The DC Circuit issued an opinion in late August that could significantly disrupt decades of Congressional investigations practice. In Comm. on the Judiciary of United States House of Representatives v. McGahn, No. 19-5331, 2020 WL 5104869 (D.C. Cir. Aug. 31, 2020), the DC Circuit effectively put an end to the US House Judiciary Committee’s attempt to enforce judicially a subpoena against former White House Counsel Donald McGahn. Pending rehearing en banc and/or appeal,[1] the decision could eliminate the force and effect of subpoena authority—the authority underlying every House investigation.

Background

The DC Circuit's decision comes after a protracted legal battle that began in April 2019, when the committee demanded that McGahn appear before it to testify about President Donald Trump's alleged obstruction of former Special Counsel Robert Mueller's investigation of Russian interference in the 2016 presidential election. McGahn, who stepped down from his role as White House counsel in October 2018, was viewed by the committee as a key witness in the investigation. The White House Counsel's Office instructed McGahn not to comply with the subpoena on grounds that close presidential advisers are entitled to absolute immunity—legal doctrine that has long been relied upon by members of both Democratic and Republican administrations. In response, the committee filed suit in federal district court seeking a declaratory judgment that McGahn's refusal lacked legal justification and asked for an injunction requiring him to appear.

In November 2019, US District Judge Ketanji Brown Jackson held that McGahn must appear before the committee, but that he is entitled to invoke the privilege during his testimony.[2] In February, the DC Circuit issued a 2-1 ruling overturning this decision.[3] The three-judge panel sided with the DOJ's argument that the Committee lacked Article III standing to file suit to enforce its subpoena.[4] Earlier this month, however, a full panel of the DC Circuit held that the committee had standing through Article I, section 2, clause 5 of the Constitution, which provides the House of Representatives with the "sole power of Impeachment."[5] The court remanded to the same three-judge panel below the remaining issues, including whether the committee has a cause of action to enforce its subpoena.

In dismissing the committee's action, the panel held that because Congress has not provided the committee with an express cause of action, it lacks authority to seek judicial enforcement of its subpoena.[6] The committee had argued that: (1) it has an implied cause of action under Article I of the Constitution, (2) the court can enforce the subpoena in exercise of its "traditional equitable powers," to enjoin unlawful executive action; and, (3) the Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides a separate basis for relief. In siding with McGahn, the court rejected all three of these arguments.

First, noting federal courts' traditional hesitation to find implied causes of action absent Congressional intent, the court pointed to Congress's past unwillingness to authorize the very type of lawsuit filed by the committee when it enacted 28 U.S.C. § 1365. That statute provided the Senate—but not the House—with express statutory authority to seek judicial enforcement of subpoenas, and even denied the Senate the authority to bring suits involving executive-branch assertions of "governmental privilege." The court inferred from this statute that had Congress wanted to provide the House with a cause of action, it would have done so.

Second, in rejecting the argument that courts can entertain such suits under "traditional equitable authority," the court held that such authority is nonetheless subject to the "implied statutory limitations" embodied in § 1365, and that in any event, there was nothing "traditional" about the committee’s claim. On the latter point, it noted that the "relatively recent" lawsuits to enforce House subpoenas fell short of "traditional equitable powers," given that "'separate systems of law and equity' in our federal system ceased to exist in 1938."[7]

Finally, the court also rejected the committee's claim of authority under the Declaratory Judgment Act on the basis that the Act itself does not provide a cause of action, but is merely procedural and presupposes a formal, judicially remedial right.

Finding the committee without a cause of action, the court did not determine whether McGahn would have been entitled to assert absolute immunity had he been required to testify.

Possible Congressional Response to McGahn

The DC Circuit pointed the House Judiciary Committee to two alternative avenues for obtaining compliance with its subpoena: (1) the use of its criminal contempt authority and (2) legislation. As discussed below, the decision could either breathe new life into the long-dormant "inherent" contempt authority held by Congress, or lead to an expansion of subpoena power via legislation.

(1) Renewed Reliance on Inherent Criminal Contempt

On the one hand, McGahn significantly limits the ability of the House not only to serve its oversight function, but also to engage in fact-finding in aid of its legislative function. On the other hand, as the DC Circuit observed, the committee could have pursued McGahn’s testimony through either its statutory or inherent criminal contempt authority.

Under 2 U.S.C. § 192, a person who refuses to comply with a Congressional subpoena is guilty of a Class A misdemeanor, which is punishable by a fine of up to $100,000 and imprisonment for up to one year. To hold a party in criminal contempt under § 192, the issuing House or Senate committee must report the non-compliance to the speaker or president of the Senate, who must then certify the report and refer it to the US Attorney's Office, typically to the US Attorney for the District of Columbia.[8] While the statute appears to make prosecution mandatory, the US Attorney’s office has consistently asserted that it retains discretion.[9]

In recent years, both parties have flexed this authority. Less than two months ago, for example, House Democrats held both Attorney General William Barr and Commerce Secretary Wilbur Ross in criminal contempt using this very mechanism, neither of whom have been subject to any criminal prosecution by a US Attorney's Office.[10] From the perspective of a Congressional committee, the principal drawback of 2 U.S.C. § 192 is that it is not intended to be coercive—a witness cannot mitigate the consequences of a criminal contempt citation by changing course and complying with the subpoena, and could simply accept the criminal penalty while continuing to refuse to comply. In practice, then, once a witness is held in criminal contempt, he has little incentive to fulfill a committee's request. As such, the utility of 2 U.S.C. § 192 to some degree hinges on its ability to deter non-compliance in the first place. Historically, its deterrent effect has been significant. The mere threat of criminal contempt, along with the reputational harm associated with flouting a Congressional demand, regularly moves those who receive subpoenas to comply. That said, criminal prosecution following a § 192 referral will for all practical purposes be subject to the prosecutorial discretion of a US Attorney, and by extension the DOJ. It thus may be of limited utility when the subject of the referral is a current or former member of, or otherwise aligned with, the party controlling the executive branch at the time.

Alternatively, Congress also has a judicially recognized "inherent" criminal contempt authority.[11] Pursuant to this authority, either chamber of Congress may sanction and imprison an individual who declines to comply with a Congressional subpoena until the demands of the subpoena are met. To hold an individual in contempt, however, Congress must conduct summary proceedings on its own, and even those it holds in contempt through these proceedings are entitled to judicial review. Because of the cumbersome nature of this process, Congress has not relied on its inherent contempt authority since 1935.[12]

(2) Legislation

While the DC Circuit held that the committee lacked a cause of action to enforce its subpoena, it reminded lawmakers of their ability to respond legislatively: "[t]his decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit."[13] Although processing such legislation under the current House Democratic majority would seem an easy task, such legislation would likely face longer odds in the Republican-controlled Senate. A change in control on the Senate side in 2021, however, would make Congressional passage more likely. Actual enactment would then depend on who resides in the White House.

Commentary

Although House investigations of the Trump Administration have garnered the most headlines for 20 months, House committees have vigorously pursued corporate America in pursuit of their investigative agendas as well, all with the implicit threat of subpoenas—and the enforcement of those subpoenas. McGahn upends those investigative pursuits. Here's why: House committees typically initiate investigations through letters seeking information and documents from parties pursuant to House Rules X (jurisdiction) and XI (investigative authority, including subpoena power). Recipients of these letters are rarely eager to respond, but generally do so in some form because of the express or implied threat of subpoena. Investigative targets want to avoid (1) attendant reputational damage (e.g., the headline, "Widget Co. Subpoenaed by Congress!") and also (2) harsh legislative treatment by the very committee investigating them.

McGahn does not alleviate those concerns, necessarily. If, however, there is no legal consequence to refusing to comply with a subpoena, private parties should fundamentally rethink their responses to initial investigative letters and, indeed, their responsiveness throughout a committee investigation. McGahn, at a minimum, if left to stand, will alter the balance of leverage in favor of request recipients negotiating with committee staff over the scope of their response. In any event, prudence, not necessarily the threat of harsh enforcement, should be the order of the day.