Comm. on the Judiciary of the U.S. House of Representatives v. McGahn, No. 19-5331

951 F.3d 510

COMMITTEE ON the JUDICIARY of the United States House of Representatives, Appellee

v.Donald F. MCGAHN, II, Appellant

No. 19-5331

United States Court of Appeals, District of Columbia Circuit.

Argued January 3, 2020

Decided February 28, 2020

Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Mark R. Freeman, Michael S. Raab, and Martin Totaro, New York, NY, Attorneys.

Megan Barbero, Associate General Counsel, U.S. House of Representatives, argued the cause for appellee. With her on the briefs were Douglas N. Letter, General Counsel, Todd B. Tatelman, Deputy General Counsel, Josephine Morse, Associate General Counsel, Adam A. Grogg and William E. Havemann, Assistant General Counsel, Jonathan B. Schwartz, Attorney, Washington, DC, and Annie L. Owens.

Steven A. Hirsch, Justin Florence, Jamila G. Benkato, and Cameron O. Kistler were on the brief for amici curiae Republican Legal Experts, et al. in support of plaintiff-appellee.

Before: Henderson, Rogers, and Griffith, Circuit Judges.

Concurring opinion filed by Circuit Judge Henderson.

Dissenting opinion filed by Circuit Judge Rogers.

Griffith, Circuit Judge:

The Committee on the Judiciary of the House of Representatives ordered the former White House Counsel, Donald F. McGahn, II, to testify before the Committee. President Donald Trump instructed McGahn to refuse, asserting that certain presidential advisers possess "absolute testimonial immunity" from compelled congressional process. The Committee now seeks to invoke this court’s jurisdiction to enforce its subpoena. The Department of Justice (DOJ), on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute. We agree and dismiss this case.

I

A

In May 2017, the Deputy Attorney General appointed Special Counsel Robert Mueller to investigate whether President Trump’s campaign coordinated with the Russian government during the 2016 presidential election. See ROBERT S. MUELLER, III, REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION , vol. I, at 1-2 (2019). This investigation’s scope soon expanded when the President took several actions that "raised questions about whether he had obstructed justice." Id. vol. II, at 1. As part of his investigation, the Special Counsel interviewed McGahn, who was then the White House Counsel. McGahn witnessed several of the President’s efforts to thwart the Special Counsel’s investigation, including the President’s aborted attempt to fire the Special Counsel. Id. vol. II, at 77-90, 113-20; see also Committee Br. 6 n.3.

On March 4, 2019, pursuing leads developed by the Special Counsel, the Committee began an investigation into the President’s possible "obstruction of justice, public corruption, and other abuses of power." J.A. 542. The Committee sent a letter asking McGahn to turn over certain White House documents relating to the President’s possible obstruction, but McGahn did not comply. On April 22, the Committee issued a duly authorized subpoena ordering McGahn to produce these documents and to testify before the Committee on May 21.

On May 20, McGahn’s successor as White House Counsel, Pat A. Cipollone, informed the Committee that the President had "directed Mr. McGahn not to appear at the Committee’s scheduled hearing." J.A. 304. Cipollone wrote that the DOJ’s Office of Legal Counsel (OLC) advised him that certain presidential aides, including McGahn, are "absolutely immune from compelled congressional testimony with respect to matters occurring during [their] service ... to the President." J.A. 303. Cipollone enclosed the memorandum from OLC setting forth this theory of absolute testimonial immunity. See Testimonial Immunity Before Congress of the Former Counsel to the President , 43 Op. O.L.C. (May 20, 2019).

McGahn’s private attorney likewise informed the Committee that McGahn would not testify, though he would agree to comply with any "accommodation" reached by the Committee and the White House. J.A. 631-32. The Committee and the White House later reached such an accommodation regarding the subpoenaed documents, but they could not agree to terms for McGahn’s testimony.

B

On August 7, the Committee sued McGahn in the District Court for the District of Columbia, claiming that McGahn "enjoys no absolute immunity from appearing before the Judiciary Committee." Compl. ¶ 111, J.A. 63. The Committee alleged that McGahn’s refusal to testify frustrated its efforts to "determin[e] whether to approve articles of impeachment" against the President, "assess the need for remedial legislation," and "conduct oversight of DOJ." Id. ¶ 10, J.A. 17. The Committee asked the court to declare that McGahn’s refusal to appear at all was "without legal justification," and to enjoin McGahn "to appear and testify forthwith." Id. at 53, J.A. 64.

The parties filed cross-motions for summary judgment. The district court granted the Committee’s motion and denied McGahn’s. Mem. Op. at 118, J.A. 966.

The district court first rejected DOJ’s threshold arguments, concluding that (1) the court had subject-matter jurisdiction under 28 U.S.C. § 1331, id. at 41-45, J.A. 889-93; (2) the dispute was justiciable because it raised "garden-variety legal questions that the federal courts address routinely and are well-equipped to handle," id. at 47-48, J.A. 895-96; (3) the Committee had Article III standing because it "alleged an actual and concrete injury to its right to compel information," id. at 75, J.A. 923; and (4) the Committee possessed an implied cause of action under Article I of the Constitution, id. at 77-81, J.A. 925-29.

On the merits, the district court rejected DOJ’s assertion of absolute testimonial immunity and ordered McGahn to appear before the Committee. Id. at 89-118, J.A. 937-66. The court concluded that presidential aides "who have been subpoenaed for testimony by an authorized committee of Congress must appear." Id. at 116, J.A. 964. Only then may an aide assert "any legally applicable privilege in response to the questions asked of them." Id. McGahn timely appealed.

C

The House of Representatives has since passed two articles of impeachment against the President. H.R. Res. 755, 116th Cong. (2019). The first article charges the President with "abuse of power"; the second with "obstruction of Congress." Although the second article does not mention McGahn expressly, it alleges that the President unlawfully directed officials "not to comply with" congressional subpoenas and asserts that these directives "were consistent with President Trump’s previous efforts to undermine United States Government investigations into foreign interference in United States elections." Id. at 6-8. The Senate voted to acquit the President on February 5. See 166 CONG. REC. S936-39 (daily ed. February 5, 2020).

The Committee also issued a report detailing the President’s alleged wrongdoing, see H.R. REP. NO. 116-346 (2019), that explains the Committee’s continued interest in McGahn’s testimony. Specifically, the Committee explained that it intended to use McGahn’s testimony "in a Senate trial on these articles of impeachment" and to continue investigating "President Trump’s obstruction of the Special Counsel." Id. at 159 n.928; see also Committee Suppl. Br. 5-8. If the Committee obtains McGahn’s testimony, it may "consider[ ] whether to recommend new articles of impeachment." Id. at 7. The Committee also claims that it needs McGahn’s testimony "for pressing legislative and oversight purposes," including the consideration of certain legislation. Id. at 8-9.

II

When a litigant asks a federal court to resolve a dispute, the Constitution requires that court first to decide whether the matter is a "Case" or "Controversy" within the meaning of Article III. This limitation is essential to the democratic structure of the Constitution enacted by "We the People" in 1789. U.S. CONST. pmbl. Compared to Congress and the President, unelected and unaccountable federal judges sit at the furthest remove from the citizenry. To the Framers, "[n]o liberty was more central than the people’s liberty to govern themselves under rules of their own choice." AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 10 (2005). And those rules must be made by the people’s politically accountable representatives, not by life-tenured judges. Article III comes third for a reason; if Congress is "first among equals," the judiciary is last. Id. at 208.

To protect the elected branches from undue interference, Article III carefully circumscribes the jurisdiction of the courts. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers , 17 SUFFOLK U. L. REV. 881, 881 (1983) (Article III prevents the "overjudicialization of the processes of self-governance"). If federal courts had power to answer "every question under the constitution," they could reach "almost every subject proper for legislative discussion and decision." DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting 4 PAPERS OF JOHN MARSHALL 95 (C. Cullen ed. 1984) (emphasis omitted)). The separation of powers "could exist no longer, and the other departments would be swallowed up by the judiciary." Id. Our government would become one not of laws, but of lawyers.

Of course, judicial exposition of the Constitution’s meaning is an "indispensable feature of our constitutional system," Cooper v. Aaron , 358 U.S. 1, 18, 78 S.Ct. 1401, 3 L.Ed.2d 5, 3 L.Ed.2d 19 (1958), but Article III grants federal courts " ‘Power’ to resolve not questions and issues but ‘Cases’ or ‘Controversies,’ " Ariz. Christian Sch. Tuition Org. v. Winn , 563 U.S. 125, 132, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011) (quoting U.S. CONST. art. III). We may not disregard this limitation simply to "settle" a dispute "for the sake of convenience and...