Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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

United States District Court, District of Columbia

November 25, 2019

COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff,
v.
DONALD F. MCGAHN II, Defendant.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON United States District Judge.

         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

         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.).

         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 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 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 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- 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 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 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 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 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).)

         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 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 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 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 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. 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 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 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.

         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.

(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 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 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 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 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.