In a federal court case last week, a significant divergence of views between the House of Representatives and the Biden administration arose over how to proceed in congressional subpoena litigation. At issue before the full (en banc) U.S. Court of Appeals for the D.C. Circuit is the House Judiciary Committee’s years-long effort to obtain the testimony of a former White House Counsel who left the Trump administration in late 2018.

At the request of the Department of Justice, and over the clear objection of the House Judiciary Committee, the court postponed oral argument from February 23rd until late April. This scheduling skirmish exposes institutional tensions that transcend the partisan incentives of “unified government” with Democrats in charge at both ends of Pennsylvania Avenue.

While unified government reduces an administration’s risks of partisan congressional investigations, it does not eliminate institutional tensions between the two branches. The shift in partisan control instead exposes institutional and political friction that grinds between the separation of powers (testing congressional-executive relations) and between successive administrations (testing presidential comity with the prior administration). In this brief analysis, I discuss the current rift and explain why it is predictable given the parties’ divergent institutional perspectives. Indeed, the case is a harbinger of more episodes like it to come.

The McGahn Case

Former White House Counsel McGahn was a key fact witness to several episodes detailed in Robert Mueller’s report on Russia’s interference in the 2016 election and President Donald Trump’s attempts to obstruct Mueller’s investigation. The House Judiciary Committee invited, and then subpoenaed, McGahn to testify directly about those issues. President Trump then directed McGahn, at that point a former employee, not to comply with the subpoena. Thereafter, the Committee filed suit seeking to enforce its subpoena. 

Threshold questions: Issues of standing and causes of action

This is the second time this case has come before an en banc panel of the D.C. Circuit. The first time, the full court held that the House had Article III standing to pursue its subpoena enforcement claims in federal court, but it remanded the case to a three-judge panel to address unresolved issues. 

Those residual issues included whether the House had a cause of action and, if so, whether that cause of action could proceed in the face of the Trump administration’s claim of absolute testimonial immunity for former close presidential advisers. The Judiciary Committee argued that it had three different viable causes of action: (1) an implied right to seek judicial relief flowing from Article I of the Constitution, (2) a common law right to seek relief from federal courts as courts of equity, and (3) by an authorization contained within the Declaratory Judgment Act. Over a vigorous dissent, the remand panel disagreed, holding that none of those sources would sustain the House’s cause of action. It focused on the absence of a statute expressly authorizing such lawsuits, especially in light of a statute providing for Senate subpoena enforcement lawsuits. As such, the panel did not reach the executive branch claim of absolute immunity.

The Biden Administration Filing

On February 17th, the Justice Department, as counsel for McGahn as a former administration official, filed a “Motion to Postpone Oral Argument” which had been scheduled for February 23rd.

[A]lthough the Executive Branch is prepared to proceed with the en banc argument as scheduled, we respectfully request that the Court postpone oral argument for at least 45 days, to a date that is convenient for the Court. This case implicates “nerve-center constitutional questions” concerning the respective constitutional prerogatives of Congress and the President. United States v. AT&T I, 551 F.2d 384, 394 (D.C. Cir. 1976). As this Court has stressed, “[a] compromise worked out between the branches is most likely to meet their essential needs and the country’s constitutional balance.” Id. at 390. It is in the interest of all concerned to allow sufficient time and opportunity for the Branches to seek a compromise in this case.

The House opposed the effort to postpone the oral argument, arguing that settlement negotiations are unlikely to result in a resolution and that the court should stick to its schedule.

DOJ seeks to postpone the argument after change in Presidential Administrations to explore the possibility of resolving this case without further litigation. We appreciate the Biden Administration’s efforts to settle this case, and we have actively participated in those efforts. But we do not believe that postponing the argument will improve the prospect of a settlement or serve the interests of judicial efficiency or fairness to the parties.

The House emphasized its waning patience: “Given this history and the already lengthy delays that have prevented the Committee from obtaining McGahn’s testimony, further delay in this case would be inappropriate.” The next day, the Court granted the Justice Department’s motion, and rescheduled the McGahn oral argument for April 27, with a status report to be filed by March 25.

So why would the Biden administration oppose an en banc oral argument in a case about whether President Trump’s former White House Counsel can testify about President Trump’s alleged obstruction of justice? The answer is rooted in separation of powers, presidential comity, and political self-interest.

Separation of Powers

The longstanding struggle over information access between Congress and the Executive takes on a new cast with each new composition of Congress and each new occupant of the White House. But, as I noted in a (pre-Trump era) law review article, Constitutional Conflict and Congressional Oversight, there are some fairly stable institutional dynamics.

Congress needs to upend the status quo in order to obtain documents from the executive branch. In turn, the executive branch benefits from the status quo when resisting a congressional inquiry. Flowing from those fundamental dynamics, each branch developed legal doctrine that reads the relevant constitutional obligations in a manner that furthers self-serving goals. Congress adopts a hierarchical model of legal entitlement to executive branch documents (often finding common cause with a press corps with a vested interest in prying information from a recalcitrant executive). To Congress, it has oversight power grounded in the Constitution, with subpoena power to back up its legal entitlement to executive branch records. 

In contrast, the executive branch has adopted a transactional model, focused on a negotiation among “co-equal” branches. The AT&T case cited in the Justice Department’s motion is an executive branch favorite to advance the primacy of negotiation. Under this model, Congress has legitimate informational needs that must be balanced against longstanding executive branch confidentiality interests. 

The executive branch has long asserted — well before the Trump era — that close presidential advisors enjoy immunity from compelled congressional testimony about their official duties. (A legal opinion issued by the Obama Justice Department’s Office of Legal Counsel is one of the most strongly worded on the issue of absolute immunity.) The Department of Justice career litigation team members on this case are likely concerned that the executive branch may lose the case, which would deal a blow to the institutional position of the executive branch. At the political level, Biden administration officials would likely be concerned that such precedent would weaken its hand in future efforts to assert immunity of White House aides. As Charlie Savage reported, “the officials who now run the executive branch, especially President Biden’s White House lawyers, are hesitant about establishing a precedent that Republicans might someday use to force them to testify about their own internal matters.” Those officials are likely also worried of such downstream effects no matter which party holds the gavel. 

Comity Among Presidents

One of the arguments advanced by the House for the need to keep the oral argument date is the expectation that the Biden administration will consult with McGahn and Trump as part of the proposed negotiations. That would be consistent with the need to bring all the interested parties necessary to any settlement. Consultation with prior presidents as to releases of their records are embedded in National Archives guidance which require notice to the current White House Counsel’s Office prior to any release of a prior President’s record that is otherwise nonpublic. As NARA guidance notes:

The purpose of the notification is to give Counsel, on behalf of the incumbent President, the right to assert applicable constitutionally based privileges to prohibit access to or release of Presidential or Vice Presidential records. Although these records were created by a prior President, the incumbent President may believe that it is appropriate to assert Executive Privilege to bar the release of these records. 

Thus, the “one president at a time” principle renders the current White House occupant the ultimate decision-maker with regard to releases of material sought by Congress about a prior administration. 

That consultation can reveal tensions in a number of directions. As the NARA guidance suggests, a prior president might want something released only to have it blocked by the current occupant. Or, there is a request for information that a prior administration would like to withhold but the current administration is less motivated to do so — as is likely the case in the McGahn litigation.

Those situations can lead to awkwardness and disputes. Consider the example of  the Democratic-led Senate Intelligence Committee’s investigation into the Bush administration’s rendition, detention, and interrogation practices that extended well into the Obama administration (including during my time in the White House Counsel’s Office). The movie “The Report” dramatizes this investigation and features the simmering tensions (or worse) between Obama officials and Sen. Dianne Feinstein’s staff. On the flip side, some Bush-era officials involved in that program expressed disapproval of the amount of material that was provided to the Senate.

Similarly, after some court rulings adverse to the Obama litigation position in the congressional investigation into anti-gun trafficking investigations — collectively described as Operation Fast and Furious — the Trump administration settled the case and released DOJ records in dispute. And, in the last litigation dispute about congressional testimony of close presidential advisers — there, President George W. Bush’s White House Counsel Harriet Miers — the Obama administration settled the case rather than risk a ruling by the DC Circuit that could undermine presidential adviser immunity.

As noted, the current president’s discretion to release records, as he or she may choose to act absent legal compulsion, is traditionally weighed against long-term institutional interests of the executive branch as well as a degree of comity afforded the prior president. A current White House occupant’s fear of harm from having to live with adverse precedent, purer executive branch institutional concerns, and recognition of the prior president’s proximity to the documents or testimony at issue, all counsel for some level of comity to be afforded prior presidents, even if that doesn’t ultimately carry the day.

In the McGahn case, the vitality of the executive branch resistance to produce Trump-era records has been sapped of its partisan ardor. But institutional (self-)interests and pragmatic concerns for comity will likely continue to temper the Biden administration’s information release and testimonial posture.