the House's constitutional power of impeachment.  On the one hand, if the Judicial Branch holds that the House has standing to require the attendance of Executive Branch officers to testify, surely to follow would be hearings in the courts about the validity of privileges raised in response to requests for information either through testimony or the production of documents.  On the other hand, a holding that the House lacks standing to file subpoena enforcement actions would embolden the Executive Branch to withhold information relevant to an impeachment investigation.  The majority opinion by Judge Griffith, the concurring opinion by Judge Henderson, and the dissent by Judge Rogers layout the arguments for and against each outcome.  All agree that the Supreme Court has never decided the precise issue presented in this case because other cases such as United States v. Nixon arose in contexts where the courts traditionally weigh-in.  For example, the issue of whether President Nixon could be required by the court to produce the White House tapes arose in the context of a criminal case.  None arose in the precise context presented here.  Although from the beginning of the republic the Executive Branch and Congress have squabbled over Congress's right to information to fulfill its constitutional oversight function, the branches, until now, have been able to resolve such disputes through negotiation and compromise.  The majority opinion explains that the lack of standing does not render Congress helpless, stating that Congress has the power to hold Executive officers in contempt, withhold appropriations, refuse to confirm a president's nominees, harness public opinion, frustrate a president's legislative agenda, or impeach a president.  The dissent notes that the Department of Justice's Office of Legal Counsel has twice opined that those remedies are inadequate to level the playing field.  Under Marbury v. Madison, a strong argument can be made that the Judicial Branch has the power to calibrate the balance of power inherent in the Constitution's separation of powers doctrine.  The courts should be the final arbiter of the scope of the impeachment power lodged by the Constitution in the House of Representatives and the scope of the Executive Branch's right to confidentiality.  The Supreme Court will need to strike the appropriate balance.  One possible resolution could involve the establishment of streamlined procedures in the courts to quickly resolve both the issue of enforcing attendance and the scope of privileges protecting certain disclosures.

Summary of the Majority, Concurring, and Dissenting Opinions

               On February 28, 2020, a panel of the D.C. Circuit in an eighty-two-page slip opinion held that the Committee on the Judiciary could not compel the appearance of Donald McGahn, the former White House Counsel, under a subpoena issued with the authorization of the full House.  Judge Griffith wrote the opinion for the majority that was joined by Judge Henderson who filed a concurring opinion.   Judge Rogers issued a dissenting opinion.  The issue before the court was whether the Committee could seek the assistance of the federal courts to compel the mere attendance of McGahn to testify before the Committee as part of its impeachment investigation.  The ancillary issue of whether, if compelled to attend, the Committee could seek court review of any assertion of privilege—absolute immunity, executive, attorney-client, or some other privilege—was not before the court.

               The Majority Opinion

               The majority opinion concluded that under the Separation of Powers doctrine the federal courts lack authority to resolve disputes between Congress and the President “until their actions harm an entity ‘beyond the [Federal] Government,'” quoting Raines v. Byrd, 521 U.S. 811, 820 (1997).  2020 WL 1125837 at *3.  The opinion distinguished this case from United States v. Nixon, 418 U.S. 683, 696-87 (1974) stating that Nixon involved a subpoena of specified evidence in a criminal case, i.e., the kind of controversy threatening individual liberty that courts traditionally resolve.  Id. (quoting Nixon, internal quotations omitted).  The opinion stated “[t]hat obstruction may seriously and even unlawfully hinder the Committee's efforts to probe presidential wrongdoing but is not a ‘judicially cognizable' injury.”  Id. at *4 (quoting Raines, 521 U.S. at 819).  The opinion observed that Congress and the President in the past had resolved most of their differences through negotiation and accommodation.  Id. at *5.  The majority opinion  explained that in the absence of a resolution by negotiation Congress is not powerless, stating that Congress (either the House or the Senate) may hold Executive Branch officers in contempt, withhold appropriations, refuse to confirm the President's nominees, harness public opinion, delay or derail the President's legislative agenda, or impeach.   Id. at *6.  The opinion admitted that the D.C. Circuit in the past had involved the court in “a handful of interbranch information disputes beginning in the 1970s” but stated that “the legal basis of that practice is dubious.”  Id.   “[A] single appellate precedent from 1974 cannot establish historical bona fides for the Committee's suit.”  The opinion acknowledged that federal courts have considered the permissibility of congressional subpoenas but those case are distinguishable because they arose in three procedural contexts not present in this case: (i) prosecutions of criminal contempt of Congress, (ii) applications for writs of habeas corpus, and (iii) civil suits affecting the rights of private parties.  Id. at * 9 (citations omitted).

               The majority opinion rejected what it characterized as the Committee's overbroad reading of Arizona State Legislature v. Arizona Ind. Redistricting Comm'n, 135 U.S. 2652 (2015).  Id. at * 10.   There, the Supreme Court held that a state legislature had Article III standing under the Constitution's Election Clause to assert an “institutional injury” to its redistricting powers.  Id. at *10.  The Committee argued that if the Arizona legislature had standing surely the Committee had standing here.  Id.  Judge Griffith noted that in Arizona State Legislature the Supreme Court expressly stated that its decision did not touch or concern whether Congress as standing to bring a suit against the President and that a suit of that nature would raise separation-of-powers concerns absent in suits involving state legislatures.  Id. (quotations omitted).  The majority opinion explained that for two hundred years lawsuits between Congress and the Executive Branch did not exist, even though disputes between the two branches of government over congressional requests for information have arisen since the beginning of the Republic.  Id. at * 8 (internal quotations omitted). 

               The Judge Griffith acknowledged that in the past the D.C. Circuit has permitted individual legislators to assert institutional injuries against the Executive Branch, but he concluded that the “Committee's reliance on our old legislative-standing cases cannot save it from confronting Raines.  Id. at *12.  The majority opinion explained that “[i]f the federal courts were to swoop in to rescue Congress whenever its constitutional tools [explained above] failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual ‘overseer[s]' of our elected officials.” Id. at *15 (emphasis original) (quotations and citations omitted).

               The majority opinion was careful to note that it was not deciding whether a statute authorizing a suit like this one would be constitutional, observing that “[p]erhaps that statute would render suits to enforce subpoenas ‘judicially cognizable,' Raines, 521 U.S. at 819, though Congress could not ‘erase Article III's standard requirements,' id. at n.3.  We leave that issue for another day.”  Id. at *15.

               In sum, the majority opinion held that the court lacked jurisdiction because of the absence of an Article III “case or controversy” and, therefore, did not reach McGahn's “absolute immunity” arguments.  The opinion ordered that the case be dismissed upon remand.  Id. at *16.

               The Concurring Opinion

               Judge Henderson agreed with the Judge Griffith's opinion holding that the Committee lacks standing.  Id. However, she stated her reluctance to endorse the “categorical stance” advocated by McGahn.  Id.  “In his swing for the fences, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute.”  Id. (emphasis original).  Counsel for McGahn stated at oral argument “that ‘the broadest formulation of our argument would be that Congress, when it's asserting its institutional prerogatives, never ha[s] standing.'”  Id. at *16 n.1 (emphasis added).  The concurrence noted that if this suit were brought by individual legislators a straightforward application of Raines would require dismissal for lack of standing, citing the D.C. Circuit's recent decision in Blumenthal v. Trump, 949 F.3d 14, 19 (D.C. Cir. 2020) (per curiam) (holding that Senator Blumenthal and other legislative members—despite claiming an institutional injury—had not been authorized to represent their respective Houses of Congress and, therefore, under Raines they lacked Article III standing”).  Id.

               The opinion recognized that in Arizona State Legislature both houses of the state legislature were plaintiffs alleging an institutional injury and the Supreme Court distinguished Raines by noting that there only six members of Congress where plaintiffs.  Id. at *18.  The concurrence went on to note that, unlike Raines, here the plaintiffs was authorized to represent the full House of Representatives.  Further, the opinion continued,  the injury alleged is the House's ability to carry out its constitutional power to conduct impeachment investigations and, therefore, the Senate need not join in the suit.  Id.  Still, the concurrence concluded that Committee, fully authorized by the full House, lacked Article III standing because the existence of a “controversy” is not enough:  Standing requires that the controversy is the kind of controversy the courts traditionally resolve.  Id. (quoting United States v. Nixon, 418 U.S. 683, 696 (1974)).   The opinion then noted that in Raines the Supreme Court “declared that in past ‘confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power.'”  Id.

               Judge Henderson summarized her analysis stating:  First, that the Supreme Court made clear in Raines that legislators lack Article III standing to remedy an institutional injury, subject to extremely narrow exceptions.  Id. at * 19.  And, second, the Supreme Court in Arizona State Legislature made clear that even though it found the state legislature had standing to assert a legislative injury the case did not implicate separation-of-powers concerns.  Id.  “Nor does this suit resemble a ‘case' or ‘controversy' traditionally contemplated as within Article III power.  Accordingly, judicial restraint counsels that we find the Committee lacks standing for want of a cognizable injury.”  Id.  “To the extent, if any, Arizona State Legislature leaves the legislative standing door ajar, it is not our role to fling that door open.”  Id.

               The concurring opinion went into considerable pains to address in dicta McGahn's “absolute immunity” argument, stating that his “claimed immunity rests on somewhat shaky legal ground.”  Id. at *20.  Ultimately, Judge Henderson “emphasize[d] that the applicability of specific privileges in this case is not yet susceptible to judicial resolution: none has been formally asserted and, in any event, we do not reach the merits because of the Committee's lack of standing.  I write separately, however, because I see qualified privileges as the preferred mechanism for resolving these interbranch informational disputes in the future.”  Id. at *23.

               The Dissenting Opinion

               Judge Rogers began his opinion by stating that the decision of the Panel “reaches the extraordinary conclusion” that the Committee, fully authorized by the House of Representatives (House), lacks standing to seek judicial enforcement of a subpoena issued pursuant to the House's “sole Power of Impeachment” under Article I, clause 2, cl. 5 of the Constitution.  Id.  “Exercising jurisdiction over the Committee's case is not an instance of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts.”  Id.  The opinion noted that there is no dispute that there has not been a single instance in history in which the President instructed the Executive Branch “not to cooperate in any form or fashion.”  Id. at *25 (Oral Arg. Tr. at 21).  The dissent stated that the House has a cause of action under Article I because obtaining information from the Executive is paramount to the exercise of its power to impeach.  Id.  Alternatively, the opinion noted that the Committee has a cause of action under the Declaratory Judgment Act.  The dissent also stated that the district court had jurisdiction under 28 U.S.C. § 1331 (original jurisdiction over all civil actions arising under the Constitution).  Id.

               The dissent then proceeded to articulate why the Committee had Article III standing under the analysis embodied in Raines v. Byrd, 521 U.S. 811 (1997).  Id.  “[E]ach factor that in Raines counselled against the existence of standing is absent here and therefore Raines does not control the outcome of the standing issue.”  Id.   The dissent argued that while the alleged “institutional injury” in Raines was “wholly abstract and widely dispersed” here the injury is neither.  Id.  In Raines, Judge Rogers observed, the issue related to the Line Item Veto Act and its impact of the balance of power between the House and President.  Id.  Here, the opinion explained, the House has a long-recognized right, based on the Constitution, to compel McGahn to appear before it.  Id. 

               The opinion disagreed that Article III can be satisfied only when an individual right is at stake, noting that Raines left open the possibility that some institutional injuries would be sufficient to confer a legislative body standing.  Id. at *26.  The opinion also noted that in Arizona State Legislature the Court recognized that the legislature itself had incurred an institutional injury.  Id.  Judge Rogers continued that unlike Raines—where the Supreme Court held that plaintiffs sought a remedy that was contrary to historical experience—here there is no historical experience because until now the Executive and Congress have resolved these types of informational disputes through negotiation and compromise.  Consequently, the dissent explained that the fact that the Supreme Court had not squarely addressed this issue is not surprising.  Id.   In any event, the opinion continued, federal courts have traditionally decided cases such as this one, given that the courts have entertained Congressional subpoena lawsuits against the Executive since 1974.  Id.

               The dissent noted that the relief sought by the Committee is “quite narrow” because it seeks an order requiring McGahn to appear and does not address any privileges he might raise when present before the Committee.  Id. at *30.  The opinion rejected the alternative to judicial enforcement remedies—raised by Judge Griffith in the majority opinion—as impractical, pointing to two opinions from the Office of Legal Counsel that had reached the same conclusion.  Id.  The opinion noted that McGahn could point to no federal court that has accepted the argument that Congress lacks standing to file a subpoena-enforcement action against the Executive Branch.  Id. at *31.  Judge Rogers posited that what would disrupt the present balance of power would not be a decision recognizing institutional standing but one that decided such lawsuits are impermissible.  Id.  The opinion stated that mandating appearance before the Committee is not a nonjusticiable political dispute, explaining that courts “regularly review the actions of Congress or the Executive Branch for compliance with the Constitution, and indeed doing so is a bedrock feature of judicial review,” citing Marbury v. Madison, 5 U.S. (1 Cranch) 137.  Id. at *32.

               The dissent noted the catch-22 nature of this dispute between the Executive Branch and Congress, observing that in this appeal McGahn argued that Congress lacks standing to bring a subpoena enforcement action to compel his attendance before the Committee and the President's lawyers in the impeachment proceeding argued that the Committee should have sought the assistance of the courts to require Executive Branch witnesses to testify.  Id.