Good Governance Paper No. 2: The Congressional Subpoena Power

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

Executive Branch resistance to Congress’s requests for information about the administration it oversees, authorizes, and funds has grown increasingly audacious, disrupting the ability of the nation’s legislature to do its job. In the face of assertions of absolute immunity, expansive claims of executive privilege, and other refusals to provide testimony and documentary evidence, Congress has issued subpoenas—only to discover that it often has no effective means of enforcing them. To reverse the erosion of norms regarding congressional access to information, Congress should enact legislation to authorize and streamline judicial enforcement of congressional subpoenas. Giving Congress a viable enforcement mechanism will render executive stonewalling much more difficult and incentivize a return to the traditional method of settling interbranch information disputes—negotiation and mutual accommodation.

The Problem – An Illustrative Case Study

The House Judiciary Committee’s efforts to secure the testimony of former White House Counsel Don McGahn as part of its impeachment investigation of President Donald Trump starkly presents the problem. Congress requested and then subpoenaed McGahn’s testimony regarding potential instances of obstruction of justice detailed in Special Counsel Robert Mueller’s report. When McGahn indicated that, on instruction by the White House, that he would disregard the subpoena, the Committee filed suit seeking to compel McGahn’s testimony. More than a year and three appeals court decisions later, that suit remains in its preliminary stages. A new round of appeals is expected from a D.C. Circuit ruling that the Judiciary Committee lacks a cause of action. Any final resolution of the dispute remains months, if not years, away. The McGahn case thus illustrates Congress’s inability to enforce duly issued subpoenas and, as a result, its inability to secure from the executive-branch the information it requires. Similar stories can be told about clashes in each presidential administration going back at least to Ronald Reagan. And while the branches were successful in negotiating resolutions with one another in some of these incidents, such resolutions often were prompted by judicial intervention.

The Executive’s Increased Recalcitrance and Congress’s Resort to the Courts

The McGahn case is merely the culmination of a trend. Clashes between Congress and the executive over access to information are themselves nothing new. Historically, the political branches resolved such disputes through inter-branch negotiations, finding ways to balance Congress’s investigative needs with the executive’s legitimate confidentiality interests, almost always without recourse to the courts. In recent decades, however, these disputes have intensified, and congressional efforts to acquire documents and testimony have, with increased frequency, been met with executive stonewalling.

The past several administrations have justified rejecting congressional information requests, even when issued in the form of subpoenas, by aggressively deploying legal doctrines—developed and articulated unilaterally by the executive branch—of dubious validity. More specifically, the executive has advanced increasingly broad conceptions of executive privilege as well as claims of complete testimonial immunity for both current and former executive-branch officials. In addition, it has met Congress’s resort to the courts for aid in enforcing subpoenas with similarly audacious doctrinal challenges to Congress’s right to sue, arguing that courts lack jurisdiction over such suits and that Congress lacks a cause of action.

These tactics were on display in the efforts of Eric Holder’s Justice Department to deny congressional access to information regarding the gun-running investigation known as Operation Fast and Furious as well as the House Judiciary Committee’s thwarted efforts to acquire evidence regarding George W. Bush’s motivations for firing multiple U.S. Attorneys in 2006. In the Fast and Furious case, for example, a resolution required nine district and circuit court opinions over more than four years, with the final subpoenaed documents produced only after President Obama and Attorney General Holder had left office. The Trump administration took these efforts to their logical extreme during the recent impeachment investigation, with the president rejecting wholesale all legislative information requests.

Under current circumstances, Congress cannot win. In fact, courts that have reviewed these muscular justiciability, privilege, and immunity assertions have consistently rejected them out of hand. Nevertheless, the executive branch continues to assert them because its goal is not to advance persuasive legal arguments but to delay as long as possible. When Congress and the executive branch clash over congressional access to executive branch information, the executive will always have the structural advantage:  if nothing happens, the executive branch attains its desired outcome. It therefore relies upon the often glacial pace of judicial proceedings to avoid providing Congress timely information, knowing that delay by any means is often almost as effective as an outright victory. Each issue that the executive raises—jurisdiction, standing, the existence of a sufficient cause of action—represents months of litigation. And that’s before a court even begins to assess the validity of the subpoena itself or whether any of the information it seeks is subject to a legitimate executive privilege.

It was the prospect of this indefinite delay that prompted the House of Representatives to commence (and conclude) impeachment proceedings without waiting for a resolution of its case against McGahn—proceedings that would still be on hold if the House decided to wait for the courts. In the absence of meaningful consequences for such brazen disregard of Congress’s interests, the executive has every reason to simply opt out of our system of separation of powers.

Congress’s Existing Tools Are Insufficient

Some commentators argue that Congress has numerous tools to encourage the executive branch to compromise, rendering judicial intervention unnecessary or inappropriate. Congressional subpoenas used to be near the top of the list of tools to which Congress could turn to dislodge information. When the executive simply refuses to comply, however, subpoenas are unavailing. Equally impotent have been congressional efforts to hold executive officials in contempt because the executive will not pursue contempt of Congress charges against its own officials.

And while Congress retains sources of leverage it could call upon, they have proven too blunt or nonviable politically. Holding appropriations or confirmations hostage to information would force Congress to disrupt other areas of governance to exercise its constitutionally assigned investigation and oversight functions. Similarly problematic is Congress’s inherent contempt power to arrest and forcefully bring wayward witnesses to the capitol brig, which has not been used in over 80 years, is impractical, and in a worst case scenario could potentially lead to violent confrontation. And this past winter, we saw that even impeachment, long considered Congress’s nuclear option when it comes to investigative power, could not overcome a sufficiently recalcitrant executive, at least when either house is in the hands of the same party as the president.

A Solution

Congress should reinvigorate the power of its congressional subpoenas by enacting legislation to mitigate some of the drawbacks of litigation. Perhaps counterintuitively, the more efficacious the litigation regime, the less need for it there will be. The specter of a rapid judicial decision on the merits of any particular information request should revive the practice of inter-branch negotiations and accommodations, where both sides have some control over the outcome.

Any effort to facilitate such bargaining in the shadow of the law must address two issues. First, the pace of litigation, and second (and relatedly), the uncertainty surrounding the threshold questions the executive raises at the outset of litigation over congressional subpoenas. These cases must both move expeditiously and from their inception focus on the merits—whether Congress is entitled to the information it seeks or the executive branch is entitled to withhold it.

While not a panacea, congressional enactment of statutory provisions on the following topics would go a long way toward furthering these goals:

(1)  Standing
(2)  Jurisdiction and causes of action
(3)  Three-judge panel with direct appeal to the Supreme Court
(4)  Expedited schedule
(5)  Requirement for mutual accommodation & exhaustion of negotiations

Some of these suggestions—including the codification of a cause of action and a provision for expedited judicial proceedings to enforce congressional subpoenas—actually form part of the Protecting Our Democracy Act, a bill recently introduced in the House of Representatives. Here, I briefly summarize the purposes of each of the recommended legislative provisions.  Model legislative language appears below.

Standing. Congress could statutorily affirm that when a majority of a congressional committee or subcommittee chooses to bring a suit to enforce its subpoenas, that committee or subcommittee has standing. Multiple courts have already held that such a statutory grant of standing to congressional bodies is constitutional.

Jurisdiction and Cause of ActionCongress could explicitly authorize courts to adjudicate congressional-executive information disputes. This would eliminate any lingering doubt regarding whether the courts have jurisdiction or whether a cause of action exists, thereby jettisoning the delays of litigating over these questions.

Three-Judge Panel and Direct Appeal to Supreme Court. Congress could specify that such disputes should be heard by three-judge district court panels.  Three-judge panels have three advantages here. First, the statutory committal of a case to a three-judge panel impresses upon the participating judges the serious nature of the dispute. Second, in cases apt to be viewed through a partisan lens, a determination from three judges is likely to enjoy more respect and legitimacy than a lone judge’s ruling. Finally, direct appeal to the Supreme Court from a three-judge district court panel will expedite the appeals process.

Expedited Schedule. Requiring timely decisions from a neutral adjudicator constrains executive stratagems to use that branch’s informational monopoly to stall disclosure.

Mutual Good Faith Accommodation & Negotiation. Because negotiations remain the fastest and least combative way to resolve inter-branch battles over information, Congress could codify the age-old understanding that the parties are obliged to make a good faith effort to negotiate, compromise, and reach accommodation with each other before turning to the courts. As the D.C. Circuit noted in 1977, such mutual accommodation is constitutionally compelled: “[A] spirit of dynamic compromise [should] promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system,” explaining that “each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches.” Courts should not intervene in congressional-executive disputes unless and unless and until progress on resolving the dispute has stopped and good faith negotiations have broken down. Courts should not, however, permit delays disguised as good faith negotiations to preclude hearing and ruling on a case.

As with any authority, there is of course the possibility that legislative committees might at times employ these enhanced powers of litigation to engage in executive harassment, rather than legitimate oversight or investigative activity. The executive is, as the Supreme Court pointed out this summer, free to raise arguments in the litigation that a subpoena is overbroad or otherwise inappropriate. But if the choice is between an impotent legislature and the risk of an occasionally overzealous congressional committee, it seems to me that the former currently poses the greater danger.

The executive also could help pave a more productive path forward by reaffirming a memorandum issued by Ronald Reagan in 1982 laying out procedures to employ “whenever Congressional requests for information raise concerns regarding confidentiality. The memo explicitly states that it is executive branch policy to “comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch,” commits to employing the “tradition of accommodation” between Congress and the executive branch as “the primary means of resolving conflicts between the Branches,” and requires assertions of executive privilege to come from the president himself, rather than cabinet or sub-cabinet level officials. Such a message from the top of the executive branch could go a long way to setting a tone of cooperation and accommodation that would alleviate the need for Congress even to issue subpoenas, much less turn to the courts.

Model Legislative Language

Sec. 101  Standing
“A congressional committee of the House or Senate that elects by a majority vote to bring a specific civil action to enforce a duly issued subpoena has standing to bring a civil action in the U.S. District Court for the District of Columbia to compel compliance with that subpoena issued to any witness, including an officer, employee, contractor, or other agent of the United States. The District Court shall order production if that witness has failed to comply with the terms of the subpoena.”

Sec. 102  Jurisdiction & Cause of Action
“In addition to the subject matter jurisdiction available under 28 U.S.C. § 1331, the District Court for the District of Columbia shall have original, exclusive jurisdiction over any civil action to enforce a duly issued subpoena brought by any Senate or House committee. When an authorized committee or subcommittee brings such a suit in the federal courts, the courts shall exercise subject-matter jurisdiction over the matter and shall find that a justiciable cause of action exists.”

Sec. 103  Three-Judge Panel and Direct Appeal
“Any civil action brought pursuant to this statute shall be heard and adjudicated by three judges appointed in accordance with 28 U.S.C. § 2284. Any party may appeal the decision of the panel directly to the Supreme Court in accordance with 28 U.S.C. § 1253.”

Sec. 104  Expedited Schedule
“The federal courts shall place any action filed pursuant to this statute on an expedited schedule and make its timely resolution a priority.”

Sec. 105  Mutual Good Faith Negotiation
“Congress and the executive branch shall engage in good faith negotiations and compromise to accommodate one another’s needs and to respect one another’s constitutional prerogatives. No House of Congress, or any committee or subcommittee thereof, shall bring a civil action as authorized herein until the committee of jurisdiction has attempted to secure the subpoenaed information through good faith negotiations with the executive branch and those negotiations have failed within a reasonable period of time to produce a resolution of the dispute.” 

About the Author(s)

Emily Berman

Associate Professor of Law at the University of Houston Law Center