Committee on Judiciary , United States House of Representatives v. McGahn

415 F.Supp.3d 148

COMMITTEE ON the JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff,

v.Donald F. MCGAHN II, Defendant.

Civ. No. 19-cv-2379 (KBJ)

United States District Court, District of Columbia.

Signed November 25, 2019

Seth Wayne, Annie L. Owens, Joshua Geltzer, Institute for Constitutional Advocacy and Protection, Adam Anderson Grogg, Josephine T. Morse, Megan Barbero, Sarah Edith Clouse, Todd Barry Tatelman, Douglas N. Letter, U.S. House of Representatives Office of General Counsel, Washington, DC, for Plaintiff.

Elizabeth J. Shapiro, James J. Gilligan, Steven A. Myers, Andrew Marshall Bernie, Cristen Cori Handley, James Mahoney Burnham, Serena Maya Schulz Orloff, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION...152

II. BACKGROUND...155

A. Factual Background...155

B. Committee on the Judiciary, U.S. House of Representatives v. Miers ...160

C. Procedural History...162

III. LEGAL STANDARDS...164

A. Cross-Motions For Summary Judgment Under Federal Rule of Civil Procedure 56...164

B. Common Law Adherence To Precedent...165

C. Subpoena-Related Rights, Duties, Privileges, And Immunities...166

1. Subpoenas In Standard Civil Actions...167

2. Legislative Subpoenas...169

IV. ANALYSIS...171

A. Federal Courts Have The Power To Adjudicate Subpoena-Related Disputes Between Congress And The Executive Branch...173

1. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over Subpoena-Enforcement Claims Under 28 U.S.C. § 1331...174

2. Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute...176

a. The legal claim at issue here is not non-justiciable...177

b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process...179

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...184

B. House Committees Have The Power To Enforce Their Subpoenas In Federal Court When Executive Branch Officials Do Not Respond As Required...187

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...188

2. The Constitution Itself Provides A Cause Of Action For A Thwarted House Committee To Proceed In Federal Court...193

3. There Is No Separation-Of-Powers Impediment To The Judiciary Committee's Seeking To Vindicate Its Rights In Federal Court...195

C. The President Does Not Have The Power To Prevent His Aides From Responding To Legislative Subpoenas On The Basis Of Absolute Testimonial Immunity...199

1. Miers Squarely Rejects The Argument Senior-Level Presidential Aides Enjoy Absolute Testimonial Immunity...200

2. OLC's Long-Held View That Senior-Level Presidential Aides Have Absolute Testimonial Immunity Is Neither Precedential Nor Persuasive...204

3. There Is No Principled Basis For Concluding That Senior-Level Presidential Aides Should Have Absolute Testimonial Immunity...207

4. Concluding That Presidential Aides Enjoy Absolute Testimonial Immunity At The President's Discretion Conflicts With Core Constitutional Norms...212

V. CONCLUSION...214

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 the 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. ).

The Judiciary Committee and DOJ (which is representing McGahn in the instant legal action) have now filed 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 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, 2 L.Ed. 60 (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...