Committee on the Judiciary of the U.S. House of Representatives v. McGahn II

• Court: District Court, District of Columbia
• Decided: November 25, 2019
• Docket: Civil Action No. 2019-2379
• Status: Published

Opinion

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. 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, 558 F. Supp. 2d 53, 55 (D.D.C. 2008) (Bates, J.). First, DOJ

argued that a duly authorized committee of Congress acting on behalf of the House of

Representatives cannot invoke judicial process to compel the appearance of senior-level

aides of the President for the purpose of receiving sworn testimony. See id. at 66–67,

78. Second, DOJ maintained that a President can demand that his aides (both current

and former) ignore a subpoena that Congress issues, on the basis of alleged absolute

testimonial immunity. See id. at 100. And, third, DOJ asserted that the federal courts

cannot exercise subject-matter jurisdiction over any such subpoena-related stalemate

between the Legislature and the Executive branch, on separation of powers grounds.

See id. at 72–73, 93–94. The district court that considered these propositions rejected

each one in a lengthy opinion that thoroughly explained why the federal courts have

subject-matter jurisdiction over such disputes, see id. at 64–65; why the Judiciary

Committee had standing to sue and a cause of action to proceed in federal court, see id.

at 65–94; and why the claim that a President’s senior-level aides have absolute

testimonial immunity is meritless, see id. at 99–107. Most importantly, the Miers

opinion also persuasively demonstrated that DOJ’s conception of the limited power of both Congress and the federal courts relative to the expansive authority of the

President—which, purportedly, includes the power to shield himself and his aides from

being questioned about any aspect of their present or former White House work—is not

grounded in the Constitution or in any other federal law. See id. at 99, 106–07; cf.

Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 10–11 (D.D.C.

2013).

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 connection 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.).

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 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

3 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, 558 F. Supp. 2d at 64–65. Jurisdiction exists because the Judiciary

Committee’s claim presents a legal question, and it is “emphatically” the role of the

Judiciary to say what the law is. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803). It also plainly advances constitutional separation-of-powers principles, rather

than subverts them, when a federal court decides the question of whether a legislative

subpoena that a duly authorized committee of the House of Representatives has issued

to a senior-level aide of the President is valid and enforceable, or, alternatively, is

subject to the President’s invocation of absolute testimonial immunity. Furthermore,

Miers was correct to conclude that, given the indisputable Article I power of the House

of Representatives to conduct investigations of potential abuses of power and subpoena

witnesses to testify at hearings concerning such investigations, the Judiciary Committee

has both standing and a cause of action to file an enforcement lawsuit in federal court if

the Executive branch blocks a current or former presidential aides’ performance of his

duty to respond to a legislative subpoena. See id. at 65–75, 78–94.

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

4 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, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is

the Judiciary’s duty under the Constitution to interpret the law and to declare

government overreaches unlawful. Similarly, the House of Representatives has the

constitutionally vested responsibility to conduct investigations of suspected abuses of

power within the government, and to act to curb those improprieties, if required.

Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on

separation-of-powers grounds—essentially, that the Constitution’s scheme

countenances unassailable Executive branch authority—is baseless, and as such, cannot

be sustained.

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

5 these same legal arguments before, and DOJ has done little to persuade this 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, 558 F. Supp. 2d at 56; see also id. (noting that “[t]he specific claims of

executive privilege that [a subpoenaed presidential aide] may assert are not addressed—

6 and the Court expresses no view on such claims”). And in reaching this conclusion,

“[t]he Court holds only that [McGahn] (and other senior presidential advisors) do not

have absolute immunity from compelled congressional process in the context of this

particular subpoena dispute.” Id. at 105–06. Accordingly, just as with Harriet Miers

before him, Donald McGahn “must appear before the Committee to provide testimony,

and invoke executive privilege where appropriate.” Id. at 106.

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

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.

7 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, 2019 WL 5485221, at *2–7 (D.D.C. Oct. 25, 2019). In any event, this

Court need not detail them here. It suffices to note that investigators from the Special

Counsel’s office interviewed McGahn on several separate occasions—the Mueller

Report indicates that the interviews with McGahn took place on at least five different

dates (see Compl. ¶ 94)—and it is also noteworthy that McGahn’s statements to those

investigators are specifically mentioned in the Mueller Report multiple times and in

8 connection with various topics, including the resignation of National Security Advisor

Michael Flynn (see id. ¶ 35); the termination of FBI Director James Comey (see id. at

65–69); the decision by Attorney General Jefferson B. Sessions III to recuse himself

from overseeing the Special Counsel’s investigation (see id. ¶ 36); and President

Trump’s alleged attempts to remove Special Counsel Mueller (see id. ¶ 35). Following

the release of the Mueller Report, President Trump made a number of comments in

which he appeared to call into question the veracity of what McGahn had told the

Special Counsel. (See Pl.’s Stmt. of Facts ¶¶ 70–74 (citations omitted).)

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

9 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

10 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, 558 F. Supp. 2d at 106).)

11 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

3 This memorandum would later be published as an OLC slip opinion. See Testimonial Immunity Before Cong. of the Former Counsel to the President, 43 Op. O.L.C. ___, Slip. Op. (May 20, 2019) (“McGahn OLC Mem.”).

12 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, 558 F. Supp. 2d at 106)). Rather, the Committee

expected McGahn to appear at the hearing and invoke executive privilege where

appropriate, as Judge Bates had ordered former White House Counsel Harriet Miers to

do. (See id.)

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

13 Judiciary, to Donald F. McGahn II and Pat A. Cipollone, Counsel to the President (May

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

14 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

B. Committee on Judiciary, U.S. House of Representatives v. Miers

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

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).

15 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, 31 Op. O.L.C. 191 (2007).

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, 558 F. Supp. 2d at 55. In response, the

Executive branch “moved to dismiss this action in its entirety on the grounds that the

Committee lacks standing and a proper cause of action, that disputes of this kind are

non-justiciable, and that the Court should exercise its discretion to decline jurisdiction.”

Id. at 55–56. On the merits, the Executive branch asserted that “sound principles of

separation of powers and presidential autonomy dictate that the President’s closest

advisors must be absolutely immune from compelled testimony before Congress[.]” Id.

5 The Committee also issued a subpoena seeking the production of documents to then-current White House Chief of Staff Joshua Bolten. Miers, 558 F. Supp. 2d at 61.

16 at 56. For its part, the Judiciary Committee filed a cross-motion for partial summary

judgment that argued that Miers had no legal right to refuse to appear and that there was

no legal basis for the assertion of absolute testimonial immunity. See id. at 99.

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, 551 F.2d 384

(D.C. Cir. 1976) (“AT & T I”)—was “on point and establishe[d] that the Committee has

standing to enforce its duly issued subpoena through a civil suit.” Id. at 68. Noting

that general subpoena enforcement disputes are common in federal courts, Judge Bates

further concluded that “this sort of dispute is traditionally amenable to judicial

resolution and consequently justiciable[,]” id. at 68, 71, and that “courts have

entertained subpoena enforcement actions (or motions to quash subpoenas) where the

political branches have clashed over congressional subpoenas[,]” id. at 71; see also id.

at 70 (explaining that “the [Supreme] Court has never held that an institution, such as

the House of Representatives, cannot file suit to address an institutional harm”).

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

17 associated “‘process to enforce’” that constitutional interest was “‘an essential and

appropriate auxiliary to the legislative function.’” Id. at 75 (quoting McGrain v.

Daugherty, 273 U.S. 135, 174 (1927)). Judge Bates also concluded that the Judiciary

Committee had a limited “implied cause of action . . . to seek a declaratory judgment

concerning the exercise of its subpoena power[,]” which derived from the House’s

Article I legislative functions. Id. at 95.

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 argument 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, 457 U.S. 800

(1982)—in which the Court rejected absolute immunity for Executive aides in the

18 context of civil lawsuits seeking monetary damages, except possibly where the aides

were involved in the areas of national security or foreign policy—“virtually foreclosed”

the absolute testimonial immunity argument that the defendants were advancing. Id. at

100. And Judge Bates found it telling that “the only authority that the Executive can

muster in support of its absolute immunity assertion are two OLC, which he found to be

“for the most part[,] conclusory and recursive.” Id. at 104. 6 Thus, Judge Bates

declared that Miers was not immune from compelled congressional process, and

therefore, was legally required to “appear before the Committee to provide testimony,

and invoke executive privilege where appropriate.” Id. at 106; see also id. at 108.

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.

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, 558 F. Supp. 2d at 105.

19 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.

20 (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 request 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

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.

21 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

22 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 advisors—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

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).

23 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, 2019 WL 3779570, at *7 (D.D.C. Aug. 12, 2019)

(denying in part cross-motions for summary judgment because there were genuine

disputes of material fact and allowing certain claims to “proceed to trial”).

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,

2019 WL 4228362, at *8 (D.D.C. Sept. 4, 2019) (quotation marks and citation omitted).

In such a circumstance, this Court is not concerned about the evidence pertaining to

facts; rather, it must review and resolve the conflict between the parties regarding their

respective interpretations of the law. A court reviewing a question of law on cross-

motions for summary judgment decides the legal issues presented and grants summary

judgment to the party who, based on the court’s conclusions, is entitled to judgment as

a matter of law.

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

24 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.,

134 S. Ct. 2024, 2036 (2014) (noting that following precedent is “a foundation stone of

the rule of law”).

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, 135 S. Ct. 2401, 2409 (2015) (explaining that, under the doctrine of stare decisis,

“today’s Court should stand by yesterday’s decisions”). The vertical form of stare

decisis—as between higher and lower courts within the same jurisdiction—is well

known and generally accepted, but stare decisis also exists in horizontal form, and

applies to courts of equal rank that are within, or outside, the same jurisdiction. See

Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78

Notre Dame L. Rev. 1075, 1085–86 (2003). Notably, however, where a prior on-point

precedent is not binding, stare decisis doctrine does not compel a court to follow a prior

25 decision that it believes erroneous; in that circumstance the later court should confront

the prior case and “correct the error.” Gamble v. United States, 139 S. Ct. 1960, 1984

(2019) (Thomas, J., concurring); see also Hart v. Massanari, 266 F.3d 1155, 1170 (9th

Cir. 2001) (explaining that it would be “bad form to ignore contrary authority by failing

even to acknowledge its existence”). And while the stare decisis doctrine is “not an

inexorable command,” it generally is the “preferred course because it promotes the

evenhanded, predictable, and consistent development of legal principles, fosters

reliance on judicial decisions, and contributes to the actual and perceived integrity of

the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827–28 (1991).

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, 5 U.S. at 177, and into the realm of legislating what the law should be,

see Gamble, 139 S. Ct. at 1983 (Thomas, J., concurring) (asserting that “even common-

law judges did not act as legislators, inserting their own preferences into the law as it

developed”). Commentators have noted that such an unconstrained evolution in legal

decision-making can undermine faith in the judicial system by creating the impression

that judges are improperly enforcing their own “private sentiments” rather than working

within a structured system in which similarly situated parties are treated similarly. 1

William Blackstone, Commentaries *69. It might also result in the Judiciary

improperly enhancing its own powers to the detriment of the other branches. See

26 Murphy, supra, at 1101 (explaining that “[o]ne theme to be found in [the Framers’]

remarks is that adherence to precedent forestalls the accumulation of arbitrary power in

the courts—which is also a primary function of separation of powers”).

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

House 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

27 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, 188 F.2d 993, 999 (D.C. Cir. 1951) (explaining that

“[t]he function of the subpoena is to compel” the production of documents or the

provision of testimony). Moreover, because subpoenas operate by compulsion, an

authorized issuer of a valid subpoena also has the right to enforce the production

obligation that a subpoena creates, consistent with the law. See, e.g., Fairholme Funds,

Inc. v. Fed. Hous. Fin. Agency, No. 13-cv-1053, 2019 WL 5864595, at *2 (D.D.C. Nov.

8, 2019); BuzzFeed, Inc. v. U.S. Dep’t of Justice, 318 F. Supp. 3d 347, 364–65 (D.D.C.

2018).

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 1380s, 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”).

28 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, 216 F.R.D. 189, 194–96 (D.D.C. 2003) (granting a

motion to compel compliance with a subpoena where the material sought by the

subpoena was not privileged and the subpoena was not overbroad or issued for improper

purposes). These well-established rights and duties are, of course, what distinguishes a

subpoena from the requests for voluntary production of documents, testimony, or

tangible things that typically precede a the issuance of a subpoena.

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.

29 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, 2019 WL 5864595, at *2, and in the context of that lawsuit,

a federal judge determines various legal issues pertaining to the enforceability of the

subpoena and disputed scope of the required response. Common legal issues are those

that pertain to the validity of the subpoena—e.g., whether the issuer was actually

authorized to issue subpoenas, and whether this particular subpoena contains the

necessary terms to give rise to an enforceable duty to perform—and also the extent of

the recipient’s duty to respond. See, e.g., Truex v. Allstate Ins. Co., No. 05-mc-0439,

2006 WL 241228, at *1 (D.D.C. Jan. 26, 2006) (denying an issuer’s motion to compel

performance where the subpoena at issue was invalid); Weiss v. Mentor Corp., No. 92-

mc-0203, 1992 WL 235889, at *2 (D.D.C. July 10, 1992) (evaluating claim of attorney

work product privilege in the context of a motion to compel compliance with a

subpoena).

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

30 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., 292 F.R.D. 120, 129 (D.D.C. 2013) (granting in part

motion to compel compliance with a subpoena and requiring the corporations involved

to produce business records). Moreover, in deciding whether the subpoena-enforcement

claim at issue is properly before it, the court usually does not inquire as to whether or

not the subpoena’s issuer had other ways to get the requested information. Rather,

assuming that the subpoena-enforcement claim is properly before it (because a party

with standing seeks resolution of the subpoena dispute in the correct venue with respect

to an existing federal case), the court that is called upon to review a subpoena-

enforcement dispute resolves the legal issues that are raised by the claims presented.

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-

31 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, 1992 WL 235889, at *2 (considering a work-product privilege

objection to producing subpoenaed materials). The Constitution establishes other

privileges that can attach to prevent certain disclosures. See, e.g., United States Sec. &

Exch. Comm’n v. Brown, No. 09-cv-1423, 2010 WL 11602637, at *1–2 (D.D.C. Sept.

29, 2010) (evaluating whether production of documents would violate an individual’s

Fifth Amendment right against self-incrimination).

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

32 session of the House by one of its members in relation to the business before it.”

Gravel v. United States, 408 U.S. 606, 624 (1972) (internal quotation marks and citation

omitted).

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,

354 U.S. 178, 187–95 (1957); see also Eastland v. U. S. Servicemen’s Fund, 421 U.S.

491, 504–05 (1975); Barenblatt v. United States, 360 U.S. 109, 111–12 (1959); Quinn

v. United States, 349 U.S. 155, 160 (1955); Sinclair v. United States, 279 U.S. 263, 291

(1929), overruled on other grounds by United States v. Gaudin, 515 U.S. 506 (1995). 10

The duty of the recipient of a valid legislative subpoena to respond to that authorized

call of action for the good of the country is also indisputable. In this regard, the

Supreme Court has stated that “persons summoned as witnesses by competent authority

have certain minimum duties and obligations which are necessary concessions to the

public interest in the orderly operation of legislative and judicial machinery[,]” United

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 Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 708 (1926).

33 States v. Bryan, 339 U.S. 323, 331 (1950), and has further noted that the Court itself

has “often iterated the importance of this public duty, which every person within the

jurisdiction of the Government is bound to perform when properly summoned” id.

Indeed, the Supreme Court has specifically stated, in the most direct and eloquent

terms, that “[i]t is unquestionably the duty of all citizens to cooperate with the Congress

in its efforts to obtain the facts needed for intelligent legislative action. It is their

unremitting obligation to respond to subpoenas, to respect the dignity of the Congress

and its committees and to testify fully with respect to matters within the province of

proper investigation.” Watkins, 354 U.S. at 187–88. Thus, for all intents and purposes,

legislative subpoenas give rise to the same rights (i.e., the right to compel the

performance of another and the right of enforcement) and the same duties (i.e., the

obligation to respond in the absence of a privilege) that exist in the civil action context.

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, 940 F.3d at 721

(noting that, in response to a legislative request for information during the investigation

of “the Iran-Contra Affair, including the role of the President,” President Ronald

Reagan “declined to assert executive privilege, going so far as to furnish relevant

excerpts of his personal diaries to Congress” (internal quotation marks and citation

omitted)); see also Letter from Tobias Lear, Sec’y to the President, to Henry Knox,

Sec’y of War (April 4, 1792) (on file with the Library of Congress) (communicating to

34 Secretary Knox that he “will lay before the House of Representatives such papers, from

[his] department, as are requested by the enclosed resolution,” which empowered a

House committee “to inquire into the causes of the failure of the late expedition under

Major General St. Clair . . . [and] to call for such persons, papers, and records, as may

be necessary to assist their inquiries.”). Moreover, when disputes over congressional

subpoenas do arise, the conflict is typically resolved through negotiations between

House committee representatives and the person or persons to whom the subpoena is

directed—a process commonly known as “accommodation”—and, thus, committees of

Congress rarely have had to resort to the implementation of enforcement mechanisms.

See Mazars, 940 F.3d at 721 (“Presidents, too, have often been the subjects of

Congress’s legislative investigations, though fewer of these have required judicial

intervention”); see, e.g., id. at 721–22 ( “Thanks to a last-minute compromise between

the White House and the Senate, the courts were kept out of a dispute” over whether a

select committee investigating “the Whitewater land deal and related matters” during

the Clinton administration “could subpoena meeting notes taken by President Clinton’s

former lawyer”).

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, 354 U.S. at 216 (citing Anderson v. Dunn, 19 U.S. 204 (1821)). “[T]he long

dormant inherent contempt power permits Congress to rely on its own constitutional

35 authority to detain and imprison [one who defies a subpoena and is found in contempt]

until the individual complies with congressional demands.” See Todd Garvey,

Congressional Research Service, RL 34097, Congress’s Contempt Power and the

Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure 1

(May 12, 2017); see also id. at 10 (explaining that “[u]nder the inherent contempt

power[,] the individual is brought before the House or Senate by the Sergeant-at-Arms,

tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps

elsewhere”). Congress can also issue a contempt citation, and then certify this finding

to the Executive branch for potential criminal prosecution. See 2 U.S.C. §§ 192, 194.

DOJ has also traditionally accepted that a committee of Congress can rely on the

standard enforcement mechanism that is available to others who issue valid and legally

enforceable subpoenas: it can bring a civil action in federal court. See Response to

Cong. Requests for Info. Regarding Decisions Made Under the Indep. Counsel Act, 10

Op. O.L.C. 68, 87 (1986) (“The most likely route for Congress to take would be to file a

civil action seeking enforcement of the subpoena.”); see also Prosecution for Contempt

of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive

Privilege, 8 Op. O.L.C. 101, 137 & n.36 (1984).

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, 940 F.3d at 732–40 (assessing whether legislative subpoena was valid and

whether documents sought were relevant to the underlying congressional investigation);

36 Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 21–23 (D.D.C. 1994)

(evaluating whether compliance with a legislative subpoena would violate an

individual’s Fourth and Fifth Amendment rights).

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,

37 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

38 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

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).

39 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, 462 U.S. 919, 951 (1983); Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); Marbury, 5

U.S. at 176–77, this Court reiterates Miers’s well-sourced and thoroughly explained

bottom-line conclusion: that, as a matter of law, senior-level current and former

40 presidential aides, including White House Counsels, must appear before Congress if

compelled by legislative process to do so. This means that such aides cannot defy a

congressional subpoena on the basis of absolute testimonial immunity, even if the

President for whom they work (or worked) demands that response.

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, 558 F. Supp. 2d at 64. Miers also

rejected DOJ’s jurisdictional claim that “this dispute is not one traditionally thought to

be amenable to judicial resolution[,]” id. at 67, and that, therefore, the House’s

subpoena-enforcement claim should not be permitted to proceed, id. at 71–73. In this

regard, the Miers opinion stands for the proposition that courts have federal question

jurisdiction over subpoena enforcement disputes between the Legislature and the

Executive branch, and that such disputes are justiciable, regardless of the fact that the

other two branches of government occupy places on the opposite side of the “v” in the

case caption. This Court agrees with Miers’s analysis and conclusions for the reasons

that follow in this section of this Memorandum Opinion, as well as those in Part IV.B.

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

41 Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (explaining that “[a] plaintiff

properly invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under’

the Constitution or laws of the United States”) (citation omitted). Miers reasoned that a

claim by the Judiciary Committee that an Executive branch official “failed to comply

with duly issued congressional subpoenas” fits this category, because the House

“subpoena power derives implicitly from Article I of the Constitution[.]” Miers, 558 F.

Supp. 2d at 64. Judge Bates also observed that the D.C. Circuit had addressed the

question of the federal courts’ statutory subject-matter jurisdiction with respect to a

controversy similar to the one at issue in the Miers case (and here): a dispute over a

House committee’s issuance of a subpoena to AT & T concerning certain documents

that the company possessed in relation to an FBI wiretapping program. The Circuit had

conclusively determined that the federal courts have jurisdiction under 28 U.S.C.

§ 1331 because of the “fundamental constitutional rights involved[,]” AT & T I, 551

F.2d at 389, which was enough for Judge Bates to conclude that claims that the

Judiciary Committee made in the Miers case “arise[] under the Constitution for

purposes of § 1331[,]” Miers, 558 F. Supp. 2d at 64.

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, 2019 WL 5864595, at *2; BuzzFeed, Inc., 318 F. Supp. 3d at 364–65;

Truex, 2006 WL 241228, at *1; GFL Advantage Fund, 216 F.R.D. at 194–96; Weiss,

42 1992 WL 235889, at *2; see also Fed. R. Civ. P. 45. Thus, Courts appear to have

determined that these miscellaneous lawsuits that are filed for the purpose of seeking a

court order to enforce a subpoena, arise under federal law for the purpose of section

1331 where the underlying case is, itself, federal in nature. The Court concludes that

this same analysis concerning the applicability of section 1331 to the legal claim at

issue applies here. Thus, insofar as the Judiciary Committee’s power to issue

subpoenas “derives implicitly from Article I of the Constitution,” Miers, 558 F. Supp.

2d at 64, which it appears that DOJ does not contest, the subpoena-enforcement claim

that the Judiciary Committee has brought to this Court for resolution likewise arises

under the Constitution for the purpose of section 1331.

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]

43 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., 10 Op. O.L.C. 68, 87 n.31 (1986).

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, 979 F. Supp. 2d 1. In Holder, Judge Amy Berman Jackson first noted that

section 1365, on its face, did not apply to the dispute before it. See id. at 17

(explaining that “section 1365 specifically states that it does not have anything to do

with cases involving a legislative effort to enforce a subpoena against an official of the

executive branch withholding records on the grounds of a governmental privilege”).

She then went on to thoroughly evaluate the “chronology of events surrounding the

enactment of section 1365” and ultimately concluded that “the jurisdictional gap that it

was meant to cure was not a lack of jurisdiction over actions like this one” but rather

problems related to the amount-in-controversy requirements for federal jurisdiction that

were in place in the 1970s, which were first identified in a case involving enforcement

of a Watergate Senate subpoena, Senate Select Committee on Presidential Campaign

Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973), and follow-on issues related to

jurisdiction over suits against officers brought in their personal versus official

capacities, Holder, 979 F. Supp. 2d. at 18–19; see also id. (explaining that the

legislative history indicates that the language of section 1365 “‘is not intended to be a

Congressional finding that the Federal courts do not now have the authority to hear a

44 civil action to enforce a subpoena against an officer or employee of the Federal

government’” (alteration omitted) (quoting S. Rep. No. 95-170, at 91–92 (1977));

Response to Cong. Requests for Info. Regarding Decisions Made Under the Indep.

Counsel Act, 10 Op. O.L.C. at 87 n.31 (noting the same legislative history as support

for its conclusion the Legislature likely can enforce subpoenas against Executive branch

officials through a civil action).

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, 503 U.S. 249, 253 (1992) (quoting Wood v. United

States, 16 Pet. 342, 363 (1842)). Indeed, courts must be cautious when evaluating an

argument that a subsequently enacted statute, by implication and overlap, limits the

scope of jurisdiction that section 1331 confers, Mims v. Arrow Financial Servs., LLC,

565 U.S. 368, 383 (2012), particularly because Congress is well-aware of how to

expressly strip jurisdiction from federal courts, see EEOC v. Lutheran Social Servs.,

186 F.3d 959, 963 (D.C. Cir. 1999); I.A.M. Nat. Pension Fund Ben. Plan C. v. Stockton

TRI Indus., 727 F.2d 1204, 1209 (D.C. Cir. 1984). This Court’s adoption of holdings of

Miers and Holder is sufficient to explain why the Court rejects DOJ’s statutory subject-

matter arguments in this case.

45 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

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 noted 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.

46 at issue under the Constitution are based on “the Executive’s interest in ‘autonomy[,]’”

Miers, 558 F. Supp. 2d at 103, and that interest, in turn, “rests upon a discredited notion

of executive power and privilege[,]” id., as explained below. Consequently, none of

DOJ’s purported constitutional concerns about the exercise of jurisdiction by the

federal courts under the circumstances presented here is persuasive.

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, 379 F. Supp. 3d 8, 10 (D.D.C. 2019)), and that

“to preserve the independence and autonomy of all three co-equal branches, the

political branches must do battle in the political arena, not appeal to the Judiciary as a

superior branch of government for a definitive resolution” (Def.’s Mot. at 32; see also

id. at 35 (noting that, “even outside the context of disputes between the political

Branches, the House itself has questioned whether its demands for information are ever

justiciable”); id. at 41 (arguing that “[t]he process of negotiation and accommodation

protects the political branches from excessive judicial interference and the Judiciary

from the undue politicization and risk to its long-term independence”)). Whatever the

scope or scale of the other inter-branch disputes that DOJ is referencing with this

argument, this assertion is plainly misplaced with respect to the instant action, since, as

noted above, a subpoena-enforcement dispute is not a “political” battle at all. Instead,

claims regarding the enforceability of a subpoena raise garden-variety legal questions

47 that the federal courts address routinely and are well-equipped to handle. See Miers,

558 F. Supp. 2d at 71.

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 “political 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, 558 F. Supp. 2d at 71.

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

48 claims that are presented, not on the identity of the parties. See Freedom from Religion

Found., Inc. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011) (“[I]n federal-question

cases, the identity of the parties is irrelevant and the district court’s jurisdiction is

grounded in the federal question(s) raised by the plaintiff.”); Teamsters, Chauffeurs,

Warehousemen & Helpers, Local 764 v. Greenawalt, 880 F. Supp. 1076, 1081 (M.D.

Pa. 1995) (“Rarely, if ever, does the existence or non-existence of federal question

jurisdiction turn on the identity of the parties to the lawsuit.”). And the Supreme Court

has specifically confirmed that not all legal claims that impact the political branches are

properly deemed non-justiciable political questions. See, e.g., Zivotofsky ex rel.

Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (explaining that, although the legal

claim at issue implicated the political status of Jerusalem as the capital of Israel,

“Zivotofsky requests that the courts enforce a specific statutory right. To resolve his

claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct,

and whether the statute is constitutional. This is a familiar judicial exercise.”); see also

Chada, 462 U.S. at 942 (explaining that “the presence of constitutional issues with

significant political overtones does not automatically invoke the political question

doctrine” and that “[r]esolution of litigation challenging the constitutional authority of

one of the three branches cannot be evaded by the courts because the issue have

political implications”). Put another way, for the purpose of evaluating subject-matter

jurisdiction, standard legal claims do not automatically transform into non-justiciable

policy decisions just because they concern a political entity.

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

49 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, 551 F.2d at 389. The D.C. Circuit specifically

acknowledged that, like one of the Watergate cases that had proceeded it, the lawsuit

“present[ed] a clash of congressional subpoena power and executive privilege.” Id. at

390 (referencing Senate Select Committee on Presidential Campaign Activities v. Nixon,

498 F.2d 725 (D.C. Cir. 1974) and United States v. Nixon, 418 U.S. 683 (1974)). The

panel nonetheless determined that the federal courts have subject-matter jurisdiction

over the conflict under 28 U.S.C. § 1331, and it also expressly noted that the issue

presented in the case—i.e., the enforceability of a House subcommittee’s subpoena

seeking certain documents relating to a warrantless wiretapping program—was a fully

justiciable one. Id. at 389–91. Significantly for present purposes, the Circuit observed

that, “at a minimum, the mere fact that there is a conflict between the legislative and

executive branches over a congressional subpoena does not preclude judicial resolution

of the conflict. United States v. Nixon . . . resolved an analogous conflict between the

executive and judicial branches and stands for the justiciability of such a case.” Id. at

390 (citing United States v. Nixon, 418 U.S. 683). In the wake of the AT & T I

decision, DOJ’s insistence that the instant dispute over the enforceability of the House’s

legislative subpoena is not of the type of claim that the federal courts can resolve

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 551 F.2d at 385. The Executive branch interceded by directing AT & T—“as an agent of the United States”—to refuse to comply with the subpoena. Id. at 387. When it appeared that AT & T would, in fact, comply despite this command from the President, DOJ filed suit against AT & T, and the chairman of the House subcommittee that issued the subpoena was permitted to intervene as a defendant. Id.

50 without doing violence to the Constitution (Def.’s Mot. at 32–33) cannot be

sustained. 14

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-related 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

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.)

51 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, 354 U.S. 178 (1957), Chief Justice Earl

Warren tells a detailed and remarkable story of the legislative power of inquiry as it

existed in seventeenth century England, and in particular, of Parliament’s “broad and

varied use of the contempt power” to enforce its own mandates, as well as its

reservation unto itself of “absolute and plenary authority over . . . privileges[,]” id. at

188. Fatefully, and importantly, the Houses of Parliament expressly decided that

“judicial review of the exercise of the contempt power or the assertion of privilege”

would be “precluded[,]” id. at 188. And apparently as a direct consequence of

Parliament’s determination “that no court had jurisdiction to consider such questions[,]”

the unreviewable contempt power that Parliament had claimed was, predictably,

“abused.” Id. at 188, 189.

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

52 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, 103 U.S. 168 (1881), in which the Supreme Court

found, in 1881, that “the House had . . . exceeded the limits of its own authority” when

it initiated an inquiry that was judicial, and not legislative, in nature); see also Mazars,

940 F.3d at 718–21 (describing at length a series of cases throughout history in which

the Supreme Court adjudicated challenges to legislative subpoenas issued by Congress).

Watkins also touched upon the fact that the Supreme Court had previously considered

the competing interests of the Executive and the Legislature with respect to subpoenas

pertaining to legislative investigations, and had suggested caution with respect to the

merits of claims that the Congress had overstepped its bounds, given “the danger to

effective and honest conduct of the Government if the legislature’s power to probe

corruption in the executive branch were unduly hampered.” Id. at 194–95 (first citing

McGrain, 273 U.S. at 194–95, and then Sinclair, 279 U.S. at 263). This, too, indicates

that the Supreme Court’s primary concern about the exercise of judicial authority was

that judges might be too aggressive concerning the remedies they ordered with respect

to adjudicating challenges to compelled congressional process, not that the federal

courts lacked the authority to even entertain such claims.

Consequently, DOJ’s present suggestion that the history of our constitutional

Republic simply does not contemplate that the other branches of government would

53 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

54 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, 354 U.S. at 193 (emphasis added).

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, 354 U.S. at 187. Moreover, it was

55 uncontroversial that Congress’s investigatory authority “encompasses inquiries

concerning the administration of existing laws as well as proposed or possibly needed

statutes”; that “[i]t includes surveys of defects in our social, economic or political

system for the purpose of enabling the Congress to remedy them”; and that it also

“comprehends probes into departments of the Federal Government to expose corruption,

inefficiency or waste.” Id. Thus, rather than shedding light on the accepted scope of

the federal courts’ authority to resolve inter-branch disputes over compelled

congressional process, the absence of recorded federal cases concerning the myriad

“clashes between the two political Branches over congressional attempts to obtain

testimony” that DOJ’s brief identifies (Def.’s Mot. at 34) better supports the far less

sensational conclusion that, with respect to legislative subpoena fights, the Executive

branch wisely picked its battles.

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

56 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. Committee 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

57 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, 2019 WL 5485221 (D.D.C. Oct. 25, 2019), appeal docketed, No. 19-5288

(D.C. Cir. Oct. 28, 2019) (hereinafter In re Application for Grand Jury Materials).

Pending on appeal in the D.C. Circuit is a ruling concerning an application that the

Judiciary Committee submitted to the Chief Judge of this Court, requesting that grand

jury information in DOJ’s possession concerning the Mueller Report be released to the

Committee, over DOJ’s objection. (The Committee had previously sent a subpoena to

Attorney General William Barr requesting the information, but that legislative

command was ignored.) Chief Judge Howell issued a Memorandum Opinion and Order

granting the Committee’s request for all of the portions of the Mueller Report that had

been redacted to preserve grand jury secrecy and any underlying transcripts or exhibits

referenced in the redactions. Id. at *38. DOJ proceeded to seek an emergency stay of

Chief Judge Howell’s ruling in the D.C. Circuit. See Emergency Mot. for Stay Pending

Appeal (“DOJ Stay Br.”), In re Application of Comm. on Judiciary, U.S. House of

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, 940 F.3d 710 (D.C. Cir. 2019), 2019 WL 3714770, at *1–2.

58 Representatives, for an Order Authorizing Release of Certain Grand Jury Materials,

No. 19-5288 (D.C. Cir.).

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, 2019 WL 5485221, at *28, and Mazars, 940 F.3d at 714.

And any differences between the instant case and the case on appeal before the Circuit

appear to relate simply and solely to the merits of the parties’ respective legal

arguments regarding the enforceability of the House’s mandate that the information be

59 disclosed. 16 Such differences have nothing to do with the threshold question of the

court’s constitutional power to entertain the House’s legal claim that it is entitled to

access the requested (or subpoenaed) information over the Executive branch’s

objection; therefore, one would expect that DOJ’s jurisdictional position would not

vary.

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, 17 F. Cas. 144, 148 (C.C.D.

Md. 1861) (Taney, C.J.) (holding that Congress, and not the President, can suspend the

writ of habeas corpus); see also Bowsher v. Synar, 478 U.S. 714 (1986) (evaluating

whether Congress improperly assigned executive powers to the Comptroller General);

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 2019 WL 5485221, at *11. Rule 6(e) is not a source of authority in the case at bar. In addition, the Committee’s grand jury document request concerns materials that are purportedly protected from disclosure under Rule 6(e), while, in the instant case, the President has invoked executive privilege on the grounds that McGahn has absolute testimonial immunity. Both of these distinctions pertain to the merits issues in these cases, not to the Court’s subject-matter jurisdiction.

60 Chadha, 462 U.S. at 919 (considering whether the House could veto an Executive

branch deportation order); Nixon v. Sirica, 487 F.2d 700, 715 (D.C. Cir. 1973)

(“Throughout our history, there have frequently been conflicts between independent

organs of the federal government, as well as between the state and federal governments.

When such conflicts arise in justiciable cases, our constitutional system provides a

means for resolving them—one Supreme Court.”). DOJ must also face at least two

other inconvenient facts: the widely accepted contentions that (1) the Constitution of

the United States empowers each branch of the federal government to be a check upon

the others, and (2) the Judiciary’s constitutional check is the power to tell the other

branches what the law is. See Chada, 462 U.S. at 962–63; Buckley, 424 U.S. at 121–23;

Marbury, 5 U.S. at 177. The Supreme Court has never suggested that the Judiciary has

the power to perform its constitutionally assigned function only when it speaks to

private citizens, or when it is called upon to resolve a legal dispute between a private

citizen and one of the branches of government. And DOJ’s odd idea that federal courts’

indisputable power to adjudicate questions of law evaporates if the requested

pronouncement of law happens to occur in the context of a dispute between branches

appears nowhere in the annals of established constitutional law.

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:

61 [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 the 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

62 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, 17 F. Cas. at 148 (holding that, by

suspending the writ of habeas corpus, “the president has exercised a power which he

does not possess under the Constitution,” and sending the ruling to the President “in

order that he might perform his constitutional duty, to enforce the laws, by securing

obedience”); see also Marbury, 5 U.S. at 177. In the seminal case of Buckley v. Valeo,

424 U.S. 1 (1976), the Supreme Court further observed that, while “the men who met in

Philadelphia in the summer of 1787 were practical statesmen, experienced in politics,

who viewed the separation of powers as a vital check against tyranny[,] . . . they

likewise saw that a hermetic sealing off of the three branches of Government from one

another would preclude the establishment of a Nation capable of governing itself

effectively.” Id. at 121; see also Youngstown, 343 U.S. at 635 (Jackson, J., concurring)

(“While the Constitution diffuses power to better secure liberty, it also contemplates

that practice will integrate the dispersed powers into a workable government. It enjoins

upon its branches separateness but interdependence, autonomy but reciprocity.”). And

where, as here, the Executive branch and the Legislature are at loggerheads over an

63 issue of law that the courts are well-equipped to decide, the notion that the Judiciary

loses its established authority to say what the law is seems implausible. It is far more

likely that the better view of constitutional separation-of-powers principles is that they

deem the exercise of judicial authority with respect to the dispute at issue even more

important, if not crucial, for the continued functioning of the government.

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, 132 S. Ct. at 1432 (Sotomayor, J.,

concurring) (explaining that judicial forbearance is required in “circumstances in which

a dispute calls for decisionmaking beyond courts’ competence”). Likewise, there is a

separation-of-powers violation if the Judiciary proceeds when the Constitution itself

expressly vests the power in another branch of government to decide the issue in

question. See id. at 1431 (“When a case would require a court to decide an issue whose

resolution is textually committed to a coordinate political department . . . abstention is

warranted because the court lacks authority to resolve that issue.”); see also, e.g., Nixon

v. United States, 506 U.S. 224 (1993) (holding that a claim regarding the validity of a

Senate impeachment rule was non-justiciable because the Constitution vests the Senate

with the sole power to try impeachments). In these narrow circumstances, the Judiciary

64 plainly transgresses the boundaries of its constitutional authority, either because it has

entertained a claim that does not raise a legal issue and thus was never in its province to

decide, or because it has undertaken to decide certain claims despite a direct

constitutional command to desist. Neither is the case with respect to the subpoena-

enforcement claims at issue here, as the Court’s previous discussion plainly establishes.

(See supra Part IV.A.2.a.) 17

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

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.

65 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, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“The doctrine of the

separation of powers was adopted by the convention of 1787 not to promote efficiency

but to preclude the exercise of arbitrary power. The purpose was not to avoid friction,

but, by means of the inevitable friction incident to the distribution of the governmental

powers among three departments, to save the people from autocracy.”)

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

66 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

18 Of course, any protestation would be futile, since this broad power of Congress is well established. See, e.g., McGrain, 273 U.S. at 174; Mazars, 940 F.3d at 722–23.

67 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, 521 U.S. 811 (1997). (Def.’s Mot. at 37–38; see also id. (declaring

that the Judiciary Committee’s stake in the instant litigation is “deficient” for standing

purposes because “[t]he sole injury arguably stated by the Committee is a theoretical

impairment of the House’s ability to evaluate proposed articles of impeachment;

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, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (internal quotation marks and citations omitted); see also Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (“To ensure that the Federal Judiciary respects the proper—and properly limited—role of the courts in a democratic society, a plaintiff may not invoke federal-court jurisdiction unless he can show a personal stake in the outcome of the controversy.”) (internal quotation marks and citations omitted). And one of the requirements to demonstrate Article III standing is that “the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted).

68 proposed legislation concerning election security, campaign finance, and other issues;

and the adequacy of safeguards to protect the integrity of investigatory matters referred

by the Special counsel to other components of the Department of Justice (a matter

purportedly implicating the Committee’s ‘oversight’ responsibilities)” (citations

omitted)).)

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; indeed, 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, 87 F.3d 1161, 1165 (10th Cir.

69 1996) (finding a concrete, particularized, and actual injury where a Colorado ethics rule

requires prosecutors to obtain judicial approval of any subpoena that seeks to compel an

attorney to testify before a grand jury about a client); see also United States v. Supreme

Court of N.M., 839 F.3d 888, 899 (10th Cir. 2016) (reaching the same conclusion with

respect to similar New Mexico ethics rule), cert. denied, 138 S. Ct. 130 (2017). And

the D.C. Circuit implicitly suggested that interference with an agency’s right to compel

compliance by subpoena is an injury that must be remedied, at least in the

administrative context, when it held that courts “must enforce” an agency’s subpoena so

long as “‘the inquiry is within the authority of the agency, the demand is not too

indefinite[,] and the information sought is reasonably relevant.’” Resolution Tr. Corp.

v. Thornton, 41 F.3d 1539, 1544 (D.C. Cir. 1994) (quoting United States v. Morton Salt

Co., 338 U.S. 632, 652 (1950)). If the creation of hurdles to the issuance of

prosecutorial subpoenas is a cognizable Article III injury, and if courts have no choice

but to recognize Article III standing for those who seek to enforce reasonable

administrative subpoenas, it would seem that the law is sufficiently clear that outright

defiance of any duly issued subpoena, including the subpoena that the Judiciary

Committee issued to McGahn, qualifies as a concrete, particularized, and actual injury

for standing purposes.

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

70 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, 290 U.S. 534, 545

(1934).

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, 273 U.S. at 174, which the House and the Senate may

delegate to their respective committees and subcommittees, and this power is an

“integral part” of the legislative and impeachment authority. Eastland, 421 U.S. at 505;

see also Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 499 (1977). Additionally, the

Supreme Court has recognized that “where the legislative body does not itself possess

the requisite information—which not infrequently is true—recourse must be had to

others who do possess it.” McGrain, 273 U.S. at 175. It specifically observed that

“[e]xperience has taught that mere requests for such information often are unavailing,

and also that information which is volunteered is not always accurate or complete; so

71 some means of compulsion are essential to obtain what is needed.” Eastland, 421 U.S.

at 504–05.

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, 339 U.S. at 331. “If that were the case, then, indeed, the great power of

testimonial compulsion, so necessary to the effective functioning of courts and

legislatures, would be a nullity.” Id. (emphasis added).

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

20 Thus, the “particularized” injury requirement, Lujan, 504 U.S. at 560, is satisfied. Pursuant to the House of Representative’s authority to “determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, the House has empowered the Judiciary Committee to “conduct at any time such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities,” House Rule XI.1(b)(1). Moreover, the Judiciary Committee has been authorized “to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary.” House Rule XI.2(m)(1)(B). The Judiciary Committee alleges that the McGahn subpoena was issued pursuant to this authority. (See Compl. ¶¶ 71–72.) Therefore, his defiance of the Committee’s subpoena, “affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. It is the House of Representative’s particular constitutional rights, privileges, and duties that are being denied.

72 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

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 immaterial 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,

73 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,

504 U.S. at 561 (explaining that, at the pleading stage, allegations regarding standing

are treated in the same manner as all other factual allegations and must be accepted as

true). Furthermore, although a heightened evidentiary standard applies to standing

arguments made in the context of cross-motions of summary judgment, see id.; see also

Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 (D.C. Cir. 2015), the

Judiciary Committee has submitted affidavits and exhibits to substantiate their

allegations that McGahn has impeded their investigation (see Berke Decl; Tatelman

Decl.), and DOJ does not appear to contest that the Muller Report did, in fact, contain

the findings that the Judiciary Committee alleges, or that the Committee has, in fact,

ECF No. 32-2, ¶¶ 6–68 (maintaining that the Mueller Report itself provides the “complete and accurate statement of its contents” and that the Judiciary Committee’s recitation of its contents “is not a material fact under Fed. R. Civ. P. 56(c)”).

74 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 Judiciary 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 standpoint 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

75 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, 521 U.S. at 814–17. The

plaintiffs claimed that they had been injured by the possible future “dilution of

institutional legislative power[,]” id. at 826, which is a completely different type of

injury than the harm to established constitutional investigatory rights at issue here.

Moreover, the members of Congress in Raines invoked a generalized injury; in fact,

they specifically declared that their injury was the “loss of a political power” that

affected the entire institution of Congress “not the loss of any private right.” Id. at 821.

And rather than pointing to a concrete harm that resulted from enactment of the

legislation, the plaintiffs claimed that the Line Item Veto Act had injured them by

“alter[ing] the legal and practical effect of [their] votes.” Id. at 836 (quotation marks

and citation omitted). The Supreme Court’s conclusion that there was no standing to

sue under those circumstances is, thus, entirely inapposite to the claims that the

Judiciary Committee brings today. See also Mnuchin, 379 F. Supp. 3d at 17–18 (noting

that “informational injuries to Congress arise ‘primarily in subpoena enforcement

cases,’ which hold that the legislature ‘has standing to assert its investigatory power.’”

76 (quoting U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76

(D.D.C. 1998)). 22

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, 558 F. Supp. 2d at 94; see also Holder, 979 F. Supp. 2d at 22. This is

because the Supreme Court has long recognized that the Legislative branch is not only

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. 230 F. Supp. 2d at 57–58. The Comptroller General sought to obtain withheld documents in order to “aid Congress in considering proposed legislation.” Id. at 66–67. But, the district court held, the alleged injury to the House’s “general interests in legislating and oversight” was “too vague and amorphous to confer standing.” That was because Congress itself had “undertaken no effort to obtain the documents at issue, . . . no committee had requested the documents, and no congressional subpoena ha[d] been issued.” Id. at 67– 68. In addition, “the Comptroller General here has not been expressly authorized by Congress to represent its interests in this lawsuit.” Id. Hence, “an injury with respect to any congressional right to information remain[ed] wholly conjectural or hypothetical.” Id. (internal citations and quotations omitted).

77 vested with the broad power to conduct investigations under Article I of the

Constitution, but it also has “an implied right to compel compliance with that

investigative power.” Miers, 558 F. Supp. 2d at 90. Consistent with this Court’s

observations about the legal significance of subpoena power more generally (see supra

Part III.C), Miers explains that “[t]he exercise of Congress’s investigative ‘power,’

which the Executive concedes that Congress has, creates rights,” Miers, 558 F. Supp. 2d

at 91, and that “by utilizing its power to issue subpoenas and proceed with an

investigation via compulsory process, Congress creates a legal right to the responsive

information that those subpoenas will yield[,]” id.

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, 273 U.S. 135 (1927), the Supreme Court stated

unequivocally that “the power of inquiry—with process to enforce it—is an essential

and appropriate auxiliary to the legislative function.” McGrain, 273 U.S. at 174. Thus,

it is the precedent of this district, as established in both Miers and in Committee on

Oversight & Government Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), that the

powers provided to Congress in Article I of the Constitution necessarily include the

“right to further an investigation by issuing subpoenas and enforcing them in court[.]”

Holder, 979 F. Supp. 2d at 22.

Past precedents also dispose of DOJ’s contention that just because Article I does

not expressly mention the right of a committee of Congress to enforce its subpoena

power in court means that the courts are now implying that the Constitution contains

78 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, 273 U.S. at 174, DOJ cannot seriously maintain that the power to enforce

legislative subpoenas is not among these intrinsic rights. It also cannot be seriously

debated that “‘the judiciary is clearly discernible as the primary means through which

constitutional rights may be enforced’” Miers, 558 F. Supp. 2d at 88 (alternations

omitted) (quoting Davis v. Passman, 442 U.S. 228, 242 (1979)); see also Bolling v.

Sharpe, 347 U.S. 497 (1954) (finding that the district court had erred in dismissing a

suit seeking equitable relief brought directly under the Fifth Amendment, based on

alleged race discrimination in school admissions); Jacobs v. United States, 290 U.S. 13,

15 (1933) (permitting a plaintiff to bring suit directly under the Fifth Amendment based

on allegations that the United States had taken his property for public use without just

compensation). Thus, DOJ’s strident contention that “the [Judiciary] Committee must

also show that Congress has authorized a cause of action to litigate the Committee’s

79 claimed right to compel Mr. McGahn’s testimony” (Def.’s Mot. at 52) is plainly

meritless. 23

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, 558 F. Supp. 2d at 78–88; Holder, 979 F. Supp. 2d at 22.

This Court, too, concludes that the Judiciary Committee has satisfied the three

established elements for seeking a declaration of rights under this statute: (1) it has

established “a case of actual controversy”; (2) it has invoked an “independent basis for

federal jurisdiction”; and (3) it has filed an “appropriate pleading.” Miers, 558 F. Supp.

2d at 79 (internal quotation marks and citation omitted); see also id. at 81–82 (holding

that where the Constitution creates a right, a plaintiff can use the Declaratory Judgment

Act to vindicate that right); Holder, 979 F. Supp. 2d at 22 (finding that the House

23 Reed v. County Commissioners of Delaware County, Pa., 277 U.S. 376 (1928), which DOJ cites here, is not to the contrary. DOJ characterizes that opinion as holding “that a committee’s power to issue subpoenas does not itself include the power to bring suit to enforce a subpoena in federal court” (see Def.’s Mot. at 52), but coming just months after the Court had held in McGrain that legislative subpoenas are an enforceable right of Congress, and given that Reed involved individual Senators who had filed suit to compel compliance with a Senate subpoena under circumstances in which those individual plaintiffs had not been authorized to sue on behalf of Congress, it is stretch to interpret the Supreme Court’s statement that the suit was not “authorized by law” to stand for the proposition that, if Congress authorizes a committee to file a subpoena-enforcement lawsuit, that committee still has no cause of action to sue. Similarly unavailing is DOJ’s reliance on Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) and Ziglar v. Abbassi, 137 S. Ct. 1843 (2017). (See Def.’s Mot. at 53.) Both of those cases involved inferring private rights of actions for damages for violations of constitutional rights under Bivens v. Six Unkown Fed. Narcotics Agents, 403 U.S. 388 (1971), an area in which the Supreme Court has traditionally urged particular caution and deference to Congress, based on separation of powers concerns. See Jesner, 138 S. Ct. at 1402 (finding that courts must defer to Congress regarding the creation of a damages remedy “if there are sound reasons to think Congress might doubt the efficacy or necessity” of such a remedy). No such concerns are present here—indeed far from it— because the Constitution conveys (and thus necessarily endorses) the power of inquiry, and Judiciary Committee seeks only declaration and an injunction to vindicate its constitutional rights. See Miers, 558 F. Supp. 2d at 89 (“This is not a damages action. Thus, Bivens and its progeny are not strictly on point.”).

80 Committee “is not looking to the Declaratory Judgment Act as the source of the right it

is seeking to vindicate in this Court, but rather as the source of the mechanism to

achieve the vindication of a right derived elsewhere”). That is all the law requires.

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

81 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 court 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, 520 U.S. 681, 701 (1997)

(finding that “there is no suggestion that the Federal Judiciary is being asked to perform

any function that might in some way be described as ‘executive.’ Respondent is merely

asking the courts to exercise their core Article III jurisdiction to decide cases and

controversies”).

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

82 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, 379 F. Supp. 3d at 22, is irrelevant. The elements that courts must

consider to determine whether a plaintiff has Article III standing are well established

(see supra n.19), and they do not include a “last resort” requirement. To the extent that

federal courts have exercised their equitable powers to stay their own consideration of

matters that are otherwise ripe for judicial review, it appears that they have done so in

the relatively unusual circumstance in which the parties are on the brink of reaching a

negotiated resolution of the conflict, see, e.g., AT & T I, 551 F.2d at 394, or in the

context of evaluating the justiciability of the plaintiff’s claim under the political

question doctrine; the latter ordinarily involves assessing the series of factors that the

Supreme Court prescribed in Baker v. Carr¸ 369 U.S. 186, 217 (1962), see also

Zivotofsky, 132 S. Ct. at 1432 (Sotomayor, J., concurring) (explaining that “the final

83 three Baker factors address circumstances in which prudence may counsel against a

court’s resolution of an issue presented”). DOJ has disavowed the possibility that the

parties here will settle (see Def.’s Accommodation Resp. at 2), and a quick review of its

briefs indicates that it has not engaged with the Baker factors at all.

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

84 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, 379 F. Supp. 3d at 12; see also id. at 10 (“This is a case

about whether one chamber of Congress has the ‘constitutional means’ to conscript the

Judiciary in a political turf war with the President over the implementation of

legislation.”). Notably, the Mnuchin case can be, and most likely should be, read to

stand for the much more modest contention that the House had failed to satisfy the well-

established injury-in-fact standing requirement, because the harm that it alleged was not

a cognizable injury. See id. at 13 (“The Administration concedes, and the Court agrees,

that only the first prong of the standing analysis—injury that is concrete and

particularized—is at issue here. Applying the ‘especially rigorous’ analysis required,

the Court finds that the House has failed to allege such an injury. So the Court must

deny the House’s [preliminary injunction] motion.” (internal citation omitted)).

Furthermore, in this regard, the Mnuchin case helpfully and specifically distinguished

85 “the supposed harm to Congress’ Appropriations power[,]” id. at 16, from the harm to

Congress’ well founded investigatory interests, id. at 17, which is what the Judiciary

Committee alleges in the instant case (see Pl’s Mem. at 34–35). But if the essential

holding of Mnuchin is that “[t]he Committee lacks standing foremost because centuries

of historical practice show that the injury the Committee claims is not one traditionally

deemed capable of redress through judicial process[,]” as DOJ suggests (Def.’s Mem. at

32 (citation omitted)), then this Court believes its holding is erroneous.

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, 521 U.S. at 826).) DOJ argues (and Mnuchin appears to accept) that

Raines “teaches that in evaluating whether a suit between the political Branches is

justiciable, a federal court must evaluate whether such a suit is consistent with

historical practice.” (Def.’s Mem. at 32.) A review of Supreme Court case law in the

more than two decades since Raines was decided casts doubt on DOJ’s conclusion that

Raines’s historical overview was the primary determinant of the Supreme Court’s

holding there that the patently amorphous harm that the plaintiffs had alleged was not a

cognizable injury. But even if Raines implicitly amended the Supreme Court’s

traditional Article III standing criteria to include an historical-practice element when a

plaintiff’s injury is assessed for the purpose of determining standing, in this Court’s

view, that element cannot be satisfied based solely on the fact that there are few

86 recorded cases in which that particular injury was previously claimed. As demonstrated

above, a dearth of similar case law could just as easily be interpreted to mean that the

political branches have typically been able to find other acceptable ways to resolve their

disputes, and thus have avoided litigation. (See Part IV.A.2.b.) In other words, where

the historical record shows that disputes between the Executive branch and the

Legislature concerning the claimed injury are typically resolved through negotiation,

the lack of prior cases says nothing about the capability of resolving those kinds of

legal issues in the courts.

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, 2019 WL 5092396 (W.D. Tex. Oct. 11, 2019)

(rejecting the Executive branch argument that transferring funds for border wall

construction from congressional appropriations made for other purposes is lawful); City

87 of Philadelphia v. Attorney Gen. of United States, 916 F.3d 276 (3d Cir. 2019), reh’g

denied (June 24, 2019) (holding that Executive branch withholding of a congressional

law enforcement grant because the City failed to comply with certain conditions that

required greater coordination with federal officials on matters of immigration

enforcement exceeded the authority granted to the Attorney General by Congress). This

reality plainly limits the lessons that can properly be drawn from history. It also

renders unpersuasive DOJ’s assertion that, based on the branches’ lengthy track record

of negotiated resolutions, today’s Judiciary Committee should be deemed to lack

standing to protect its vital interests in the courts. In this Court’s view, the fact that

federal courts throughout history have not had occasion to address the kinds of

perceived threats to constitutional and procedural norms that are being brought to

federal courts’ attention regularly in the present day actually says more about the

unprecedented nature of the challenged actions and legal positions of the Executive

branch than it does about the nature of the Judiciary Committee’s claim or harm.

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, 558 F. Supp. 2d at 68–

78. And that case further noted that “the [Supreme] Court has never held that an

institution, such as the House of Representatives, cannot file a suit to address an

institutional harm.” Id. at 70. No interim developments have changed the status of the

88 law. Additionally, upon review of the Supreme Court’s past jurisprudence on the

matter, this Court found the following quote that renders dubious the standing and

cause-of-action arguments that DOJ presses now: “Without the power to investigate—

including of course the authority to compel testimony, either through its own processes

or through judicial trial—Congress could be seriously handicapped in its efforts to

exercise its constitutional function wisely and effectively.” Quinn v. United States, 349

U.S. 155 (1955).

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

89 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, 558 F. Supp. 2d at 106.

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

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.

90 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, 354 U.S. 187–88. Regardless, Miers is precedential with respect to the merits

of DOJ’s assertion that absolute testimonial immunity shields senior-level presidential

aides, because Judge Bates squarely confronted the issue of whether the law permits the

legal duty that arises when a senior-level presidential aide receives a legislative

subpoena to be, in essence, canceled by the President.

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, 339 U.S. 323

(1950), in which “[t]he Supreme Court has made it abundantly clear that compliance

with a congressional subpoena is a legal requirement.” Id. (citing Bryan, 339 U.S. at

91 331). 25 The Miers court next explained how, in Harlow v. Fitzgerald, 457 U.S. 800

(1982)—a case in which senior White House aides had been sued for civil damages—

the Supreme Court had “virtually foreclosed” the argument that senior-level White

House aides were entitled to absolute testimonial immunity. Miers, 558 F. Supp. 2d at

100–01. This was because, according to Miers, Harlow had concluded that such aides

were, at best, entitled to qualified immunity, notwithstanding the fact that “absolute

immunity [for civil damages] extended to legislators, judges, prosecutors, and the

President himself[.]” Id. at 100; see also id. (noting that, in Harlow, “the Supreme

Court rejected the analogy to legislative aides that the Executive now invokes here”). 26

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, 418 U.S. at 707–08, holds that the President “may only be entitled to a

presumptive, rather than an absolute, privilege[,]” and it would be manifestly

inconsistent with the Supreme Court’s holding in that regard to accord presidential

aides a “superior card of immunity.” Miers, 558 F. Supp. 2d at 103. Judge Bates also

noted that, in Clinton v. Jones, 520 U.S. 681 (1997), “then-Chief Justice Rehnquist

joined in the holding that even the demands of the President’s schedule could not

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, 558 F. Supp. 2d at 99 (quoting Bryan, 339 U.S. at 33) (internal quotation marks omitted). 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, 408 U.S. 606 (1972), to senior-level presidential aides who worked in the White House. 457 U.S. at 809–11. Like DOJ in this case (and in Miers), the argument on the table was that senior-level presidential aides should be deemed to have the absolute immunity from civil damages that the law confers to their boss. Id. at 808. As Miers pointed out, the Harlow Court rejected that argument. Id. at 813.

92 relieve him of the duty to give a civil deposition.” Miers, 558 F. Supp. 2d at 104

(citing Clinton, 520 U.S. at 706). And based on this key holding, Judge Bates pointed

out that “[i]f the President must find time to comply with compulsory process in a civil

lawsuit, so too must his senior advisors for a congressional subpoena.” Id. at 105.

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, 487 F.2d 700 (D.C. Cir. 1973). There, in the context of a case

involving the enforcement of a grand jury subpoena duces tecum served on the

President, the Circuit specifically asserted that, “[i]f the claim of absolute privilege was

recognized, its mere invocation by the President or his surrogates could deny access to

all documents in all the Executive departments to all citizens and their representatives,

including Congress, the courts as well as grand juries, state governments, state officials

and all state subdivisions.” Sirica, 487 F.2d at 715; see also id. (noting that, if absolute

immunity existed, “[t]he Freedom of Information Act could become nothing more than

a legislative statement of unenforceable rights[,]” and cogently concluding that

“[s]upport for this kind of mischief simply cannot be spun from incantation of the

doctrine of separation of powers”). And Judge Bates ably reasoned that “[t]hat passage

rather plainly contemplates that executive privilege is not absolute even when

Congress—rather than a grand jury—is the party requesting the information.” Miers,

558 F. Supp. 2d at 103.

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

93 Attorney General Steven Bradbury, respectively.” Id. at 104 (citing Assertion of

Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1 (1999);

Immunity of the Former Counsel to the President From Compelled Congressional

Testimony, 31 Op. O.L.C. 191 (2007)). Miers explained that because “[t]hose opinions

conclude that immediate advisors to the President are immune from compelled

congressional testimony[,] [t]he question, then, is how much credence to give to those

opinions.” Id. Ultimately, Miers determined that the opinions were not persuasive,

largely because “[n]either cites to a single judicial opinion recognizing the asserted

absolute immunity.” Id. Furthermore, “the three-page Bradbury OLC opinion was

hastily issued on the same day that the President instructed Ms. Miers to invoke

absolute immunity, and it relies almost exclusively upon the conclusory Reno OLC

opinion and a statement from a memorandum written by then-Assistant Attorney

General William Rehnquist in 1971.” Id.

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

94 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

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.

95 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.

96 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, 558 F. Supp. 2d at 106. Consequently, its statement of the law is “entitled to

only as much weight as the force of [its] reasoning will support.” Id. at 104.

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

97 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

98 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, 558 F. Supp. 2d at 104 (quoting 1971 Mem.at 7), and in his later

role as a Supreme Court Justice, he “apparently recanted those views[,]” id. In one

especially candid moment in the text of the Memorandum, Rehnquist admits that the

historical precedents for refusing a congressional subpoena “are obviously quite

inconclusive” but that “[i]n a strictly tactical sense, the Executive Branch has a

headstart in any controversy with the Legislative Branch, since the Legislative Branch

wants something the Executive Branch has, and therefore the initiative lies with the

former.” 1971 Mem. at 7. He continued: “[a]ll the Executive has to do is maintain the

status quo and he prevails.” Id. It is not surprising that, per this initial internal effort

to establish the ways in which certain White House staff could prevail in any conflict

with Congress over their legally enforceable duty to appear for testimony when

subpoenaed, OLC subsequently developed an entire series of statements, each of which

references the 1971 Memorandum, but none of which specifically acknowledges that the

initial basis for this conclusion was seemingly formed out of nothing. 28

28 The Executive appears to have 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

99 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, 520 U.S. 681 (1997); United States v. Nixon, 418 U.S. 683

(1974). 29 Moreover, in this first formal floating of the principle of absolute testimonial

immunity for certain aides of the President, the author was also crystal clear that the

“absolute immun[ity] from testimonial compulsion by a congressional committee” that

he was proposing was primarily due to the fact that such “immediate advisors” are

“presumptively available to the President 24 hours a day, and the necessity of either

accommodating a congressional committee or persuading a court to arrange a more

convenient time, could impair that availability.” 1971 Mem. at 7. Of course, that

analysis does not support the extension of absolute immunity to former senior-level

aides that DOJ has pressed in recent times.

President, 43 Op. O.L.C. __, at *1; Immunity of Former Counsel to the President from Compelled Cong. Testimony, 31 Op. O.L.C. 191 (2007). 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, 558 F. Supp. 2d at 70. In this regard, Judge Bates points to Chief Justice Marshall’s opinion in United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807). In Burr, Chief Justice Marshall explained that “the obligation [to comply with a subpoena] . . . is general; and it would seem that no person could claim an exemption from [it].” Id. at 34 (emphasis added). Therefore, in Chief Justice Marshall’s view, “[t]he guard, furnished to [the President], to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued; not in any circumstance which is to precede their being issued.” Id.

100 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 before 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, 43 Op. O.L.C. __, at

*2 (“Absent immunity, congressional committees could wield their compulsory power

to attempt to supervise the President’s actions, or to harass those advisers in an effort to

influence their conduct, retaliate for actions the committee disliked, or embarrass and

weaken the President for partisan gain.” (quotation marks and citation omitted));

McGahn OLC Mem., 43 Op. O.L.C.__, at *5 (“The President is a separate branch of

government. He may not compel congressmen to appear before him. As a matter of

separation of powers, Congress may not compel him to appear before it.” (quotation

marks and citation omitted)); Immunity of the Assistant to the President, 38 Op. OLC at

*4 (“The pressure of compelled live testimony about White House activities in a public

congressional hearing would . . . create an inherent and substantial risk of inadvertent

or coerced disclosure of confidential information relating to presidential

decisionmaking—thereby ultimately threatening the President’s ability to receive

candid and carefully considered advice from his immediate advisers.”). Many of these

reasons appear in the brief that DOJ has submitted to support absolute immunity in the

101 context of this case. But, unfortunately for DOJ, its mere recantation of these

aspirational assertions does not make the proposition any more persuasive, and in fact,

given the history of how OLC’s opinion has developed, it appears that an endorsement

of the principles that OLC espouses would amount to adopting the absolute testimonial

immunity for senior-level presidential aides by ipse dixit. Furthermore, because there

are few, if any, well-formulated justifications for categorically excusing current and

former senior-level presidential aides from responding to compelled congressional

process, it would be difficult to do so consistent with existing case law, traditional

norms of practice under our constitutional system of government, and common sense.

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, 558 F. Supp. 2d at 100–05. This Court

agrees with Miers’s analysis, and it also observes that none of the differences that DOJ

has highlighted between the instant case, on the one hand, and Clinton and Nixon, on

102 the other, actually matters. 30 The following brief observations further demonstrate that

the proposition that senior-level presidential aides are entitled to absolute testimonial

immunity has no principled justification, which further undermines DOJ’s assertion that

such immunity must exist.

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, 408 U.S. 606

(1972) is obviously misplaced, because legislative aides derive their absolute immunity

from the Constitution’s provision of absolute testimonial immunity to congresspersons

through the Speech and Debate Clause. See id. at 615–17. As Miers explained, the

Supreme Court in Harlow specifically addressed the argument that such immunity

applies to senior-level executive aides, then concluded that, in contrast to legislative

aides, senior-level executive aides are only entitled to qualified immunity. Harlow, 457

U.S. at 809.

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

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 Presidents 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 President would be declared absolutely immune from compelled congressional process.

103 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, 484 U.S. 219, 225 (1988) (finding that

absolute immunity from civil damages for judicial acts protects “the finality of

judgments[,] discourage[es] inappropriate collateral attacks, [and] protect[s] judicial

independence by insulating judges from vexatious actions prosecuted by disgruntled

litigants” (citation omitted)); Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982) (holding

that the President is absolutely immune from civil damages due to “the singular

importance of the President’s duties,” and that “diversion of his energies by concern

with private lawsuits would raise unique risks to the effective functioning of

government”); Tenney v. Brandhove, 341 U.S. 367, 375 (1951) (explaining that

legislators “must be free to speak and act without fear of criminal and civil liability” as

the reason for the absolute immunity endowed by the Speech and Debate Clause and

similar provisions in “[f]orty-one of forty-eight State[]” constitutions); see also Imbler

v. Pachtman, 424 U.S. 409, 424 (1976) (explaining the purpose of absolute immunity

from civil damages for prosecutorial acts is to allow a prosecutor “to exercise his best

judgment both in deciding which suits to bring and in conducting them in court”). And

at least one of these justifications does not seem at all applicable to the reasons why

one might have immunity from compelled congressional process. 31 One cannot simply

31 For example, in Mireles v. Waco, 502 U.S. 9 (1991), the Supreme Court found that the district court had properly dismissed a case brought against a judge who had allegedly authorized police officers to use excessive force in seizing an individual because “a judicial officer, in exercising the authority vested in him, [must] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id. at 10. By contrast, an executive branch official has no parallel expectation that he or she will not be called upon to testify about the operations of their offices. Indeed, Congress’s long standing and widely accepted power of inquiry, makes the potential for being questioned about one’s work an ever present possibility.

104 assume that the same rationale that compels the conclusion that those who hold certain

civil functions are absolutely immune from civil damages necessitates absolute

immunity from compelled congressional process, even for those same individuals.

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

105 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, 558 F. Supp. 2d at 106.

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, 225 F. Supp. 2d at 106.

Given this, the question becomes why, then, would such senior-level aides need

absolute immunity? In other words, even without a total exemption from compelled

congressional process, senior-level White House aides can withhold the kinds of

confidential and privileged information that distinguishes them from everybody else;

they can do so by asserting an appropriate privilege if needed, when legislators ask

questions that probe too deeply. Thus, it appears that absolute testimonial immunity

serves only the indefensible purpose of blocking testimony about non-protected subjects

106 that are relevant to a congressional investigation and that such an aide would otherwise

have a legal duty to disclose. 32

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, 457 U.S. at 749–50).) But

DOJ has not persuasively explained why such access warrants absolute testimonial

immunity, where such an individual would be counseled in any sworn communications

with Congress, and would have ample opportunity to invoke executive privilege or any

other lawful basis for withholding information, as needed to protect the legitimate

interests of the Executive branch. And, of course, if such an aide cannot lawfully

invoke any privilege to protect information in response to the committee’s questions,

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.

107 then there is no rational basis for maintaining that he should be immune from

responding to Congress’s valid subpoena in the first place.

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’]

108 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, 558 F. Supp. 3d at 102 (observing that “the

historical record produced by the Committee reveals that senior advisors to the

President have often testified before Congress subject to various subpoenas dating back

to 1973”).

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, 354 U.S. at 187; McGrain, 273 U.S. at

175. Thus, the idea that having to testify truthfully about the inner workings of

government is a threat that would actually be sufficient to prevent key public servants

from competently performing as assistants to the President seems anomalous.

Moreover, if the institutions of our government are all, in fact, pushing in the same

direction as they should be—i.e., toward developing and implementing policies that are

in the best interests of the People of the United States—then the possibility that one of

the public servants who work within the government might be called upon to cooperate

with Congress, and thereby perform his public duty of giving authorized legislators the

109 means of performing their own constitutional functions, provides no reasonable grounds

for fear. And if it does, as DOJ here suggests, then that is all the more reason why such

testimony is critical. In short, DOJ’s implicit suggestion that compelled congressional

process is a ‘zero-sum’ game in which the President’s interest in confidentiality

invariably outweighs the Legislature’s interest in gathering truthful information, such

that current and former senior-level presidential aides should be always and forever

immune from answering probing questions, is manifestly inconsistent with a

governmental scheme that can only function properly if its institutions work together.

See The Federalist No. 51 (James Madison).

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, 520 U.S. at 702 (citations

omitted)); see also id. (“As we have already noted, in the more than 200–year history of

the Republic, only three sitting Presidents have been subjected to suits for their private

110 actions. If the past is any indicator, it seems unlikely that a deluge of such litigation

will ever engulf the Presidency.”).

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, 558 F. Supp. 2d at 102. And the absence of such history seems even more

noteworthy at present. Surely if Congress was inclined to utilize its subpoena power to

harass the Executive branch unjustifiably, then Miers’s own holding would have given

it sufficient impetus to do so. Yet, even DOJ must acknowledge that no such parade of

horribles has happened.

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

111 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 becoming

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, 558 F. Supp. 2d at 103 (explaining that the Executive branch’s

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, 383 U.S. 169, 179 (1966). Thus, the purpose of the Speech and Debate Clause is to protect legislators from intimidating and/or hostile executive and judicial inquiry, a common abuse of power in seventeenth century England. See id. at 181–82. And, notably, the Constitution includes nothing akin to the Speech and Debate Clause for the Executive branch.

112 separation-of-powers interest in “[p]residential autonomy, such as it is, cannot mean

that the Executive's actions are totally insulated from scrutiny by Congress. That would

eviscerate Congress's historical oversight function”).

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

113 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

114 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 absolute 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 repetition 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

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.

115 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

116 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 President 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

117 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.

DATE: November 25, 2019 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge