In Committee on the Judiciary of the US House of Representatives v Donald F McGahn II , the Committee on the Judiciary of the US House of Representatives was seeking to enforce a Subpoena to Appear served on former White House Counsel, Don McGahn II, in the US District Court for the District of Columbia, before United States District Judge Ketanji Brown Jackson. The US Department of Justice (DOJ) opposed the order, arguing that the Judiciary Committee has no right to enforce its subpoenas against senior level presidential aides in federal court, that federal courts have no jurisdiction over such enforcement claims, and, critically, that such senior level presidential aides have absolute immunity from testifying where the President orders them not to do so. Judge Jackson rejected the DOJ arguments, and ordered Mr McGahn to testify.
The issues were articulated by Judge Jackson:
The merits legal issues that the instant dispute between the House Judiciary Committee and the Executive branch raises are straightforward. The Committee claims that it has issued a lawful subpoena to former White House Counsel Donald F. McGahn II …; that McGahn has refused to appear before the Committee to provide testimony as required …. ; and that “[t]here is no lawful basis for McGahn’s refusal to appear before the Judiciary Committee”…). For its part, DOJ asserts that, consistent with its understanding of the longstanding view of the Department’s Office of Legal Counsel, there is a lawful basis for McGahn’s defiance of the Committee’s valid subpoena: the President has ordered him not to. … DOJ asserts that current and former senior-level presidential aides have “absolute testimonial immunity” from compelled congressional process, as a matter of law; therefore, if the President invokes “executive privilege” over a current or former aides’ testimony—as he has done with respect to McGahn—that aide need not accede to the lawful demands of Congress. …
Judge Jackson wasn’t buying the DOJ arguments. Her Honour found as follows:
A. Federal Courts Have The Power To Adjudicate Subpoena-Related Disputes Between Congress And The Executive Branch
1. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over Subpoena-Enforcement Claims Under 28 U.S.C. § 1331
2. Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute
a. The legal claim at issue here is not non-justiciable
b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process
DOJ argued that: “centuries of historical practice” … plainly demonstrates that the U.S. Constitution does not contemplate that the federal courts have the power to exercise jurisdiction over subpoena-related disputes between the Congress and the Executive branch. Her Honour rejected that argument, referring to Watkins v. United States 354 U.S. 178 (1957), in which then US Supreme Court Chief Justice Earl Warren had set out a: detailed and remarkable story of the legislative power of inquiry as it existed in seventeenth century England, and in particular, of Parliament’s “broad and varied use of the contempt power” to enforce its own mandates, as well as its reservation unto itself of “absolute and plenary authority over . . . privileges[,]” Judge Jackson then noted Chief Justice Warren’s view in relation to the US courts:
… Fatefully, and importantly, the Houses of Parliament expressly decided that “judicial review of the exercise of the contempt power or the assertion of privilege” would be “precluded[,]” id. at 188. And apparently as a direct consequence of Parliament’s determination “that no court had jurisdiction to consider such questions[,]” the unreviewable contempt power that Parliament had claimed was, predictably, “abused.” … Significantly for present purposes, Chief Justice Warren takes care to emphasize that, “[i]n the early days of the United States, there lingered direct knowledge of the evil effects of absolute power[,]” id. at 192, and thus, “[f]rom the very outset the use of contempt power by the legislature was deemed subject to judicial review[,]” … This is a much different narrative about the historical understanding of the ability of the courts to entertain claims concerning the enforceability of a legislative subpoena than DOJ offers here…. Watkins also touched upon the fact that the Supreme Court had previously considered the competing interests of the Executive and the Legislature with respect to subpoenas pertaining to legislative investigations, and had suggested caution with respect to the merits of claims that the Congress had overstepped its bounds, given “the danger to effective and honest conduct of the Government if the legislature’s power to probe corruption in the executive branch were unduly hampered.” Id. at 194–95 (first citing McGrain, 273 U.S. at 194–95, and then Sinclair, 279 U.S. at 263). This, too, indicates that the Supreme Court’s primary concern about the exercise of judicial authority was that judges might be too aggressive concerning the remedies they ordered with respect to adjudicating challenges to compelled congressional process, not that the federal courts lacked the authority to even entertain such claims. Consequently, DOJ’s present suggestion that the history of our constitutional Republic simply does not contemplate that the other branches of government would enlist the Judiciary to resolve disputes over the scope of compelled congressional process in the context of legislative investigations—and thus that a federal court oversteps its bounds if it exercises subject-matter jurisdiction over a claim like the one the Judiciary Committee brings here …. seems inconsistent with Watkins’s clear assessment that the federal courts of the United States have always had to power to review legal claims with respect to subpoena-enforcement actions, and once again, it is well established that subject-matter jurisdiction generally turns on the legal claim being asserted regardless of who makes it. Indeed, the Watkins Court specifically noted that federal courts possess a “responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly[,]” id. at 198–99, while at the same time, they must take care to provide “ample scope . . . to the Congress as the sole constitutional depository of legislative power[,]” id. at 215; see also, e.g., id. at 216. And DOJ does not, and apparently cannot, explain why this constitutional duty disappears, or is neutralized, if the subpoena-related dispute arises between branches of government, rather than between Congress and an individual party who contends that the Legislature’s compelled congressional process is unlawful.
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
B. House Committees Have The Power To Enforce Their Subpoenas In Federal Court When Executive Branch Officials Do Not Respond As Required
a. 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
b. The Constitution Itself Provides A Cause Of Action For A Thwarted House Committee To Proceed In Federal Court
c. There Is No Separation-Of-Powers Impediment To The Judiciary Committee’s Seeking To Vindicate Its Rights In Federal Court
2. The President Does Not Have The Power To Prevent His Aides From Responding To Legislative Subpoenas On The Basis Of Absolute Testimonial Immunity
a. Miers Squarely Rejects The Argument Senior-Level Presidential Aides Enjoy Absolute Testimonial Immunity
(Her Honour referred to the 2008 Federal Court decision in relation to former Clinton administration White Counsel Harriet Miers and Chief of Staff Joshua Bolten, Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), The Clinton DOJ had made the same arguments then as were made by the Trump DOJ now. Judge Jackson: “The more things change, the more they are the same.” Judge Jackson noted that, in Miers, the District Court had considered each of the same arguments, and rejected each one in a lengthy opinion:
…. 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.
b. OLC’s Long-Held View That Senior-Level Presidential Aides Have Absolute Testimonial Immunity Is Neither Precedential Nor Persuasive
(Her Honour referred to, and rejected, the DOJ argument that senior level presidential aides have absolute testimonial immunity, dating back to the 1971 Memorandum from William H. Rehnquist, then Assistant Attorney General, Office of Legal Counsel, later US Supreme Court judge and then US Supreme Court Chief Justice, to John D. Ehrlichman, Nixon administration Assistant to the President for Domestic Affairs, Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff”, saying:
it is certainly true that (DOJ’s Office of Legal Counsel) OLC has long been of the view that senior-level presidential aides have absolute testimonial immunity; indeed, as Miers indicates, the first recorded statement of the agency that specifically commits this view to writing was authored in 1971. See Mem. from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, to John D. Ehrlichman, Assistant to the President for Domestic Affairs, Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff” (Feb. 5, 1971) (“1971 Memorandum”). In that year, then-Assistant Attorney General William Rehnquist produced a memorandum on the point that maintained (without direct citation) that “[t]he President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis—should be deemed absolutely immune from testimonial compulsion by a congressional committee.” Id. at 7. This OLC memorandum further indicated that such persons “not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee.” Id. But, of course, as definitive as this statement of law sounds, OLC serves as legal counsel to the Executive branch, and “the Executive cannot be the judge of its own privilege[.]” Miers, 558 F. Supp. 2d at 106. Consequently, its statement of the law is “entitled to only as much weight as the force of [its] reasoning will support.” Id. at 104.
In this Court’s view, the persuasiveness of OLC opinion that senior-level presidential aides enjoy immunity from compelled congressional process turns on two familiar factors: the authority that is provided in support of this proposition, and the reasons that are provided for why the author reached this conclusion. With respect to the first consideration, it cannot be overstated that the 1971 Memorandum does not cite to a single case that stands for the asserted proposition, and the ten-plus subsequent statements by OLC that DOJ points to in support of this immunity simply reference back to the 1971 Memorandum without providing any court authority. It goes without saying that longevity alone does not transform an unsupported notion into law.
As for the logic behind the view, the original memorandum appears to reason by … analogy. It begins by recognizing the breadth of Congress’ power of inquiry, which admittedly “carries with it the power to compel the testimony of a witness.” 1971 Mem. at 1. And then as if providing the solution to a problem that it had not yet identified, the memo states that “if White House staff personnel are to be exempt from appearing or testifying before a congressional committee, it is because they have some special immunity or privilege not accorded others.” Id. at 1. The remainder of the 8-page document devotes itself to developing potential reasons for such a privilege. It suggests, for example, “a certain analogy to judicial proceedings[,]” in which a “distinction” is made “between a claim of absolute immunity from even being sworn in as a witness, and a right to claim privilege in answering certain questions in the course of one’s testimony as a witness.” Id. at 4.
Ultimately, the 1971 Memorandum pushes for the former, on the basis of a handful of historical examples in which former assistants to various Presidents blatantly refused to appear before Congress in response to a legislative subpoena. See id. at 5–6. At least one of these folks was apparently polite enough to write a letter to the committee that “grounded his refusal on the confidential nature of his relationship with the President.” Id. at 5. But others merely sent congressional subpoenas back with the simple statement that “[i]n each instance that President directed me, in view of my duties as his Assistant, not to appear before your subcommittee.” Id. at 5; see also id. at 6.
Tellingly, the 1971 Memorandum does not purport to suggest that the law already countenanced such behavior. Rather, the posture of the Memorandum appears to be a policy piece that provides its client with arguments for why it should be thus. Moreover, as Miers notes, Rehnquist admitted that “his conclusions [were] ‘tentative and sketchy,’” Miers, 558 F. Supp. 2d at 104 (quoting 1971 Mem.at 7), and in his later role as a Supreme Court Justice, he “apparently recanted those views[,]” id. In one especially candid moment in the text of the Memorandum, Rehnquist admits that the historical precedents for refusing a congressional subpoena “are obviously quite inconclusive” but that “[i]n a strictly tactical sense, the Executive Branch has a headstart in any controversy with the Legislative Branch, since the Legislative Branch wants something the Executive Branch has, and therefore the initiative lies with the former.” 1971 Mem. at 7. He continued: “[a]ll the Executive has to do is maintain the status quo and he prevails.” Id. It is not surprising that, per this initial internal effort to establish the ways in which certain White House staff could prevail in any conflict with Congress over their legally enforceable duty to appear for testimony when subpoenaed, OLC subsequently developed an entire series of statements, each of which references the 1971 Memorandum, but none of which specifically acknowledges that the initial basis for this conclusion was seemingly formed out of nothing.28
In fairness, over time, the initial take on absolute testimonial evolved. It appears that OLC’s subsequent statements in support of this proposition were beefed up with various other reasons for why one could plausibly assert that certain aides of the President should be absolutely immune from having to testify before Congress, which reasons largely invoke constitutional separation of powers concerns, including potential harassment of the aides (and thus, the President), the risk of disclosure of information covered by executive privilege, and the appearance that the Executive branch is subordinate to the Legislature. ….
But, unfortunately for DOJ, its mere recantation of these aspirational assertions does not make the proposition any more persuasive, and in fact, given the history of how OLC’s opinion has developed, it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit. Furthermore, because there are few, if any, well-formulated justifications for categorically excusing current and former senior-level presidential aides from responding to compelled congressional process, it would be difficult to do so consistent with existing case law, traditional norms of practice under our constitutional system of government, and common sense.
c. There Is No Principled Basis For Concluding That Senior-Level Presidential Aides Should Have Absolute Testimonial Immunity
Judge Jackson rejected the DOJ argument that, on principle, senior level presidential aides should have absolute testimonial Immunity. DOJ argued that, firstly the President has absolute testimonial immunity from congressional process, and secondly, as a derivative matter, so too must immediate advisers to the President, with whom the President meets on a regular or frequent basis, have such absolute testimonial immunity from congressional process. Her Honour rejected the first claim, agreeing with Miers assessment of United States v. Nixon, Clinton v. Jones, and Harlow v. Fitzgerald. Separately, Her Honour rejected the principled justifications argued by DOJ (including, that this was akin to immunity from civil damages for legislators, that absolute immunity would facilitate frank communications in the White House, that without absolute testimonial immunity government would grind to a halt, and that absolute testimonial immunity is consistent with the separation of powers doctrine). Her Honour concluded:
DOJ’s assertions about the chilling effect of compelled congressional process also imply that congressional questioning is needlessly intrusive and unwarranted, and that characterization drastically discounts the reasons why executive branch officials, including members of the President’s staff, are called to testify. As the Supreme Court has suggested on numerous occasions, Congress brings in witnesses not as punishment, but to provide the Legislature with the information that it needs to perform its critical legislative and oversight functions. Watkins, 354 U.S. at 187; McGrain, 273 U.S. at 17 ….
d. Concluding That Presidential Aides Enjoy Absolute Testimonial Immunity At The President’s Discretion Conflicts With Core Constitutional Norms
Her Honour said, in relation to the DOJ claim that it is the President who controls whether such aide provides any testimony whatsoever:
Finally, the Court turns to DOJ’s contention that, quite apart from the accepted ability of a President to invoke executive privilege to protect confidential information during the course of aides’ testimony before Congress, as a matter of law, it is the President who controls whether such aide provides any testimony whatsoever. During the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke absolute testimonial immunity with respect to current and former senior-level aides belongs to the President…. (“[T]he President owns the privilege here. So he is the owner of Mr. McGahn’s absolute immunity from compulsion[.]”) … (“[T]he President owns the privilege as to former officials with the same vigor with which he owns it to current officials.”), …. (maintaining that immunity is “the President’s to assert”).) And when asked whether this power of the Executive is limited to such aides’ communications with Congress in particular, or also extends to preventing his aides from speaking to anyone else (e.g., the media) even after their departure from the White House, counsel indicated that while the Executive branch has “not taken a position on that,” it was “definitely not disclaiming that.” …. This single exchange—which brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life—highlights the startling and untenable implications of DOJ’s absolute testimonial immunity argument, and also amply demonstrates its incompatibility with our constitutional scheme. …. Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.
…. with the exception of the recognized restrictions on the ability of current and former public officials to disclose certain protected information, such officials (including senior-level presidential aides) still enjoy the full measure of freedom that the Constitution affords. Thus, DOJ’s present assertion that the absolute testimonial immunity that senior-level presidential aides possess is, ultimately, owned by the President, and can be invoked by the President to overcome the aides’ own will to testify, is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.
Judge Jackson concludes as follows:
…. The United States of America has a government of laws and not of men. The Constitution and federal law set the boundaries of what is acceptable conduct, and for this reason, as explained above, when there is a dispute between the Legislature and the Executive branch over what the law requires about the circumstances under which government officials must act, the Judiciary has the authority, and the responsibility, to decide the issue. Moreover, as relevant here, when the issue in dispute is whether a government official has the duty to respond to a subpoena that a duly authorized committee of the House of Representatives has issued pursuant to its Article I authority, the official’s defiance unquestionably inflicts a cognizable injury on Congress, and thereby, substantially harms the national interest as well. These injuries give rise to a right of a congressional committee to seek to vindicate its constitutionally conferred investigative power in the context of a civil action filed in court.
Notably, whether or not the law requires the recalcitrant official to release the testimonial information that the congressional committee requests is a separate question, and one that will depend in large part on whether the requested information is itself subject to withholding consistent with the law on the basis of a recognized privilege. But as far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.
….. This result is unavoidable as a matter of basic constitutional law, as the Miers court recognized more than a decade ago. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth. Nor is the power of the Executive unfairly or improperly diminished when the Judiciary mandates adherence to the law and thus refuses to recognize a veto-like discretionary power of the President to cancel his subordinates’ legal obligations. To the contrary, when a duly authorized committee of Congress issues a valid subpoena to a current or former Executive branch official, and thereafter, a federal court determines that the subpoenaed official does, as a matter of law, have a duty to respond notwithstanding any contrary order of the President, the venerated constitutional principles that animate the structure of our government and undergird our most vital democratic institutions are preserved.
Judge Jackson can really write. This an awesome judgment. DOJ has already filed an appeal, it will be fascinating to see how far up the issue goes. Interestingly, this subpoena was served in relation to the Mueller Report, no doubt principally in relation to the obstruction of justice conclusions by Robert Mueller. But we are nearly certain to see these principles come into play in relation to the current Ukraine-related impeachment process.