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

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

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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.

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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).

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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

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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

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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.

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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,

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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 Comm

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