Recalibrating the “Subpoena Cannon”

(I know some artillery expert from Quora is going to correct my title but you get the idea).

To continue the martial metaphors, the House’s investigatory offensive against the Trump administration is meeting stiff resistance on all fronts or, one might say, running into a stone wall. The administration is refusing to cooperate with any oversight or investigation it considers to be hostile or partisan (so, basically all of them). This noncooperation can take the form of refusing to comply with document requests or subpoenas outright, simply ignoring them, delaying a final response (as in the case of the Ways & Means committee request to the treasury secretary for the Trump tax returns), placing conditions on compliance (as where the White House is refusing to allow witnesses to testify at congressional depositions unless a representative from the counsel’s office is also allowed to attend), instructing or encouraging former executive officials or others not to comply with congressional demands (as the administration apparently plans to do with respect to the Judiciary committee subpoena to former White House counsel Don McGahn), and even bringing legal action to prevent third parties from providing information to Congress (as discussed in my last post).

The situation has given rise to much handwringing in Congress, where House Democrats are predictably characterizing the administration’s actions as “massive, unprecedented obstruction.” The frustration is entirely understandable, but I agree with Andy Wright that it is a bit overwrought to describe the situation as a “constitutional crisis,” particularly at this early stage. The basic problems are ones faced by Congress in every administration, even though the scope of the investigations and sheer number of information disputes is unusual. Moreover, while it may be accurate to describe the administration as engaged in unprecedented stonewalling, it should also be remembered that the Mueller report provides Congress with an exceptional degree of visibility into the areas of the administration about which it is most concerned.

It will come as no surprise to readers of this blog that the House faces a difficult set of challenges in responding to the administration’s recalcitrance because there is no clearly established mechanism for enforcing congressional subpoenas against the executive branch. If an executive branch official refuses to testify or produce documents based on the assertion of executive privilege at the direction of the president, the Justice Department has long maintained that it will not (and constitutionally may not) prosecute the official for contempt of Congress. See, e.g.,  Response to Congressional Requests for Information Regarding Decisions made Under the Independent Counsel Act, 10 OLC 68, 85 (Apr. 28, 1986). Thus, while a House committee may vote to hold this official in contempt and report the contempt to the full House, which in turn may adopt a resolution referring the matter to the U.S. attorney pursuant to 2 U.S.C. § 194, the U.S. attorney will not present the matter to a grand jury and thus the House’s action will be largely symbolic.

It should be noted, however, that this calculus is arguably somewhat different in the case of a former executive branch official. While it is clear that the executive branch would contend that a former official should obey the president’s instructions as to the assertion of executive privilege, and it is highly likely that it would employ similar reasoning to avoid presenting any contempt citation to a grand jury, there is at least some possibility that a future administration might reach a different conclusion, placing the former official in legal jeopardy. At the very least, the former official might worry that having a formal citation of contempt by the House on the record might generate legal expenses or other collateral consequences down the road.

With criminal contempt largely useless, then, the House is considering other options, including inherent contempt. Again, as readers well know, this is the process by which the House (or Senate) can send the Sergeant at Arms to take a recalcitrant witness into custody, bring him before the bar of the house to explain his refusal to testify, and remand him to custody until he changes his mind. Although members of Congress are starting to make noises about reviving this process (something that happens periodically whenever there is divided government), these threats are not very credible in light of the fact that the House has not used it in about a century.

To solve that problem, the estimable Mort Rosenberg has proposed a House rule that would use fines, rather than arrest and detention, as the primary means of forcing executive branch officials to comply with congressional subpoenas. Judiciary committee chairman Nadler has apparently raised this as a way “to put teeth in his party’s numerous investigative inquiries, many of which Trump officials are stonewalling or simply ignoring.”

Not surprisingly, the Justice Department has suggested that it would be unconstitutional to employ inherent contempt against executive branch officials in situations where (it claims) separation of powers principles prohibit the use of criminal contempt. See 10 OLC at 86. There are also obvious practical problems that would be involved with attempting to detain an executive official. See id. (“it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege”). The House’s “cannon” is, after all, only metaphorical, and the executive branch has the Sergeant at Arms and the Capitol Police pretty well out-gunned. Imposing fines instead of imprisonment might mitigate, or at least postpone, this problem, but if the House wanted to have this option available it should have included it in the rules package that was adopted at the beginning of the congress.

Another suggestion is that the House could use political remedies, such as the appropriations process, to punish officials or agencies that refuse to comply with congressional demands for information. Professor Josh Chafetz is a big proponent of this technique. It seems to me that this can be effective when the resistance to congressional demands is coming from the agency level, but it is much harder to do when it is coming from the president (and harder still with this president). To the extent the House has leverage in the appropriations process vis a vis the Senate and the president, it is likely to use it for higher priority items than winning disputes over information access. Put another way, I don’t see the House shutting down the government to get an unredacted copy of the Mueller report.

This leaves what is most commonly thought of as the House’s best legal remedy, a civil action seeking declaratory or injunctive relief to enforce its right to obtain information. Most commonly, this would take the form of an action to enforce a subpoena, but other actions are also possible. For example, the Ways & Means committee could bring suit to enforce its statutory rights to obtain tax return information under 26 U.S.C. § 6103(f). Note that such an action would be analogous to an action to enforce congressional rights to information under 5 U.S.C. § 2954 (commonly known as the Rule of Seven), which is at issue in the case of Cummings v. Murphy currently pending in the D.C. Circuit (though likely presenting a stronger case for congressional standing than Cummings if the committee’s action were authorized by House resolution).

Civil enforcement of subpoenas presents its own set of challenges, namely (1) the absence of any clearly defined process for bringing such actions and unsettled legal issues of justiciability; (2) the fact that courts do not like to be in the middle of political disputes between the legislative and executive branches; and (3) the length of time that it would take to obtain a final enforceable court order, particularly because even if the House prevails at the district court level there will be inevitable appeals to the D.C. Circuit and the Supreme Court. Some of these problems could have been mitigated had the House adopted a brilliant proposed rule (still my blog) on civil enforcement of subpoenas, but alas it failed to do so. Nevertheless, civil enforcement remains the most promising avenue for legal vindication of the House’s constitutional rights.

Analysis

So where does that leave us? The House has a number of potential tools for vindicating its interests in obtaining information, but none of them are guaranteed to work. The question of which tool, if any, to employ should be made on a case by case basis. It would be, in my view, extremely unwise for the House to bring many civil enforcement actions at once. Not only would this tax its resources, but the weaker cases risk establishing bad precedent. In addition, the courts are likely to be less receptive to any case if they believe this will become a routine method of settling information disputes between the political branches.

This means that the House needs to radically pare down the number of disputes that it would consider submitting to judicial resolution. I would eliminate, for example, any dispute relating to President Trump’s business dealings prior to assuming office. If the House is going to consider impeachment proceedings against the president, it will (and should) be for his conduct as president, not for being an unethical or corrupt private businessman. Moreover, thanks to Trump’s litigiousness, the House already has the opportunity to vindicate its legislative interests in the Mazars lawsuit he and his companies initiated. A favorable ruling in that case will ultimately benefit the House’s efforts to get information from other sources, but there is little or nothing to be gained by initiating other litigation in this area.

The House has stronger legislative interests in matters relating to the president’s current financial holdings and whether they create actual or potential conflicts with respect to his official duties (as well as the related question of whether they violate the emoluments clauses). As it happens, there is also existing litigation in this area (the aforementioned Cummings v. Murphy), although the chances that the House members will ultimately prevail in that case are lower. If there were a stronger rationale behind the request for Trump’s tax returns, it might make sense to proceed with a civil action (as already noted, not necessarily a subpoena enforcement action) on that issue. As it is, though, I would put this dispute on a longer fuse if it is to be brought to court at all.

There are other matters that fall under the category of more ordinary oversight disputes. Some of these may be deemed of greater importance or urgency than others (the question of favoritism or nepotism in the security clearance process comes to mind). It could be that some present particularly strong cases that the House might want to consider bringing to court. In general, however, it would be wise to attempt to exhaust the normal accommodation process before initiating litigation. For example, it would seem that the administration’s demand that a lawyer from the White House counsel’s office attend certain depositions is the kind of thing the House should try in good faith to resolve short of litigation if at all possible.

This brings us to the matters covered by or related to the Mueller investigation, which go to the very heart of concerns about the president’s conduct and fitness for office. One matter in dispute, of course, is access to the full unredacted Mueller report. This is a legitimate and important demand, but it is also one with regard to which the administration has a reasonable and legally sound position. Initial redactions from the report were fairly modest, and the attorney general has offered selected members of Congress access to the full report, apart from grand jury material, an offer that congressional Democrats have refused. It is hard to see how one could justify bringing a subpoena enforcement action without first accepting this offer. Moreover, if the House were to decide to initiate litigation, it would probably make more sense to bring an application for access to grand jury material under Rule 6(e)’s “judicial proceeding” exception rather than file a full subpoena enforcement action.

Other significant follow ups from the Mueller investigation include key witnesses who can confirm and elaborate on testimony provided to the special counsel. Some of these witnesses are private citizens. Some, like Corey Lewandowski, are private citizens and were private citizens even at the time to which their testimony relates. Lewandowski is a witness to one of the key episodes regarding potential obstruction of justice described in the report. To wit, after unsuccessfully attempting to have White House counsel McGahn fire the special counsel, President Trump allegedly asked Lewandowski, then a lobbyist, to deliver a message to Attorney General Sessions in order to curtail the special counsel’s probe.

It is difficult to see how any legitimate objection could be raised by the administration to Lewandowski’s testifying before Congress. Even if the president instructed Lewandowski not to testify, such an order would be so legally baseless that it would be foolish for Lewandowski to rely on it. If the House were to move forward with a criminal contempt citation, he would be running a huge risk of ultimately facing prosecution, if not in the current administration then in the next. (In the unlikely event that the House is willing to revive the inherent contempt procedure, someone like Lewandowski would make an attractive test case).

This brings up an important point about criminal versus civil enforcement. The longer the House waits to initiate civil enforcement, the weaker its position because it becomes increasingly likely that the matter cannot be resolved within the current congress. With criminal contempt, the converse is true. The closer it is to the 2020 presidential election, the more legal jeopardy a witness faces if the House refers him to the U.S. attorney for prosecution.

The degree of risk varies widely, however. An executive branch official who refuses to produce official documents based on the president’s formal directive to assert executive privilege, for example, faces little practical risk. A former executive branch official who is subpoenaed to provide testimony faces somewhat more risk, as already mentioned, but as long as the president formally invokes privilege and there is a facially plausible basis for doing, the risk is relatively contained. Any witness who wants to protect himself should insist that the president formally invoke the privilege before the committee votes to report his contempt to the House or, at the very latest, before the House votes to refer the matter to the U.S. attorney. If there is no plausible executive privilege claim (as in the case of private citizens like Lewandowski) or if it is very weak, witnesses face significant risk even if the president formally invokes the privilege.

Finally, with respect to potential civil actions, the House (in my judgment) should select its strongest case (or at most its two or three strongest) to present to the courts as soon as possible. If the case is resolved quickly and favorably (at least at the district court level), it may have a deterrent effect on the administration or witnesses allied with the administration. If the House is careful about bringing cases only where absolutely necessary (rather than to score a public relations victory), it will have a greater opportunity for success in the courtroom.

Fortunately, there is one case that stands out as significantly stronger than any other. Former White House counsel McGahn is perhaps the most important witness interviewed by the special counsel. McGahn told the special counsel’s office that the president told him to have Mueller fired and then directed him to lie about it. McGahn not only has a great deal of factual information relevant to the matters of interest to the House Judiciary committee (which has subpoenaed him), but he was the person most responsible for explaining to the president the need to comply with his constitutional oath and duties.

Ordinarily communications between the president and his White House counsel would be difficult for Congress to obtain. This case, however, is far from ordinary. For one thing, McGahn has already testified in the special counsel investigation. The administration may argue that this testimony did not waive executive privilege with respect to Congress, but this argument seems particularly weak when one considers that the president did not assert executive privilege over that part (or any part) of the Mueller report, and Attorney General Barr did not redact that information before the report was submitted to Congress.

Furthermore, any attempt by the president to assert executive privilege here would violate the principle that executive privilege “should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers.” Congressional Subpoenas of Department of Justice Investigative Files, 8 OLC 252, 267 (Oct. 17, 1984); see also United States v. Nixon, 418 U.S. 683, 712-13 (1974). McGahn’s testimony, which the president apparently denies, is clearly evidence of wrongdoing, even if the special counsel and/or the attorney general concluded that it was insufficient to warrant bringing an obstruction of justice charge at the present time.

Not only do these factors bolster the House’s legal position regarding McGahn’s testimony, but there are practical considerations that will help it as well. According to reports, McGahn presents himself not as an unwilling witness but as a mere stakeholder between the executive and legislative branches:

“He’s not eager to testify. He’s not reluctant. He got a subpoena. It compels him to testify. But there are some countervailing legal reasons that might prevent that,” said one person close to McGahn, who described private discussions on the condition of anonymity. “He doesn’t want to be in contempt of Congress; nor does he want to be in contempt of his ethical obligations and legal obligations as a former White House official.”

In this situation it is particularly difficult to convince a court that the proper procedure is for the hapless witness to be subjected to criminal or inherent contempt as the only means of determining what his legal obligations are. As Judge Bates noted in a very similar case involving a congressional subpoena to a former White House counsel, “[e]xercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would provoke an unseemly constitutional confrontation that should be avoided.”

Furthermore, the fact that Trump, in his private capacity, is suing his accounting firm to prevent it from complying with a congressional subpoena is going to make it hard to argue that the court should not be able to decide a similar suit against McGahn. McGahn is in exactly the same position as Mazars, except that Trump is seeking a declaration that Mazars need not (or should not) comply, while the House would be seeking a declaration that McGahn must comply. It will be tricky for the Justice Department to distinguish these two situations.

With McGahn asserting no personal interest or position in the case, it is likely to go expeditiously. Moreover, if the district court rules in the House’s favor, McGahn may well be satisfied that the court’s decision is sufficient to allow him to testify consistent with his ethical and legal obligations, rather than insisting on waiting until appeals are exhausted. A quick decision will also give momentum to the House’s efforts to get other similarly situated witnesses to testify.

An additional wrinkle in the McGahn case is that the House would not even have to style it as an action to “enforce” the subpoena, but instead simply as a declaratory judgment action seeking a declaration that McGahn is obligated to appear and testify on the matters discussed in the Mueller report. This arguably could be accomplished without a House resolution (assuming that BLAG has the authority to initiate litigation of this type without specific approval), although getting such a resolution would be safer. The House could also offer as an “accommodation” that McGahn could testify first in a deposition where an executive branch lawyer would have the opportunity to assert executive privilege to any questions that went beyond the scope of what McGahn already testified to in the Mueller report. (Such a procedure might be favored by those who believe, wrongly IMHO, that McGahn would be a dangerous witness in an open hearing).

To tee up an action of this sort, the House Judiciary committee should ask the president whether he intends to formally invoke executive privilege and request that he do so within a specific time period.

Conclusion

The House has a number of arrows in its quiver (last metaphor, I promise), but it will need to use them carefully and with discernment to effectively vindicate its constitutional authorities and duties in the current situation.