United States District Court, District of Columbia
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,
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