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

July 31, 2008


The opinion of the court was delivered by: John D. Bates United States District Judge


This dispute pits the political branches of the federal government against one another in a case all agree presents issues of extraordinary constitutional significance. The heart of the controversy is whether senior presidential aides are absolutely immune from compelled congressional process. But as is often true of lawsuits that raise important separation of powers concerns, there are many obstacles to the invocation of the jurisdiction of the federal courts that must first be addressed.

The Committee on the Judiciary ("Committee"), acting on behalf of the entire House of Representatives, asks the Court to declare that former White House Counsel Harriet Miers must comply with a subpoena and appear before the Committee to testify regarding an investigation into the forced resignation of nine United States Attorneys in late 2006, and that current White House Chief of Staff Joshua Bolten must produce a privilege log in response to a congressional subpoena. Ms. Miers and Mr. Bolten (collectively "the Executive")*fn1 have 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. On the merits, the Executive argues 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, and that the Committee has no authority to demand a privilege log from the White House.

Notwithstanding that the opposing litigants in this case are co-equal branches of the federal government, at bottom this lawsuit involves a basic judicial task -- subpoena enforcement -- with which federal courts are very familiar. The executive privilege claims that form the foundation of the Executive's resistance to the Committee's subpoenas are not foreign to federal courts either. After all, from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("[i]t is emphatically the province and duty of the judicial department to say what the law is"), through United States v. Nixon, 418 U.S. 683, 705 (1974) (the judiciary is the ultimate arbiter of claims of executive privilege), to Boumediene v. Bush, 553 U.S. ---, 128 S.Ct. 2229, 2259 (2008) (rejecting regime in which the political branches may "switch the Constitution on or off at will" and, rather than the judiciary, "say 'what the law is'"), the Supreme Court has confirmed the fundamental role of the federal courts to resolve the most sensitive issues of separation of powers. In the thirty-four years since United States v. Nixon was decided, the courts have routinely considered questions of executive privilege or immunity, and those issues are now "of a type that are traditionally justiciable" in federal courts, United States v. Nixon, 418 U.S. at 697 (citation omitted), and certainly not unprecedented, as the Executive contends.

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President's personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706): neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

It is important to note that the decision today is very limited. To be sure, most of this lengthy opinion addresses, and ultimately rejects, the Executive's several reasons why the Court should not entertain the Committee's lawsuit, but on the merits of the Committee's present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Miers and Mr. Bolten may assert are not addressed -- and the Court expresses no view on such claims. Nor should this decision discourage the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches. Although standing ready to fulfill the essential judicial role to "say what the law is" on specific assertions of executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch's essential role. To that end, the Court is reminded of Justice Jackson's observations in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952):

While the Constitution diffuses power the better to 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. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.


At the outset, the Court recognizes that this case is in an odd procedural posture. For purposes of the Executive's motion to dismiss, the Court must accept the Committee's factual assertions as true, but that is not so for purposes of the Committee's own motion for partial summary judgment. Fortunately, however, the operative facts are not significantly in dispute, notwithstanding each side's attempt to put its own gloss on the relevant events.

In early December 2006, the Department of Justice ("DOJ") requested and received resignations from seven U.S. Attorneys: Daniel Bogden (D. Nev.), Paul K. Charlton (D. Ariz.), Margaret Chiara (W.D. Mich.), David Iglesias (D. N.M.), Carol Lam (S.D. Cal.), John McKay (W.D. Wash.), and Kevin Ryan (N.D. Cal.). See Pl.'s Stmt. of Facts ¶ 7.*fn3 At some point earlier in the year, DOJ had also asked for and received resignations from two other U.S. Attorneys: H.E. "Bud" Cummins III (E.D. Ark.) and Todd Graves (W.D. Mo.). Id. The circumstances surrounding these forced resignations aroused almost immediate suspicion. Few of the U.S. Attorneys, for instance, were given any explanation for the sudden request for their resignations. Many had no reason to suspect that their superiors were dissatisfied with their professional performance; to the contrary, most had received favorable performance reviews.

Additional revelations further fueled speculation that improper criteria had motivated the dismissals. Carol Lam, for example, had successfully prosecuted Republican Congressman Randy "Duke" Cunningham for bribery following a high-profile investigation and was "in the midst" of pursuing additional high-ranking Republican officials when she was terminated. See Pl.'s Mot. at 8; see also Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. No. 110-423 (2007) (hereinafter "Contempt Report"), at 17. John McKay had refused requests by Republican officials to pursue accusations of voter fraud during the 2004 Washington gubernatorial race. Id. Similarly, David Iglesias was contacted by two Republican Members of Congress from New Mexico (Senator Pete Domenici and Representative Heather Wilson) who were disappointed to learn that Iglesias had no plans to seek indictments against members of the opposing political party in the run-up to the 2006 congressional elections. Pl.'s Mot. at 8; see also Contempt Report at 25.

As these events came to light, the Committee on the Judiciary -- a standing Committee of the House of Representatives -- commenced an investigation into the forced resignations in early 2007. See Pl.'s Stmt. of Facts ¶ 8. Citing its authority under House Rule X, which provides that the Judiciary Committee's oversight responsibilities extend to issues relating to judicial proceedings and criminal law enforcement, the Committee declared that it aimed to:

(1) investigat[e] and expos[e] any possible malfeasance, abuse of authority, or violation of existing laws on the part of the Executive Branch related to these concerns, and (2) consider[] whether the conduct uncovered may warrant additions or modifications to existing Federal Law, such as more clearly prohibiting the kinds of improper political interference with prosecutorial decisions as have been alleged here.

Id. ¶ 10 (quoting Contempt Report at 7). The Committee heard the testimony of six of the dismissed U.S. Attorneys during the first hearing held on March 6, 2007. Id. ¶ 11. Shortly thereafter, Committee Chairman John Conyers, Jr., and Linda T. Sanchez, Chairwoman of the Subcommittee on Commercial and Administrative Law, wrote to officials at DOJ and the White House requesting that certain individuals, among them Ms. Miers, be made available for questioning by the Committee. Id. ¶¶ 12-13.

In response, the Executive, "[i]n order to accommodate the Committee's interests . . . [,] made available to Congress a very substantial number of witnesses and documents." See Def.'s Mot. to Dismiss & Opp'n to Summ. J. (hereinafter "Def.'s Mot. & Opp'n") at 11. Thus, the Executive made "then-Principal Associate Deputy Attorney General William Moschella available to Congress as a witness, and subsequently made available thirteen additional Executive Branch witnesses for testimony or interviews, including the Attorney General, the Chief of Staff to the Attorney General, incumbent and former Deputy Attorneys General, and serving U.S. Attorneys." Id. Mr. Moschella testified that "the forced resignations were all performance related and that any White House involvement was minimal and occurred only at the end of the process." Pl.'s Mot. at 9 (citing Contempt Report at 19). Similarly, then-Attorney General Alberto Gonzales initially indicated that he was not involved in the process at all but later testified that he had very little recollection of the entire matter.*fn4

On May 23, 2007, Monica Goodling, former Senior Counsel to Attorney General Gonzales and DOJ's White House Liaison, testified before the Committee pursuant to limited use immunity. See Pl.'s Stmt. of Facts ¶ 24. Similarly, on July 11, 2007, former White House Political Director Sara M. Taylor testified before the Senate Committee on the Judiciary pursuant to a duly issued subpoena. Id. ¶ 42. Ms. Taylor invoked executive privilege as necessary on a question-by-question basis. Id. Moreover, in addition to the live testimony provided, DOJ produced to Congress "over 7,850 pages of documents, including more than 2,200 pages from the Office of the Attorney General and 2,800 pages from the Office of the Deputy Attorney General." See Defs.' Mot. & Opp'n at 12. DOJ made available another 3,750 pages of documents, bringing the total number of pages produced to Congress to "nearly 12,000." Id.

According to the Committee, however, "[s]ubsequent testimony and documents provided by Department officials . . . suggested that the Gonzales and Moschella statements were false and misleading, thus still leaving unresolved precisely what the reasons were for the terminations and what role the White House played in them." See Pl.'s Mot. at 9-10. Most importantly, none of the DOJ officials who testified before the Committee could identify who at DOJ had recommended the dismissal of the majority of the terminated U.S. Attorneys. Id. at 10 (citing Contempt Report at 43). Former Deputy Attorney General James B. Comey, who had supervised the dismissed U.S. Attorneys, had not recommended their removal -- with the apparent exception of Kevin Ryan -- and "could not credit the reasons offered for the terminations of the others." Id. (citing Contempt Report at 45-46). The Committee concluded that it is "well established that, in the opening days of President Bush's second term, then Senior Presidential Advisor Karl Rove raised the idea with officials in the White House Counsel's office of replacing some or all U.S. Attorneys." See Contempt Report at 43. The Committee has not been able to determine, however, "why Mr. Rove was interested in this issue." Id. Similarly, the Committee determined that "[n]ewly installed White House Counsel Harriet Miers apparently took up Mr. Rove's idea, and over the next two years received repeated drafts of the firing list." Id. at 43-44. But likewise, "the Committee has learned very little as to why Ms. Miers believed that an effort to replace sitting U.S. Attorneys should be launched." Id. at 44.

After deciding that Ms. Miers had played a significant personal role in the termination decision-making, the Committee intensified its efforts to obtain her testimony. Ms. Miers, however, had not responded to the initial letter from the Committee requesting a voluntary interview. See Pl.'s Stmt. of Facts ¶¶ 13-14. Hence, on March 9, 2007, Chairman Conyers and Chairwoman Sanchez wrote to Fred F. Fielding, Counsel to the President, requesting that the administration produce documents relating to the investigation and "make certain White House officials available for interviews and questioning." Id. ¶ 15.

Mr. Fielding responded by letter dated March 20, 2007. He indicated that the White House was willing to "make available for interviews the President's former Counsel; current Deputy Chief of Staff and Senior Advisor; Deputy Counsel; and Special Assistant in the Office of Political Affairs." Id. ¶ 16 (quoting Pl.'s Mot. Ex. 5). That offer was conditioned, however, upon several terms and restrictions. To begin with, the interviews were to be limited to "the subject of (a) communications between the White House and persons outside the White House concerning the request for resignations of the U.S. Attorneys in question; and (b) communications between the White House and Members of Congress concerning those reports." Pl.'s Mot. Ex. 5. Moreover, the Executive indicated that the interviews were to be "private and conducted without the need for an oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas." Id. The White House also offered to provide to the Committee two categories of documents: "(a) communications between the White House and the Department of Justice concerning the request for resignations for the U.S. Attorneys in question; and (b) communications on the same subject between White House staff and third parties, including Members of Congress or their staffs on the subject." Id.

The Committee did not receive Mr. Fielding's offer warmly. In particular, the Committee viewed the proposal as "unreasonably restrictive" in part because "no matter what was revealed [through the document production or interviews], no other testimony or documents could be requested from the White House." See Contempt Report at 61. Moreover, the documents the White House offered to produce "excluded all internal White House communications regarding the firing of the U.S. Attorneys, even though some documents reflecting such internal communications had already been provided by the Justice Department." Id. (emphasis in original). Thus, pursuant to House rules, on March 21, 2007, the Subcommittee voted to authorize Chairman Conyers to "issue subpoenas for the testimony of former White House Counsel Harriet Miers . . . and other specified White House officials." Id. at 61-62. In addition, the Subcommittee also authorized Chairman Conyers to issue "subpoenas for documents in the custody or control of . . . White House Chief of Staff Joshua Bolten." Id. at 62.

Chairman Conyers and Chairwoman Sanchez wrote to Mr. Fielding on March 22, 2007 to inform him that the Committee could not "accept your proposal for a number of reasons." Id. Specifically, the letter stated that:

[T]he failure to permit any transcript of our interviews with White House officials is an invitation to confusion and will not permit us to obtain a straightforward and clear record. Also, limiting the questioning (and document production) to discussions by and between outside parties will further prevent our Members from learning the full picture concerning the reasons for the firings and related issues. As we are sure you are aware, limitations of this nature are completely unsupported by precedents applied to prior Administrations -- both Democratic and Republican.

Id. Nevertheless, the Committee indicated that it remained "committed to seeking a cooperative resolution to this matter on a voluntary basis." Pl.'s Mot. Ex. 6. For that reason, Chairman Conyers refrained from immediately issuing subpoenas in the hope that a negotiated solution would obviate the need to rely upon compulsory process. Id.

Chairman Conyers and Senator Leahy, Chairman of the Senate Committee on the Judiciary, wrote to Mr. Fielding again on March 28, 2007 in an effort to reach an agreeable accommodation. The Chairmen requested that the White House abandon its "all or nothing" approach and instead produce the documents that it had already offered to make available. Pl.'s Mot. Ex. 7. They also suggested that the parties narrow the dispute to "internal" White House documents and then focus on developing a process to deal with production. Id. Mr. Fielding responded by letter dated April 12, 2007. He asked the Committees to "reconsider [their] rejection of the President's proposal." Pl.'s Mot. Ex. 9. Mr. Fielding also "respectfully decline[d] [the Chairmen's] suggestion to immediately produce the documents that we are prepared to release." Id. In conclusion, he indicated that the Executive "continue[d] to believe that the accommodation we offered on March 20 . . . will satisfy the Committees' interests." Id.

Finally, Chairman Conyers and Chairwoman Sanchez wrote to Mr. Fielding on May 21, 2007 to "make one last appeal for . . . voluntary cooperation." Pl.'s Mot. Ex. 10. They indicated that the Committee had been "willing and able to meet to consider other means of resolving our dispute, but we have received no response to our letters or proposals to you." Id. Explaining that "it is becoming increasingly clear that we will not be able to complete our investigation absent full and complete cooperation from the White House," they emphasized the Committee's willingness to work out a voluntary resolution to the dispute but noted that it would "be constitutionally irresponsible to accept your 'all or nothing' limitations that would completely preclude any access to on-the-record statements by current and former White House personnel or access to internal White House communications." Id. Thus, they stated that absent an effort by the White House to accommodate the Committee's request, "we will have no alternative but to begin to resort to compulsory process to carry out our oversight responsibilities." Id.

Mr. Fielding responded to Chairman Leahy, Chairman Conyers, and Chairwoman Sanchez on June 7, 2007. He noted that the Executive had "made efforts to resolve our differences on this issue in a mutually acceptable fashion" by meeting with members from both Committees to discuss proposals. Pl.'s Mot. Ex. 12. Moreover, he cited to various disclosures made by DOJ without objection from the White House. In addition, Mr. Fielding expressed his aspiration to "avoid the prospect of 'subpoenas' and 'compulsory process' referred to in your recent letters and statement." Id. He concluded by reiterating, once again, the terms of the Executive's initial proposal, explaining that "[i]t is difficult to see how this proposal will not provide your Committees with all information necessary to evaluate the White House's connection to the Department's request for U.S. Attorney resignations." Id.

Apparently viewing Mr. Fielding's June 7, 2007 letter as evidence of the Executive's intransigence, the Committee issued subpoenas to Mr. Bolten and Ms. Miers on June 13, 2007. Pl.'s Stmt. of Facts ¶¶ 26-27. Mr. Bolten was directed to produce responsive documents to the Committee by June 28, 2007 and to deliver a privilege log with respect to any documents withheld on the grounds of privilege. Id. ¶ 26. Ms. Miers was directed to appear to testify before the Committee on July 12, 2007 and to produce relevant documents in her possession; she, too, was advised to supply a privilege log for any documents withheld as privileged. Id. ¶ 27.

On June 27, 2007, Solicitor General and then-Acting Attorney General Paul Clement wrote to the President indicating that "[i]t is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony." Pl.'s Mot. Ex. 15. Mr. Clement explained that the "Office of Legal Counsel of the Department of Justice . . . reviewed the documents identified by the Counsel to the President as responsive to subpoenas." Id. Those responsive documents fell into "three broad categories": "(1) internal White House communications; (2) communications by White House officials with individuals outside the Executive Branch, including with individuals in the Legislative Branch; and (3) communications between White House officials and Department of Justice officials." Id. Mr. Clement concurred with the conclusion of the Office of Legal Counsel ("OLC") that the documents "fall within the scope of executive privilege . . . [and] that Congress's interests in the documents and related testimony would not be sufficient to override an executive privilege claim." Id.

Based upon Mr. Clement's letter and OLC's analysis, Mr. Fielding wrote to Chairmen Leahy and Conyers on June 28, 2007 advising them that the "President has decided to assert Executive Privilege and therefore the White House will not be making any production in response to these subpoenas for documents." Pl.'s Stmt. of Facts ¶ 30. In addition, Mr. Fielding indicated that the President had also directed Ms. Miers not to produce any responsive documents to the Committee; George Manning, counsel for Ms. Miers, confirmed that instruction by letter dated June 28, 2007. Id. ¶¶ 30-31.

Mr. Bolten did not provide any documents to the Committee when his response date came due on June 28, 2007. The next day, Chairmen Leahy and Conyers wrote to Mr. Fielding seeking to obtain the specific bases for the Executive's assertion of privilege. Id. ¶ 33. They also requested that the White House provide a personal signed statement by the President confirming that he had decided to invoke executive privilege. Id. Mr. Fielding denied both requests on July 9, 2007. Id. ¶ 34. On that same day, Mr. Fielding wrote to counsel for Ms. Miers informing him that the President had decided to assert executive privilege over the substance of Ms. Miers's testimony, and hence she was instructed not to provide any testimony before the Committee.

Pl.'s Mot. Ex. 20. In a July 10, 2007 letter to Mr. Manning, Mr. Fielding explained that OLC had concluded that Ms. Miers was absolutely immune from compelled congressional testimony.

Pl.'s Mot. Ex. 23. He again directed Mr. Manning to ensure that Ms. Miers did not appear to testify before the Committee on July 12, 2007, and attached a copy of OLC's opinion -- also dated July 10, 2007 -- to his letter. Id.

Mr. Manning promptly informed the Committee that Ms. Miers had been instructed not to provide any testimony in response to her subpoena. Chairman Conyers and Chairwoman Sanchez objected to this development, urging Mr. Manning that "[w]e are aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to even appear in response to a Congressional subpoena." Pl.'s Mot. Ex. 25. They warned that Ms. Miers ran the risk of being held in contempt of Congress if she declined to appear. Id. By letter dated July 11, 2007, Mr. Manning confirmed that Ms. Miers would not appear to testify before the Committee on July 12, 2007. Pl.'s Mot. Ex. 26.

When Ms. Miers failed to appear on July 12th, Chairwoman Sanchez decided to reject "Ms. Miers's privilege and immunity claims." Pl.'s Stmt. of Facts ¶ 44. The Subcommittee sustained that determination by a vote of 7-5. Chairman Conyers then delivered a copy of that ruling to Mr. Manning, along with a letter again warning that Ms. Miers could face contempt of Congress charges if she did not comply with the substance of the subpoena. Id. ¶ 45. In response, Mr. Manning restated that Ms. Miers would not appear to testify before the Committee or produce any responsive documents. Id. ¶ 46. On July 19, 2007, Chairman Sanchez again rejected Mr. Bolten's claims of executive privilege and his refusal to produce a privilege log. Id.

¶ 48. That decision was also sustained by the Subcommittee. Chairman Conyers then provided Mr. Fielding with a copy of that ruling and inquired as to whether the White House would comply with the subpoena. Id. ¶ 49. On July 23, 2007, Mr. Fielding informed Chairman Conyers that "the President's position remains unchanged." Pl.'s Mot. Ex. 31.

Frustrated by the Executive's actions, the full Committee met on July 25, 2007 and adopted a resolution "recommending that the House of Representatives find that former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten be cited for contempt of Congress for refusal to comply with subpoenas issued by the Committee." See 153 Cong. Rec. D1051-01 (2007). Chairman Conyers provided Mr. Fielding with a copy of the Committee's report in the hope that it might prompt the White House voluntarily to change its position. See Pl.'s Stmt. of Facts ¶ 52. He received no response. So, on November 5, 2007, the Committee filed its report with the full House of Representatives. Id. ¶ 54. Once again, Chairman Conyers wrote to Mr. Fielding to inform him of that development and to reiterate that the Committee still hoped "to resolve the issue on a cooperative basis"; Chairman Conyers even included "a proposal for resolving the dispute." Id. ¶ 55. This time, Mr. Fielding responded by rejecting Chairman Conyers's offer, explicitly noting that "[w]e are therefore at a most regrettable impasse." Pl.'s Mot. Ex. 34. He urged the Committee to "reconsider its proposed actions" and to accept the President's initial proposal. Id.

With no negotiated solution in sight, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress on February 14, 2008 by a vote of 223-32. Pl.'s Stmt. of Facts ¶ 57.*fn5 The House also passed three accompanying resolutions -- H. Res. 979, 980, and 982 -- that were meant to guide the next steps in the process. Resolution 979, for instance, provided that the Speaker of the House shall certify a copy of the Contempt Report "to the U.S. Attorney for the District of Columbia, 'to the end that Ms. Miers be proceeded against in the manner and form provided by law.'" Pl.'s Stmt of Facts ¶ 58 (quoting H. Res. 979, 110th Cong. (Feb. 14, 2008)). It also provided analogous treatment for Mr. Bolten. Resolution 980 authorized Chairman Conyers to initiate a civil action in federal court to seek declaratory and injunctive relief "affirming the duty of any individual to comply with any subpoena." Id. ¶ 59 (quoting H. Res. 980, 110th Cong. (Feb. 14, 2008)).*fn6

On February 28, 2008, Speaker of the House Nancy Pelosi certified the Contempt Report to Jeffrey A. Taylor, U.S. Attorney for the District of Columbia. Id. ¶ 60. Pursuant to the terms of 2 U.S.C. §§ 192 and 194, Mr. Taylor was directed to present the contempt charges against Ms. Miers and Mr. Bolten to a grand jury. See 2 U.S.C. § 194. On that same day, Speaker Pelosi wrote to Attorney General Michael B. Mukasey. Pl.'s Stmt. of Facts ¶ 62. The Attorney General had previously indicated that he would not permit Mr. Taylor to bring the contempt citations before a grand jury, and Speaker Pelosi "urged him to reconsider his position." Id. The next day, however, the Attorney General responded that because Ms. Miers and Mr. Bolten were acting pursuant to the direct orders of the President, "the Department has determined that non-compliance . . . with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers." Pl.'s Mot. Ex. 40. With criminal enforcement of its subpoenas foreclosed, the Committee -- invoking Resolution 980 -- filed this action seeking a declaratory judgment and other injunctive relief. See Pl.'s Mot. at 14.

The undisputed factual record, then, establishes the following. Notwithstanding a prolonged period of negotiation,*fn7 the parties reached a self-declared impasse with respect to the document production and testimony at issue here. Faced with that reality, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress and certified the Contempt Report to the U.S. Attorney for the District of Columbia to pursue criminal enforcement of the contempt citations. The Attorney General then directed the U.S. Attorney not to proceed against Ms. Miers and Mr. Bolten. The Committee, then, filed this suit seeking civil enforcement of its subpoena authority by way of declaratory and injunctive relief.

The only real factual "dispute" here is which party is responsible for the impasse. Unsurprisingly, each side blames the other. The Committee contends that the Executive proposed an untenable "take it or leave it" offer that would have significantly curtailed the Committee's capacity to perform its oversight duties, and then would not budge from its initial position. The Executive insists that the Committee's proposals "have been substantially the same and one-sided: they propose accommodations on the part of the White House without signaling any willingness on the part of the Committee to accommodate itself to the Presidential interests at stake." Pl.'s Mot. Ex. 34. Hence, it is the Committee (in the Executive's view) that has stonewalled the accommodation process by pressing unreasonable demands that, if accepted, would amount to "incremental Executive Branch abandonment of [the President's] constitutional obligations." Id. Although it is relevant that the political branches have reached an impasse, it is not important to assign blame for purposes of the motions now before the Court.


Because the Executive's motion to dismiss raises threshold issues that may preclude the need to reach the merits of the Committee's claims, the Court will address its motion first. There is one preliminary matter to discuss briefly however. Both sides concede, and the Court agrees, that 28 U.S.C. § 1331 provides subject matter jurisdiction over this lawsuit.*fn8 Because this dispute concerns an allegation that Ms. Miers and Mr. Bolten failed to comply with duly issued congressional subpoenas, and such subpoena power derives implicitly from Article I of the Constitution, this case arises under the Constitution for purposes of § 1331. In Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) ("Senate Select Comm. I"), the court indicated that federal question jurisdiction was properly invoked in a suit by a Senate committee to enforce a subpoena issued to President Nixon provided that the then-existing statutory amount in controversy requirement was satisfied. Id. at 59-61. Although the court ultimately dismissed the case for failure to meet the monetary threshold, that requirement no longer exists and there is no other impediment to invoking § 1331 subject matter jurisdiction here.*fn9 Indeed, in United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976) ("AT&T I"), a case similar to this one, the D.C. Circuit found subject matter jurisdiction pursuant to § 1331 owing to the "fundamental constitutional rights involved." Id. at 388-89.

I. The Executive's Motion to Dismiss

The Executive launches three distinct attacks in its motion to dismiss, raising considerations of standing, cause of action, and equitable discretion. The Court will address each contention in turn, but none provides a basis to dismiss this action.*fn10

A. Standing

Standing is "'an essential and unchanging' predicate to any exercise of jurisdiction" by an Article III federal court. See Am. Chemistry Council v. Dep't of Transp., 468 F.3d 810, 814 (D.C. Cir. 2006) (quoting Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)). "[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "First, 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." Id. (internal quotations and citations omitted). "Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court." Id. (internal quotations and alterations omitted). "Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. (internal quotations omitted). Significantly, the Supreme Court has stressed that the standing inquiry is "especially rigorous" where -- as here -- important separation of powers concerns are implicated by a dispute. See Raines v. Byrd, 521 U.S. 811, 819-20 (1997). In this context, a plaintiff must demonstrate that "the dispute is 'traditionally thought to be capable of resolution through the judicial process.'" Id. at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)).

Here, the principal debate concerns the injury-in-fact prong of the standing analysis.*fn11

The Executive's argument has two constituent parts: first, that the Committee has not suffered a cognizable personal injury that is required for Article III standing; and second, that this is not the type of dispute traditionally capable of resolution before an Article III court.

"[T]he Committee lacks the traditional type of 'personal injury' required under Article III," the Executive insists, id. at 29, and this Court held just that in Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002). Here, the Committee's injury is "governmental" rather than "personal," the argument goes. The fact that the Committee speaks for the entire House of Representatives, rather than for only some Members in their individual capacity, does not transform the underlying nature of the Committee's asserted injury into the appropriate "individual rights" action. That, the Executive says, is the upshot of the Supreme Court's decision in Raines, which jettisoned the concept of so-called "legislative" standing. Raines, 521 U.S. at 820, 829. Like the plaintiffs in Raines, the Committee's "institutional injury . . . is wholly abstract and widely dispersed . . . [and its] attempt to litigate this dispute at this time and in this form is contrary to historical experience." Id. at 829.

Nor can the Committee rely upon the notion of "informational injury" espoused in FEC v. Akins, 524 U.S. 11 (1998), and Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440 (1989).

In those cases Congress had enacted statutes providing private plaintiffs with unqualified legal rights to information -- regardless of the need or the purpose for which information was sought -- and 'the invasion' of those statutory rights was held to inflict a concrete and particular injury supportive of the plaintiffs' standing.

See Defs.' Mot. & Opp'n at 33. There is no such statutory grounding for the Committee's informational injury here. And Article I supplies no "freestanding right to information" but rather merely establishes the general power to perform Congress's legislative function. Id. Once again, the Executive maintains that this Court deemed precisely this asserted injury -- impairment of Congress's ability to legislate due to inability to access documents and testimony -- as inadequate in Walker. The Executive urges the same result here.

The Executive also steadfastly maintains that this dispute is not one traditionally thought to be amenable to judicial resolution. Instead, historical experience demonstrates that the Article III judiciary has been concerned primarily with adjudication concerning individual rights rather than "'some amorphous general supervision of the operations of government.'" See Defs.' Mot. & Opp'n at 26 (quoting United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring)). The type of direct judicial intervention in a dispute between the two political branches requested by the Committee in this case, the Executive argues, "has been virtually unknown in American jurisprudence." Id. As the Executive would have it, this controversy is "perhaps the paradigmatic example of [a] dispute that ha[s] been resolved without resort to judicial process." Id. at 27. The political branches have instead traditionally resolved their differences by the process of negotiation and accommodation. To the Executive, this "200-plus years of constitutional tradition," id. at 28, strongly suggests that the Committee's case is not the type normally amenable to judicial resolution, which in turn implies that the Committee lacks standing to bring the action.

In response, the Committee argues that binding authority establishes that it has standing to enforce congressional subpoenas. In AT&T I, the Committee notes, the D.C. Circuit held that "[i]t is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf." 551 F.2d at 391. That holding conclusively resolves the issue of standing, in the Committee's view. More recently, a three-judge court reiterated that basic principle in U.S. House of Representatives v. U.S. Dep't of Commerce:

[I]t [is] well established that a legislative body suffers a redressable injury when that body cannot receive information necessary to carry out its constitutional responsibilities. This right to receive information arises primarily in subpoena enforcement cases, where a house of Congress or a congressional committee seeks to compel information in aid of its legislative function.

11 F. Supp. 2d 76, 86 (D.D.C. 1998).

Raines and Walker are not to the contrary, the Committee contends, because both are distinguishable. In Raines, the Supreme Court was reluctant to intervene in an intra-branch dispute, but the plaintiffs there were individual Members of Congress who were not authorized to sue on behalf of either House -- indeed, both Houses opposed the lawsuit. Raines, 521 U.S. 829 ("We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit."). There is no such concern here, the Committee points out. The same goes for Walker. There, the Comptroller General sought information on behalf of certain individual Members of Congress; as in Raines, neither House of Congress had authorized the Comptroller General to file a lawsuit. Walker, 230 F. Supp. 2d at 68 ("[I]t is of some importance that, like the plaintiffs in Raines, the Comptroller General here has not been expressly authorized by Congress to represent its interests in this lawsuit.") (internal citations omitted). Here, the argument goes, the asserted injury -- "being denied access to information" that is the subject of a subpoena, see Pl.'s Reply at 26 -- runs to the Committee and it, authorized by the full House, is suing to vindicate an injury that is concrete and personalized to the Committee. Id.

The Court concludes that the Committee has standing. The Committee and several supporting amici are correct that AT&T I is on point and establishes that the Committee has standing to enforce its duly issued subpoena through a civil suit. Moreover, Raines and subsequent cases have not undercut either the precedential value of AT&T I or the force of its reasoning. Finally, United States v. Nixon and Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) ("Senate Select Comm. III"), illustrate that this sort of dispute is traditionally amenable to judicial resolution and consequently justiciable.

The starting point for this analysis is AT&T I. A House subcommittee issued a subpoena to AT&T demanding documents concerning warrantless wiretapping that had been undertaken by the company at the request of the FBI. See 551 F.2d at 385. The executive branch then interceded and engaged the subcommittee in a series of negotiations designed to obviate the need for compulsory process. Id. at 386-87. When negotiations ultimately failed, President Ford directed AT&T -- "as an agent of the United States" -- to ignore the congressional subpoena, but the company indicated that it would comply because it believed that it was legally obligated to do so. Id. at 385-87. "The Justice Department therefore brought an action in the name of the United States . . . and obtained a temporary restraining order prohibiting AT&T from complying with the Subcommittee subpoena." Id. at 387. Thereafter, the chairman of the subcommittee intervened as a defendant. Id. The district court issued a permanent injunction against compliance with the subpoena, deferring to the President's determination that execution of the subpoena would pose unacceptable risks of the disclosure of extremely sensitive intelligence information and would be detrimental to the national security. Id. at 387-88.

On appeal, the D.C. Circuit found jurisdiction pursuant to § 1331, noting that "[a]lthough this suit was brought in the name of the United States against AT&T, AT&T has no interest in this case, except to determine its legal duty." Id. at 388-89. Instead, the lawsuit was more properly viewed "as a clash of the powers of the legislative and executive branches of the United States." Id. at 389. On the question of justiciability, the court reasoned that Senate Select Comm. and United States v. Nixon established that "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." Id. at 390. Because the court remanded the case for further negotiations between the branches, however, it had no occasion to "balance the constitutional interests raised by the parties, including such factors as the strength of Congress's need for the information in the request letters . . . and the seriousness of the harm to national security" from the potential leak of that information. Id. at 391.*fn12 The court did conclude, however, that "[i]t is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf." Id.

In the face of that clear statement, the Executive attempts both to distinguish AT&T I from this case and to argue that subsequent decisions have eviscerated its precedential weight. Neither attempt is persuasive. To begin with, the Executive argues that AT&T I is inapposite because it did not involve compelling executive branch officials to testify before Congress in response to a subpoena. That is technically true, but the Executive overlooks the court's express conclusion that -- in a contest between the executive and legislative branches over compliance with a duly issued congressional subpoena -- the House has standing to invoke the federal judicial power to aid its investigative function. There is no suggestion whatsoever in AT&T I that the House's standing in that capacity is limited to situations where the ultimate subpoena respondent is a private party. Moreover, the Executive ignores the fact that President Ford explicitly referred to AT&T as "an ...

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