Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 1 of 120 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff, v. DONALD F. MCGAHN II, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. No. 19-cv-2379 (KBJ) TABLE OF CONTENTS I. INTRODUCTION..............................................................................................1 II. BACKGROUND................................................................................................7 III. IV. A. Factual Background.................................................................................7 B. Committee on Judiciary, U.S. House of Representatives v. Miers ...........15 C. Procedural History ................................................................................20 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 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 Case 1:19-cv-02379-KBJ Document 46 2. B. C. V. Filed 11/25/19 Page 2 of 120 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 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 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 CONCLUSION .............................................................................................. 116 ii Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 3 of 120 MEMORANDUM OPINION I. INTRODUCTION In 2008, in the context of a of the House of Representatives dispute over whether the Committee on the Judiciary (“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 investigation, the “extraordinary that produce documents in connection with of Justice Department constitutional Representatives argued and (“DOJ”) significance.” a congressional made three Comm. legal contentions of on Judiciary, U.S. House of v. Miers, 558 F. Supp. 2d 53, 55 (D.D.C. 2008) (Bates, J.). First, DOJ 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 testimonial a subpoena that immunity. cannot exercise between the Congress issues, on the basis of alleged absolute See id. at 100. And, third, DOJ asserted that the federal courts over any such subpoena-related stalemate and the Executive branch, on separation of powers grounds. subject-matter jurisdiction Legislature 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 over such disputes, see id. at subject-matter jurisdiction the federal courts have 64–65; why the Judiciary sue and a cause of action to proceed in federal court, see id. the claim that a President’s senior-level aides have absolute Committee had standing to at 65–94; and why testimonial opinion immunity also is meritless, persuasively see id. at 99–107. Most importantly, the Miers demonstrated that DOJ’s conception of the limited power of Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 4 of 120 both Congress and the federal courts relative to the expansive President—which, purportedly, includes the power being questioned grounded about any aspect of their present authority of the to shield himself and his aides from or former White House work—is not 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 fact concerning potential obstruction of justice by the Special Counsel’s findings of 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 negotiations ensued, (“Purpura Decl.”), ECF No. 32-3, at 46–47.)1 Months of 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 without ordering legal justification” (Compl., was ECF No. 1, at 53), and it also seeks an “injunction McGahn to appear and testify forthwith before the Committee” (id.). Page number citations to the documents that the parties have filed refer to those that the Court’s electronic case filing system automatically assigns. 1 2 Case 1:19-cv-02379-KBJ Document 46 The Committee and DOJ (which is representing McGahn in the instant Judiciary have legal action) Filed 11/25/19 Page 5 of 120 now filed the cross-motions for summary this Court at present. (See judgment, which are before Pl.’s Mot. for Prelim. Inj. or, in the alternative, for Partial Summ. J. (“Pl.’s Mot.”), ECF No. 22; Def.’s Mot. for Summ. J. Expedited (“Def.’s Mot.”), ECF No. 32.) In its motion, the Judiciary Committee reiterates the basic contention that, Congress exercising having received a subpoena from a duly authorized committee of 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). to the In response, DOJ renews its (previously and right of the standing senior-level presidential courts have the authority enforcement claims branch officials. to exercise threshold objections Committee to seek to enforce its subpoenas to aides in federal court, and it also brought by (See Judiciary unsuccessful) robustly subject-matter jurisdiction denies that federal over subpoena- House committees with respect to such Executive Def.’s Mot. at 32–33, 43, 53); 65–94. DOJ further insists that the Judiciary see also Miers, 558 F. Supp. 2d at 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 before as McGahn, are Congress For the in Miers, the absolutely immune from being compelled if the President orders them not to do so. reasons explained in this Memorandum Judiciary (See Opinion, to testify Def.’s Mot. at 60–74.) as well as those laid out Committee’s motion for partial summary judgment is GRANTED, and DOJ’s cross-motion for summary judgment is 3 DENIED. In short, this Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 6 of 120 Court agrees with Judge Bates’s conclusion that federal courts have subject-matter to resolve jurisdiction Executive branch legal disputes the scope of each branch’s concerning duties, under section that arise between the Legislature and the and subpoena-related rights 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 to say what the law is. Judiciary (1803). It also plainly Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 advances constitutional separation-of-powers principles, than subverts them, when a federal court decides the subpoena that a duly question of whether a rather legislative 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 Miers to the President’s invocation of absolute testimonial was correct to conclude of Representatives to conduct witnesses to testify that, given the indisputable Article investigations at hearings has both standing and a concerning to respond to a of potential abuses of power and subpoena such investigations, the Judiciary Committee or former presidential aides’ performance of his legislative subpoena. DOJ’s arguments to the contrary ‘autonomy[,]’” and, therefore, “rest[] privilege.” I power of the House cause of action to file an enforcement lawsuit in federal court if the Executive branch blocks a current duty immunity. Furthermore, See id. at 65–75, 78–94. are rooted in “the Executive’s interest in upon a discredited notion of executive power and Id. at 103. Indeed, when DOJ insists that Presidents their senior-level aides from neither the federal courts responding to compelled can lawfully prevent congressional process and that nor Congress has the power to do anything about it, DOJ 4 Case 1:19-cv-02379-KBJ Document 46 promotes a conception of separation-of-powers commands exactly backwards. In reality, it is a that the powers of a monarch must be split Filed 11/25/19 Page 7 of 120 principles that gets these constitutional core tenet of this Nation’s founding between the branches of the government to see also Buckley v. prevent tyranny. See The Federalist No. 51 (James Madison); Valeo, the 424 U.S. 1, 120 (1976). Thus, when Judiciary’s duty government under the Constitution to overreaches unlawful. constitutionally presented vested Similarly, responsibility interpret with a case or controversy, it is the law and to declare the House of to conduct Representatives investigations has the 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 separation-of-powers grounds—essentially, on that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained. During summary the hearing judgment, that this Court held regarding the parties’ the Court asked DOJ’s counsel whether its absolute assertion with respect to McGahn that the Miers case immunity or whether it was DOJ’s was simply wrong to conclude that absolute testimonial is not an available with respect to senior-level immunity was somehow different than the absolute immunity that former White House Counsel Harriet Miers had claimed, position cross-motions for legal basis for presidential thwarting compelled congressional aides. Counsel answered “both.” process (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 5 same facts and Case 1:19-cv-02379-KBJ Document 46 these the same legal arguments before, Filed 11/25/19 Page 8 of 120 and DOJ has done little to case should turn out differently in the end. this Court that persuade Instead, this Court concurs with the thrust of Miers’s conclusion that, whatever the scope of the President’s executive with respect to the information that privilege the merits of DOJ’s assertion that senior-level aides the purpose of between invoking compel, and whatever are the President’s “alter egos” for an immunity, DOJ has failed to bridge the yawning gap a presidential aide’s right to withhold his or her seeks to Congress privileged compelled congressional testimony (which information in the context of no one disputes), and the President’s purported power to direct such aides to refuse to show up and be at all (which appears legal precedents the Supreme only and are in a string of OLC manifestly opinions questioned that do not themselves constitute inconsistent with the constitutional jurisprudence of Court and the D.C. Circuit in many respects). case is solely whether senior- Thus—to be crystal clear—what is at issue in this level presidential aides, such as McGahn, are legally required to respond to a subpoena a committee of Congress has issued, by appearing before the committee for testimony despite any presidential directive prohibiting such a response. The Court that distinguishes this issue from the very different question of whether the aides may be asked to specific in the context of information that high-level presidential such can be withheld from the committee on the basis of a valid questioning In other words, “the Court to absolute immunity only resolves, from compelled aides.” Miers, 558 F. Supp. 2d at 56; executive privilege that [a subpoenaed and again congressional rejects, provide the claim the Executive process for senior presidential see also id. (noting that “[t]he presidential aide] 6 by privilege. may assert specific claims of are not addressed— Case 1:19-cv-02379-KBJ Document 46 no view on such and the Court expresses Filed 11/25/19 Page 9 of 120 claims”). And in reaching this conclusion, Court holds only that [McGahn] (and other senior presidential advisors) do not “[t]he have absolute from compelled immunity particular subpoena dispute.” congressional Id. at 105–06. process in the context of this as with Harriet Miers Accordingly, just before him, Donald McGahn “must appear before the Committee to provide testimony, and invoke executive II. privilege where appropriate.” Id. at 106. BACKGROUND A. Factual Background The material facts that underlie this lawsuit 2019, the Judiciary Committee opened Trump are not in dispute. On March 4, an investigation into allegations that President and his associates had engaged in various forms of misconduct up to the 2016 presidential election and in the years since. Facts Not in Dispute H. Comm. on the Threats Against (“Pl.’s Judiciary, (See the Rule of Law Judiciary the lead Pl.’s Stmt. of Material Stmt. of Facts”), ECF No. 22-4, ¶ 75 House during (citing Press Release, Committee Unveils Investigation Into (Mar. 4, 2019)); see also H.R. Rep. No. 116-105, at 13 an investigation into “possible malfeasance, abuse of power, obstruction of justice, or other misconduct on the part of the President or (2019) (announcing corruption, other members of his Administration”).)2 In its complaint, the alleges that 2 This that Special regarding alleged Counsel Robert S. Mueller III conducted between 2017 and Russian interference in the 2016 investigation pre-dates on September Committee one of the driving forces behind its investigation is the separate investigation 2019 Judiciary the formal impeachment inquiry presidential election, that the Speaker the of the House announced 24, 2019. See Press Release, Speaker Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://www.speaker.gov/newsroom/92419-0. 7 Case 1:19-cv-02379-KBJ Document 46 are memorialized in a 448-page results of which Office issued on March 22, 2019. Mueller III, Report On The Presidential Election Judiciary may warrant which report that the Special Counsel’s ECF No. 1, ¶¶ 1–3 (citing Robert S. (See Compl., Into Russian Interference In The 2016 Investigation (March 2019) (“Mueller Report”).) include allegedly amending things, relating determining In the complaint, the “whether the conduct uncovered or creating new federal authorities, including among other to election security, campaign finance, the types of obstructive conduct that the Mueller of the conduct described in the any further steps under Special misuse of electronic data, and Report describes”; Administration official.” Congress’ marks The elsewhere, (Compl. ¶ and “whether any Counsel’s Report warrants the Committee in Article I powers . . . includ[ing] whether to approve articles of impeachment with respect to the President quotation Page 10 of 120 Committee invokes the Mueller Report when describing the purposes of its investigation, taking Filed 11/25/19 or any other 61 (quoting H.R. Rep. No. 116-105, at 13 (internal omitted)).) Special Counsel’s investigation and findings have been summarized 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 dates indicates that the interviews with McGahn took (see Compl. ¶ 94)—and investigators it is also noteworthy place on at least five different that McGahn’s statements to those are specifically mentioned in the Mueller Report multiple times and in 8 Case 1:19-cv-02379-KBJ Document 46 connection with various topics, including Michael Flynn (see 35); 65–69); the decision from overseeing the id. ¶ resignation Page 11of 120 of National the termination of FBI Director James Security Advisor Comey (see General Jefferson B. Sessions III to by Attorney Special the Filed 11/25/19 id. at recuse himself Counsel’s investigation (see id. ¶ 36); and President Trump’s alleged attempts to remove the release of the Mueller Report, Counsel Mueller (see id. ¶ 35). Following Special 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 asking that he voluntarily provide an attachment to his letter. (See the Committee with certain documents delineated in Letter from Jerrold Nadler, Chairman H. Comm. (“Tatelman Decl.”), ECF No. 22-3.) the scope of because those entities “are the access to these documents, attorney-client and/or attorney work from disclosure.” on the Judiciary on the private on March 18, 2019, that Burck had forwarded the document request to the White House and to Trump Campaign, Comm. In response to this request, McGahn’s William Burck, sent a letter to Chairman Nadler indicating the sent a letter to McGahn to Donald F. McGahn II (Mar. 4, 2019), Ex. R to Decl. of Todd B. Tatelman Judiciary, attorney, Judiciary Committee, (Letter including appropriate whether product privilege authorities to decide a claim of executive, would protect such information from William A. Burck to Jerrold Nadler, Chairman H. Judiciary (Mar. 18, 2019), Ex. S to Compl., ECF No. 1-19.) When the Committee had not received a response to its voluntary document request of April 22, 2019, it issued a subpoena ad testificandum to McGahn 9 (see Subpoena as to Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 12 of 120 Donald F. McGahn II (“Subpoena”), Ex. U to Tatelman Decl., ECF No. 22-3 at 497– to a resolution that the Committee had adopted on April 3, 2019, 508), pursuant 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 termination of James topics, including Comey, Counsel’s investigation, by Jeff Sessions’s recusal decision, and the 2019 testify before the President, Mick Mulvaney. (See Letter from Pat to William A. Burck The letter explained (May 7, 2019), that McGahn records “remain legally protected because and executive Acting Chief of Staff to the Purpura Decl., they implicate significant on the grounds same Executive Branch points that the about the requested constitutional longstanding privilege.” (Id.) Cipollone contemporaneously documents, and informing ECF No. 32-3, at was “not to produce White House records in from disclosure under Chairman Nadler a letter making the a letter to Burck in A. Cipollone, Counsel to the Ex. C to response to the Committee’s April 22 subpoena” principles, on (id. at 497). which he relayed instructions to McGahn from the 30.) the 497, 499–501), Committee Judiciary On May 7, 2019, White House Counsel Pat Cipollone sent President, Flynn, Special no later than May 7, 2019 (see Subpoena at and it also called for McGahn to appear to May 21, the FBI’s investigation of Michael confidentiality sent Judiciary protected interests Committee nature of the 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 ECF No. 32-3, at 31.) Cipollone’s Judiciary (May 7, 2019), Ex. C to Purpura Decl., letter to Nadler indicated that the White House 10 Case 1:19-cv-02379-KBJ Document 46 Counsel’s Office would be making the decision to the Committee’s respond subpoena. (See Filed 11/25/19 Page 13 of 120 as to whether or not McGahn would id. (asserting that the White House Counsel’s Office “will respond to the Committee concerning its interest in the records”).) On that same emphasized that, day, Chairman Nadler sent absent a court order a letter to Burck in which he directing otherwise, McGahn must appear before on May 21, 2019, or the Committee would hold him in (See Letter from Jerrold Nadler, Chairman H. Comm. on the Judiciary, to the Committee and testify contempt. 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, because the Committee intended “to focus Special given Counsel’s Report that President that he appear, and explaining on the very topics covered in the . . . there can be no valid assertion of executive Trump declined to assert any privilege privilege over Mr. McGahn’s 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 testimony, to Compl., ECF No. 1-23, at 2 (internal quotation marks and citation closed this letter by stating that “even if the President . . . invokes executive over your testimony, and you decide to abide by that improper required under the law and the provide testimony, (quoting Miers, penalty Nadler omitted).) assertion, you privilege are still of contempt to ‘appear before the Committee to and invoke executive privilege 558 F. Supp. 2d at 106).) 11 where appropriate.’” (Id. at 2 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 On May 20, 2019, the day before McGahn was to testify before the Committee, Cipollone sent a letter to Burck not to appear at the scheduled stating hearing. (See the President, to William A. Burck 32-3, at 46–47.) Legal Counsel which opines that, is protected by compel [him] testify (May 20, 2019), was instructing McGahn Ex. E to ECF No. Purpura Decl., a memorandum from the Office of as a former “senior advisor” to the President, McGahn immunity” and that “Congress about [his] official duties.” letter to Chairman Nadler Trump Letter from Pat A. Cipollone, Counsel to attached to his letter Cipollone “testimonial to that President Page 14 of 120 (Id. at may not constitutionally 48.)3 Cipollone him of the instructions that had been informing also sent provided a to McGahn. (See Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman H. Berke H. Comm. on the (“Berke Decl.”), to Chairman Nadler Judiciary (May 20, 2019), informing branches of Chairman H. Comm. No. 22-3, at “persuasive” [McGahn], 510.) him of this development was “facing government.” (Letter same day, Burck sent a letter and stating that, as a result of on the contradictory Judiciary (May 20, 2019), Burck further explained instructions from two from William A. Burck to Jerrold Nadler, Ex. X to Tatelman Decl., ECF that he found the OLC’s opinion and that, “[u]nder these circumstances, and also conscious of the duties as an attorney, owes to his former appear at the Barry ECF No. 22-2, at 21–22.) That the President’s instructions, McGahn co-equal Ex. 2 to Decl. of hearing tomorrow.” (Id.) client, Mr. McGahn must decline to Burck concluded his letter by stating that McGahn “remains obligated to maintain the status quo and respect the President’s This memorandum would later be published as an OLC slip opinion. See Testimonial Immunity Before Cong. of the Former Counsel to the President, 43 Op. O.L.C. ___, Slip. Op. (May 20, 2019) (“McGahn OLC Mem.”). 3 12 Case 1:19-cv-02379-KBJ Document 46 instruction[,]” Filed 11/25/19 but that if the Committee and Executive accommodation, McGahn “would of course comply Page 15 of 120 were to reach an with that accommodation.” (Id. at 511.) Nadler responded immediately he described President Trump’s and insufficient “to excuse your to McGahn, via his counsel, with a letter in which command to McGahn not to appear obligation from Jerrold Nadler, Chairman H. Comm. (May 20, 2019), as “unprecedented” to appear before the Committee.” on the Judiciary, (Letter to Donald F. McGahn II 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 was “‘not excused from compliance with the by virtue of a claim of executive privilege that may ultimately Committee’s position that McGahn Committee’s subpoena be made’” expected (id. at 558 F. Supp. 2d at 106)). Rather, the Committee as Judge Bates had ordered former White House Counsel Harriet Miers to (See id.) Ultimately, immunity, 93), (quoting Miers, McGahn to appear at the hearing and invoke executive privilege where appropriate, do. 546 as a result of the White House’s invocation of absolute testimonial McGahn did not appear to testify on May 21 (see Pl.’s Stmt. of Facts ¶¶ 91, 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 on the basis of privilege, and belated production of nonprivileged documents. (See Letter from Jerrold Nadler, Chairman H. Comm. on the documents being withheld 13 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 16 of 120 to Donald F. McGahn II and Pat A. Cipollone, Counsel to the President Judiciary, 31, 2019), Ex. Z to Tatelman discuss any reasonable Decl., ECF No. 22-3, accommodation(s) at 536.) Nadler also offered “to that would facilitate Mr. McGahn’s appearance before the Committee,” and he proposed a number of options to the Special limiting the testimony identifying with greater specific specificity events detailed in the the precise to the presence of White House counsel consult regarding (May Counsel’s report, areas of intended inquiry, and agreeing during the assertion of executive “including any testimony, so that Mr. McGahn may 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 limit the scope of any testimony from McGahn. regarding potential and there (See accommodations took place was an in-person meeting on June id. ¶¶ 9–11.) During a subsequent (See Berke Decl. ¶ 8.) Follow-up calls on June 18, 2019, and on June 21, 2019, 25, 2019, but no resolution was reached. call on July 1, 2019, the White House indicated that it “was not willing to accept any accommodation testimony.” (Id. ¶ 12.) However, once again offered to involving Mr. McGahn’s the White House did offer “to consider public allowing Mr. McGahn to appear for a private interview rather than for public testimony, subject to appropriate conditions that the In response, the anything Judiciary other than parties would have to negotiate.” (Purpura Decl. ¶ 18.) Committee indicated that it “was not willing to consider 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 14 to the Mueller Report and Case 1:19-cv-02379-KBJ Document 46 allowing Filed 11/25/19 Page 17 of 120 White House counsel to sit behind McGahn during his testimony, and it also offered to negotiate any issues that arose The White House rejected this proposal during during his testimony. (See Berke Decl. ¶ a subsequent call that took place 13.) 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 Although (id. ¶ 15–16). the White House and the Committee were not able to resolve their differences with respect to McGahn’s testimony, they did reach an agreement his production of the agreement, subpoenaed documents. (See Purpura Decl. ¶ 21.) regarding Under this 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 Committee on Judiciary, U.S. House of Representatives v. Miers B. One who doubts that history repeats itself need look back no further than an investigation resignation that the Judiciary Committee conducted in 2007, with respect to the forced 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 subpoena required George W. Bush. The Judiciary Committee’s that Miers produce documents and appear before the Committee to give testimony regarding any influence that the White House may have exerted over The White House also initially asserted testimonial immunity with respect to former aide Hope Hicks, Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman H. Comm. on the Judiciary (June 18, 2019), Ex. CC to Compl., ECF No. 1-29), but Hicks ultimately appeared for a voluntary interview, during which White House and OLC objected to her answering numerous questions on the basis of “absolute immunity” (see, e.g., Transcribed Interview of Hope Hicks, H. Comm. on the Judiciary, 116th Cong. (June 19, 2019), Ex. EE to Compl., ECF No. at 12, 15–16). 4 (see 15 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 18 of 120 DOJ’s decision to request the resignations of various United States Attorneys, some of whom were in the process of investigating prominent requests from Republican officials Supp. 2d politicians or had rebuffed to undertake certain investigations. at 57–63. In response to the Judiciary Miers, 558 F. 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 forthcoming. no documents would be 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 declaration that, among other things, “Miers must comply a court order and a 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. The Committee also issued a subpoena seeking the production of documents to then-current White House Chief of Staff Joshua Bolten. Miers, 558 F. Supp. 2d at 61. 5 16 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 19 of 120 at 56. For its part, the Judiciary Committee filed a cross-motion for that judgment argued that Miers had no legal right to refuse to appear and that there no legal basis for the assertion of absolute testimonial Judge that Bates resolved the ultimately jurisdiction parties’ was See id. at 99. immunity. contentions in a detailed, 93-page slip opinion denied the Executive branch’s motion and granted the Committee’s motion, thereby requiring Miers opinion, Judge summary partial to appear and testify. Id. at 108. At the outset of his Bates addressed the question of federal question subject-matter 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 that to enforce its duly issued subpoena general subpoena enforcement disputes through a civil suit.” Id. at 68. are common in federal Noting courts, Judge Bates further concluded that “this sort of dispute is traditionally amenable to judicial resolution and consequently entertained political subpoena justiciable[,]” enforcement actions branches have clashed id. at 68, 71, and that “courts have (or motions to quash over congressional subpoenas) subpoenas[,]” where the 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, Turning of action, Judge cannot file suit to address an institutional next to the Executive branch’s contentions Bates found that, through the regarding harm”). the lack of Declaratory Judgment Act, the a cause Judiciary Committee could enforce the House’s constitutional “‘power of inquiry[,]’” and that the 17 Case 1:19-cv-02379-KBJ Document 46 associated appropriate auxiliary to the function.’” Id. at 75 legislative 273 U.S. 135, 174 (1927)). Committee had a limited “implied concerning Page 20 of 120 to enforce’” that constitutional interest was “‘an essential and “‘process Daugherty, Filed 11/25/19 Judge (quoting Bates also concluded that the cause of action . . . to seek a declaratory the exercise of its subpoena power[,]” v. McGrain Judiciary judgment 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 Judge Bates rejected parties’ dispute “the contention that based judicial request of Congress would be unprecedented also found that, because the executive Judiciary privilege, declining on separation-of-powers concerns, in the nation’s history[,]” to consider the case would be more harmful to the deciding the case, Bates further dismissed the Executive branch’s argument that open the floodgates of id. at 95–96, and is the ultimate arbiter when it comes to claims of balance of powers between the three Branches than Judge arena at the intervention in this litigation, noting that the possibility for such see id. at 96. a ruling would 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 “[t]he Executive cannot identify a single judicial immunity for senior presidential advisors in this explained that the (1982)—in Supreme which the Court opinion immunity by noting that recognizes that absolute or any other context.” Id. Judge Bates Court’s decision in Harlow v. Fitzgerald, 457 U.S. 800 absolute for Executive aides in the rejected 18 immunity Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 context of civil lawsuits seeking monetary damages, except Page 21of 120 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 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– therefore, 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. Judge Bates went on to consider and reject a claim of qualified is not made in the instant case. Miers, 558 F. Supp. 2d at 105. 6 19 immunity for Miers, an argument that Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 22 of 120 Procedural History C. Despite Miers, the Judiciary at a subpoena-related impasse once Committee and the White House found themselves 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[.]” as in Miers, the Committee in the instant case claims that (Compl. at 52.) “[t]here is no lawful Just 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 before the Judiciary appear 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. ¶ testimony 113). The Committee also alleges that, with respect to McGahn’s in particular, “[t]he President has waived executive privilege as to the subpoenaed testimony that Report.” (Id. ¶ 112.) specifically As a relates to matters and information discussed in the [Mueller] remedy for these alleged violation, the Judiciary Committee 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. 20 Case 1:19-cv-02379-KBJ Document 46 (Id. at Filed 11/25/19 Page 23 of 120 53.) On August 26, 2019, almost three weeks after it filed the complaint, the Committee filed Judiciary a motion that alternatively, expedited partial subsequently agreed summary summary requested a preliminary judgment. (See Pl.’s Mot.) to have the Court treat this motion as one judgment. (See Min. Order of Sept. 3, 2019.)7 The injunction The or, parties seeking expedited partial Judiciary Committee and a schedule for the briefing of legal issues related to whether this DOJ then negotiated Court has jurisdiction to declare that McGahn’s refusal to appear is unlawful and to him to appear before the Committee—i.e., the first two prongs of the compel 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”), validity Reply”), ECF No. 37; Reply in Supp. of Def.’s Mot. (“Def.’s ECF No. 40))—and the parties also briefed the merits of the question of the of DOJ’s claim of absolute testimonial immunity. Importantly, the issue of whether McGahn must answer any particular poses and/or whether executive compelled to give privilege applies with respect to questions Judge judgment, relief) the Judiciary to the answers McGahn about the Mueller the third prong of the Committee’s request for In its motion for summary that the question is not Judiciary Report currently over the claims raised in the complaint Pl.’s Mem. at 33).) The Judiciary by might be or otherwise (i.e., before this Court. Committee relies heavily Bates’s decision in Miers, and argues that this Court has jurisdiction Committee on subject-matter virtue of 28 U.S.C. § 1331. (See Committee also asserts that it has standing to bring As mentioned previously, although the Judiciary Committee has named McGahn individually as the sole defendant in this lawsuit, DOJ is representing McGahn in the context of the instant case, and its arguments are made on behalf of the Executive branch. 7 21 Case 1:19-cv-02379-KBJ Document 46 this lawsuit Act Judgment (see (see id. at id. at provide 35–36). between the two the Page 24 of 120 and that Article I of the Constitution and the it with the means to vindicate its right to enforce the The Judiciary political the caselaw Judiciary subpoena even though it arises from a conflict branches of the federal government. (Id. at 36–37.) to the merits of the contention that McGahn has absolute testimonial Judiciary Declaratory Committee further maintains that “[t]his case is and appropriate for this Court’s review” justiciable respect 33–35), Filed 11/25/19 With immunity, Committee argues that there is no support for such a claim anywhere in (see id. at 39–45), and that McGahn must instead appear before the 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, threshold matter, that this Court lacks subject-matter jurisdiction as a over the Judiciary Committee’s complaint, both because this type of inter-branch political dispute is not one that courts have (see id. at 32–33; separation in light of see also id. at 40 (arguing that “[s]uits of this kind threaten the years”), purposes and because the (id. at 36–37). Judiciary Committee lacks a cognizable injury for DOJ further maintains that neither 28 U.S.C. § 1331 nor any other statute vests this Court with statutory Judiciary separation-of-power principles of powers and its system of checks and balances that has served the Nation well for 230 standing traditionally adjudicated subject-matter jurisdiction Committee’s complaint (see id. at 43–46), and likewise, that cause of action exists that allows the Judiciary 22 Committee to over the no substantive sue in federal court to Case 1:19-cv-02379-KBJ Document 46 enforce its subpoena (see id. at 52–56).8 Filed 11/25/19 Regarding the Page 25 of 120 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. 66.) (See id. at 64– 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 DOJ’s brief also contends that this Court should exercise its equitable discretion to refrain from this dispute based on separation-of-powers concerns, and should instead allow the interbranch accommodation process to play out to its conclusion. (See Def.’s Mem. at 56–57). However, in response to a Notice that the Judiciary Committee filed on October 29, 2019, notifying the Court that the parties had reached an impasse (see ECF No. 41), DOJ expressly withdrew its accommodations argument (see Def.’s Resp. to Pl.’s Notice Regarding Status of Accommodation Process (“Def.’s Accommodation Resp.”, ECF No. 42, at 2). 8 adjudicating 23 Case 1:19-cv-02379-KBJ Document 46 case, the Rule 56 question is whether the is a genuine Page 26 of 120 has met its burden of moving party as to any material fact, or whether there issue of fact that will need to be resolved at trial. See, e.g., Hoyte v. demonstrating the absence of a genuine Filed 11/25/19 dispute 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 disputes of material fact and allowing certain claims to “proceed to judgment because there were genuine 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 Instead, it is understood and undisputed that the question of whether jury. or not the 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, Constitution empowers 2019 WL 4228362, at *8 (D.D.C. Sept. 4, 2019) (quotation marks and citation In such a circumstance, this Court is not concerned about the evidence facts; rather, it must review and resolve the conflict between the respective interpretations motions for summary judgment to the of the law. A court judgment decides the party who, based reviewing legal omitted). pertaining parties regarding to their a question of law on cross- issues presented and grants summary on the court’s conclusions, is entitled to judgment as a matter of law. B. Common Law Adherence To Precedent In addition to relies on a basic applying juridical case. “Under the norm that is applicable to the legal issues presented in this principles as the source of background Spiropoulos, the Federal Rules of Civil Procedure, this Court also of the American system, legal principles Just Not Who We Are: A common law jurisprudence serves for judicial interpretation.” Andrew C. Critique 24 of Common Law Constitutionalism, 54 Case 1:19-cv-02379-KBJ Document 46 Vill. L. Rev. 181, 183 (2009). In this regard, Filed 11/25/19 it is clear beyond Page 27 of 120 cavil that judges should same points come again in litigation[.]” 1 William Blackstone, Commentaries *69; see also Michigan v. Bay Mills Indian Cmty., “abide by former precedents, where the 134 S. Ct. 2024, 2036 the rule of (2014) (noting that following precedent law”). This “rule of adherence to judicial precedents of stare decisis[,]” which is Latin for “to stand Black’s Law doctrine is “a foundation stone of Dictionary (11th provides that, ed. 2019) “‘when a point finds its expression in the doctrine by things (quotation decided.” Stare Decisis, marks and citation omitted). or principle of law has been once This officially or settled by the ruling of a competent court in a case in which it is directly and necessarily involved,’” then that legal principle “‘will no longer be considered as open decided to examination or to a new ruling by the same tribunal, follow its adjudications, unless it be for urgent (quoting Cooley William M. Lile et al., Brief & Charles Lesley LLC, 135 S. Ct. 2401, “today’s reasons and in exceptional cases.’” Id. and the Use of Law Books 321 (Roger W. Ames eds., 3d ed. 1914)); see also Kimble 2409 (2015) (explaining that, v. Marvel Entm’t, under the doctrine of stare decisis, Court should stand by yesterday’s decisions”). The vertical form of stare decisis—as between known and generally applies Making or by those which are bound to higher and lower courts within the accepted, same jurisdiction—is well but stare decisis also exists in horizontal form, and to courts of equal rank that are within, or outside, the same jurisdiction. See Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78 a prior on-point is not binding, stare decisis doctrine does not compel a court to follow a prior Notre Dame L. Rev. 1075, 1085–86 precedent (2003). Notably, however, 25 where Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 28 of 120 decision that it believes erroneous; in that circumstance the later court should confront case and “correct the error.” Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring); see also Hart v. Massanari, 266 F.3d 1155, 1170 (9th the prior Cir. 2001) that it would be “bad form to (explaining ignore contrary authority by failing even to acknowledge its existence”). And while the stare decisis doctrine is “not an inexorable command,” it generally is the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance the on judicial decisions, and contributes judicial process.” Payne to the actual and perceived function that reflects the foundational principles that undergird constitutional system. This is because anew each time that same question performs a limiting the federal deciding a legal issue is presented, without any reference to what has been done before, nudges a court outside of its established domain of is[,]” Marbury, of v. Tennessee, 501 U.S. 808, 827–28 (1991). It is interesting to note that the doctrine of stare decisis government’s tripartite integrity 5 U.S. at 177, and into the realm of legislating see Gamble, 139 S. Ct. at 1983 (Thomas, J., concurring) “say[ing] what the law what the law should be, (asserting that “even common- as legislators, inserting their own preferences into the law as it Commentators have noted that such an unconstrained evolution in legal law judges did not act developed”). decision-making that judges can undermine faith in the judicial are improperly within a structured system own “private sentiments” rather than working in which similarly situated parties are treated similarly. 1 enforcing their William Blackstone, Commentaries *69. It improperly enhancing system by creating the impression might also result in the Judiciary its own powers to the detriment of the other branches. See 26 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 supra, at 1101 (explaining that “[o]ne theme to be found in [the Framers’] Murphy, remarks is that adherence to the courts—which is also C. precedent forestalls the accumulation of arbitrary power in a primary function of separation of powers”). Subpoena-Related Rights, Duties, Privileges, case, this Court draws from the well-established substantive to subpoenas both those that generally, involve the issuance of subpoenas information and also those that course of congressional investigations. provides As it turns out, a a helpful key to regarding Dictionary (11th the or provide as “a light at bar. subpoena dispute “subpoena” ed. 2019). sometimes known are typically provided to enforce them. Such on the reasons why this Court has rejected DOJ’s and that court orders In Latin, the term Origins pertain are creatures of law, that these instruments have particular realizations shed substantial authoritative standards that many of this Court’s legal conclusions. For example, it is important to legal significance, contentions legal in the context of standard civil cases that sense of such subpoena-related standards understand that produce apply subpoenas by parties seeking House committees issue in the understanding And Immunities in analyzing the arguments and issues that have been presented in this Finally, general Page 29 of 120 means “under Simply put, a subpoena penalty.” Subpoena, is a written mandate Black’s Law (also a legally enforceable procedural obligation to documents or testimony, and it does so through an appeal to some body’s writ”) that creates power to sanction noncompliance. See William Mark Ormrod, The of the Sub Pena Writ, 61 Hist. Research 11, 11, 16 (1988); Maitland, Equity, also, the Forms of Action see also Frederic W. at Common Law 5 (1909) (noting that the writ was so named “because it orders the man to appear upon pain of forfeiting a sum of money, e.g. subpoena centum librarum”); Oliver Wendell Holmes, Early English 27 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 30 of 120 Equity, 1 L. Quart. Rev. 162, 162 n.2 (1885) (noting that, at common law, the penalty for failing to comply with a subpoena “was usually money, but might be life and limb”).9 To be properly issued, a subpoena must be imposed by an authorized person or entity. See Arthur R. Miller, 9A Federal Practice and Procedure § 2451 (3d ed.). In essence, one who has the authority to issue a subpoena possesses the right to obligate another person to provide testimony and/or documents—i.e., the issuer can mandate the performance of another with respect to the production of such information. See Universal Airline v. E. Air Lines, 188 F.2d 993, 999 (D.C. Cir. 1951) (explaining that “[t]he function of the subpoena is to compel” the production of documents or the provision of testimony). Moreover, because subpoenas operate by compulsion, an authorized issuer of a valid subpoena also has the right to enforce the production obligation that a subpoena creates, consistent with the law. See, e.g., Fairholme Funds, Inc. v. Fed. Hous. Fin. Agency, No. 13-cv-1053,2019 WL 5864595, at *2 (D.D.C. Nov. 8, 2019); BuzzFeed, Inc. v. U.S. Dep’t of Justice, 318 F. Supp. 3d 347, 364–65 (D.D.C. 2018). The historical roots of the concept of a “subpoena” go back to the times of ancient Rome and Athens. “[I]n the Athenian court, the witnesses who were summoned to attend the trial had their choice of three things: either to swear to the truth of the fact in question, to deny or abjure it, or else to pay a fine of a thousand drachmas.” 3 William Blackstone, Commentaries *369. Later, with respect to old English common law, historians have noted that “[t]he specific use of the sub pena clause in writs summoning men before [the Privy] council and Chancery probably . . . developed out of administrative orders used in the first half of the fourteenth century.” William M. Ormrod, The Origins of the Sub Pena Writ, 61 Historical Research 11, 16 (1988). Fast forwarding a few decades, to the 1380s, the “writ of subpoena” was introduced by John Waltham, Chancellor to King Richard II. 3 William Blackstone, Commentaries *52; see also Erasmus Darwin Parker, The Origin and History of the Chancery Division, 29 L. Mag. Rev. 164, 170 (1904) (explaining that, before the creation of the writ of subpoena, other writs “threatened punishment for disobedience in indefinite terms,” but the writ of subpoena involved “the substitution of a definite for an indefinite penalty”). By the 1450s, “the process by bill and subpoena [had] become the daily practice of the court.” 3 William Blackstone, Commentaries *53; see also id. at *369 (noting that “[t]his compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, [was] of excellent use in the thorough investigation of truth”). 9 28 Case 1:19-cv-02379-KBJ Document 46 the right to direct the performance of documents and testimony, and (2) the that is so duty imposed. For his part, the Advantage Fund, Ltd. v. Colkitt, motion to compel compliance subpoena was not privileged right recipient to perform in accordance with the of another with respect to the production to enforce the performance obligation of a valid subpoena has a presumptive subpoena’s requirements. See, 216 F.R.D. 189, 194–96 e.g., GFL (D.D.C. 2003) (granting subpoena where the material and the subpoena was not overbroad or issued for improper rights sought by and duties are, of course, what the distinguishes tangible things that 1. typically precede Subpoenas a the issuance of a a or from the requests for voluntary production of documents, testimony, subpoena a with a These well-established purposes). Page 31of 120 a valid subpoena carries with it at least two legally recognized Consequently, rights: (1) Filed 11/25/19 subpoena. In Standard Civil Actions on behalf of a party and as an officer of the court can secure information for use in an existing federal lawsuit by issuing a In the acting testimony is See Fed. R. Civ. P. 45. Although private parties ordinarily do not have the authority the civil case, an attorney to the custodian of the records or to the person from whom subpoena sought. typical to mandate others’ recipient to provide documents and/or of the court that is presiding subpoenas performance, with respect to testimony subpoenas the right to compel derives from the Article III power over the underlying case. Indeed, the party issues its in the name of the court, and typically does so after unsuccessful negotiations over a requested voluntary status of the negotiations enforceable subpoena accordance with the over the triggers whatever the production. And, ultimately, requested information, a legal duty on the subpoena, by providing the 29 the party’s issuance of part of the recipient requested testimony an to perform in and/or materials. Case 1:19-cv-02379-KBJ Document 46 These rights and duties operate course, without a court’s as a matter of law—that intervention—during case. A subpoena-enforcement refuses to provide documents legal Filed 11/25/19 action the only Page 32 of 120 is, in the ordinary of a civil pretrial, preparatory phase becomes necessary if the recipient or testimony despite having received a subpoena. See a court to hold in contempt “a person who, having been served, fails without adequate excuse to obey the subpoena”). In that Fed. R. Civ. P. 45(g) (authorizing circumstance, under the Federal Rules of Civil Procedure, the subpoena’s issuer can file a separate civil lawsuit in the district court in which compliance has been mandated, see, e.g., Fairholme Funds, 2019 WL 5864595, at *2, and in the context of that lawsuit, a federal judge subpoena and disputed scope of the that pertain determines various to the validity authorized to issue of the legal issues pertaining to the required response. Common subpoena—e.g., an enforceable necessary terms to give rise to legal whether the issuer and whether this particular subpoenas, enforceability duty subpoena issues of the are those was actually contains the to perform—and also the extent of v. Allstate Ins. Co., No. 05-mc-0439, 2006 WL 241228, at *1 (D.D.C. Jan. 26, 2006) (denying an issuer’s motion to compel the recipient’s duty performance to respond. where the subpoena mc-0203, 1992 WL 235889, work product privilege See, e.g., Truex at issue was invalid); Weiss v. Mentor Corp., No. 92- at *2 (D.D.C. July 10, 1992) (evaluating claim of attorney in the context of a motion to compel compliance with a subpoena). Significantly for present purposes, if a subpoena is valid and the recipient is not some response is due by ordinary operation of the law. Put another way, as explained above, a valid subpoena ordinarily gives rise to a otherwise privileged to ignore it, then 30 Case 1:19-cv-02379-KBJ Document 46 enforceable legally duty to perform in the Filed 11/25/19 manner. And a court order is the requested well-established mechanism for the enforcement of that that the recipient an order that has breached the compels the recipient obligation: to perform that the duty Page 33 of 120 to comply with the if the court finds subpoena creates, subpoena. See, Denture Cream Prod. Liab. Litig., 292 F.R.D. 120, 129 (D.D.C. 2013) motion to compel compliance to produce business with a subpoena in deciding whether the records). Moreover, claim at issue is properly before it, the court not the subpoena’s assuming with that the standing subpoena-enforcement to an existing federal case), important subpoena As has the issues that to recognize that the of a subpoena has to disclose, enforceable as to whether or information. Rather, in the correct venue with respect duty a subpoena- question of whether particular question or not the recipient information that the of whether the recipient of on its assessment of whether the a to perform in response to a subpoena at all. a general matter, the disclosure-of-information issue will be determined based involved are raised by the claims presented. or may withhold, the is entirely distinct from the legally in part claim is properly before it (because a party subpoena dispute legal (granting subpoena-enforcement does not inquire requested e.g., In re corporations the court that is called upon to review enforcement dispute resolves the subpoena requests usually issuer had other ways to get the seeks resolution of the It is also and requiring the it issues documentary by the court information that the subpoena or the answers to the particular questions that a subpoenaed witness will be asked, can be withheld as subject to an applicable privilege, or whether the subpoena is requests, as overbreadth or undue burden. In standard civil cases, common law privileges such as the attorney-client privilege, the attorney workimproper for other reasons, such 31 Case 1:19-cv-02379-KBJ Document 46 and the marital product privilege, privilege Filed 11/25/19 Page 34 of 120 are often invoked to withhold subpoenaed information, and the privileged information is omitted from the testimony and/or redacted from the documents at issue. See, e.g., BuzzFeed, Inc., 318 F. Supp. 3d at 361–62 whether information (assessing federal law enforcement (evaluating whether privilege); Weiss, privilege); sought by subpoena GFL Advantage Fund, 216 F.R.D. at 194–95 materials subpoenaed were covered by the 1992 WL 235889, at *2 (considering a objection to producing privileges that was protected by the subpoenaed materials). attorney-client work-product privilege The Constitution establishes other can attach to prevent certain disclosures. See, e.g., United States Sec. & v. Brown, No. 09-cv-1423, 2010 WL 11602637, at *1–2 (D.D.C. Sept. 29, 2010) (evaluating whether production of documents would violate an individual’s Exch. Comm’n Fifth Amendment right against self-incrimination). By contrast, it is relatively rare for the law to compulsory legal process—i.e., the right to produce any documents or provide any enormously powerful, recognize an “immunity” to of the recipient of a valid subpoena to decline testimony. because it operates to nullify In effect, such an immunity is the legal obligation to perform that a valid subpoena creates. The sole immunity to compulsory process that DOJ specifically identifies in its briefs, outside of the instant context, is the Constitution’s Speech and Debate Clause. to “any Speech (See Def’s Mot. at 68.) Article I provides that, with respect or Debate in either House,” any U.S. Senator or Representative “shall not be questioned in any other Place[.]” U.S. Const. art. I, § 6, cl. 1. The Supreme Court has interpreted this provision to immunize members of from having to appear and to provide Congress and their aides testimony regarding “anything generally 32 done in a Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 35 of 120 session of the House by one of its members in relation to the business before it.” Gravel v. United States, 408 U.S. 606, 624 (1972) (internal quotation marks and citation omitted). 2. Legislative Subpoenas Legislative subpoenas of investigations that are issued by congressional committees in the course derive from the Article I authority of the Article III auspices of the federal courts. It is reasonably clear that subpoenas rather than the Congress, “legislative are older than our country itself[,]” Trump v. Mazars USA, LLP, 940 F.3d 710, 718 (D.C. Cir. 2019); Representatives to conduct moreover, and the power of committees of the House of investigations that involve issuing subpoenas to witnesses for documents and testimony is similarly well established, see Watkins v. United States, 354 U.S. 178, 187–95 (1957); see also Eastland v. U. S. Servicemen’s Fund, 421 U.S. 491, 504–05 (1975); Barenblatt v. United States, 360 U.S. 109, 111–12 (1959); Quinn v. United States, 349 U.S. 155, 160 (1955); Sinclair v. United States, 279 U.S. 263, 291 (1929), overruled The duty on other grounds by United States v. Gaudin, 515 U.S. 506 of the recipient of a valid legislative subpoena to respond to that authorized call of action for the Supreme (1995). 10 good of the country is also indisputable. In this regard, the Court has stated that “persons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery[,]” United Even before the ratification of the Constitution in 1787, “[t]he colonial assemblies, like the House of Commons, very early assumed, usually without question, the right to investigate [and] [t]hese 10 ... were investigations sometimes conducted by the House itself and sometimes by committees clothed with authority to send for ‘persons, papers, and records.’” C. S. Potts, Power of Legislative Bodies Punish for Contempt, 74 U. Pa. L. Rev. 691, 708 (1926). 33 to Case 1:19-cv-02379-KBJ Document 46 States Filed 11/25/19 Page 36 of 120 v. Bryan, 339 U.S. 323, 331 (1950), and has further noted that the Court itself has “often iterated the jurisdiction of this public importance of the Government is bound to duty, perform Indeed, the Supreme Court has specifically stated, which every person within the when properly summoned” id. in the most direct and eloquent terms, that “[i]t is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent unremitting obligation to respond to subpoenas, to respect the and its committees and to proper testify fully investigation.” Watkins, legislative subpoenas give performance obligation dignity of the Congress province of 354 U.S. at 187–88. Thus, for all intents and purposes, rise to the of another and the action. It is their with respect to matters within the right same rights (i.e., the of enforcement) right and the to compel the same duties (i.e., the to respond in the absence of a privilege) that exist in the civil action context. It should come as no surprise that the authorized committee of observed, legislative Congress or that subpoena-backed issues rights and duties that attach when a subpoena are ordinarily requests for information to be a duly reverentially provided to the House in the context of its Article I investigations have traditionally been respected, consistent with core democratic and constitutional norms. See, e.g., Mazars, 940 F.3d at 721 (noting that, in response to a legislative request for information of “the Iran-Contra Affair, Reagan including “declined to assert executive excerpts of his personal diaries omitted)); Sec’y during the investigation the role of the President,” President Ronald privilege, going to Congress” so far as to furnish relevant (internal quotation marks and citation see also Letter from Tobias Lear, Sec’y to the President, to Henry Knox, of War (April 4, 1792) (on file with the 34 Library of Congress) (communicating to Case 1:19-cv-02379-KBJ Document 46 Knox that he “will Secretary lay before Filed 11/25/19 the House of Page 37 of 120 Representatives such papers, from as are requested by the enclosed resolution,” which empowered a House committee “to inquire into the causes of the failure of the late expedition under [his] department, Major General St. Clair . . . [and] to call for such persons, papers, and records, as may be necessary to assist their subpoenas inquiries.”). Moreover, when do arise, the conflict is typically resolved House committee representatives and the person directed—a process commonly known Congress rarely disputes through negotiations between or persons to whom the subpoena is as “accommodation”—and, have had to resort to the over congressional implementation thus, committees of of enforcement mechanisms. See Mazars, 940 F.3d at 721 (“Presidents, too, have often been the subjects of Congress’s legislative investigations, though intervention”); see, e.g., id. at 721–22 ( “Thanks to a last-minute the White House and the Senate, the courts select committee investigating compromise between were kept out of a dispute” over whether a “the Whitewater land deal and related matters” the Clinton administration “could former fewer of these have required judicial subpoena meeting notes taken by during President Clinton’s lawyer”). comes with the territory, as explained above. It is accepted that the Legislature has at its disposal additional means of enforcing That said, enforcement generally its subpoenas duties to as compared to those that are available to private parties who impose perform by issuing subpoenas in the context of civil cases. See Eastland, 421 U.S. at 504–05. Those additional tools include the power of inherent contempt. See Watkins, 354 U.S. at 216 v. Dunn, 19 U.S. 204 (1821)). “[T]he long power permits Congress to rely on its own constitutional (citing Anderson dormant inherent contempt 35 Case 1:19-cv-02379-KBJ Document 46 authority to detain and imprison until the individual Congressional complies [one with who defies Page 38 of 120 a subpoena and is found in contempt] demands.” See Todd congressional Research Service, RL 34097, Enforcement of Filed 11/25/19 Garvey, Power and the Congress’s Contempt Congressional Subpoenas: Law, History, Practice, and Procedure 1 see also id. at 10 (explaining that “[u]nder the inherent contempt power[,] the individual is brought before the House or Senate by the Sergeant-at-Arms, (May 12, 2017); tried at the bar of the body, elsewhere”). Congress and can be imprisoned or detained in the can also issue a contempt to the Executive branch for potential criminal DOJ has also traditionally accepted that Capitol or perhaps citation, and then certify this finding prosecution. See 2 U.S.C. §§ 192, 194. a committee of Congress can rely on the standard enforcement mechanism that is available to others who issue valid and legally enforceable subpoenas: it can Cong. Requests Op. a civil action in federal court. See Response to for Info. Regarding Decisions Made Under the Indep. Counsel Act, 10 O.L.C. 68, 87 (1986) (“The most likely route for civil action of bring Congress Privilege, to take would be to file a see also Prosecution for Contempt of an Executive Branch Official Who Has Asserted a Claim of Executive seeking enforcement of the subpoena.”); 8 Op. O.L.C. 101, 137 & n.36 (1984). Notably, brought Congress on those occasions when legislative subpoena to court, the related civil actions involve the same subpoena validity, the purported immunity allegedly privileged of the recipient e.g., Mazars, 940 F.3d at 732–40 whether documents sought disputes questions nature of the material have been about relevance, requested, and the as courts consider in other cases of this kind. (assessing whether were relevant to the 36 legislative subpoena See, was valid and underlying congressional investigation); Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 39 of 120 Senate Select Comm. on Ethics v. Packwood, 845 F. Supp. 17, 21–23 (D.D.C. 1994) (evaluating whether compliance with a legislative subpoena would violate an individual’s Fourth and Fifth Amendment IV. rights). ANALYSIS In this case, the fact that to issue enforceable duly authorized committees of legislative subpoenas pursuant oversight investigations Congress to Congress’s have the power authority to conduct under Article I of the Constitution is not in dispute. That is, DOJ does not appear to challenge the Judiciary Committee’s compulsory process power, as a general matter. Instead, here as in Miers, DOJ contends that, nevertheless, the can selectively block any House committee’s exercise of its subpoena-related rights with respect to certain persons who qualify as the President’s “alter egos”— President namely, current and former senior-level presidential aides—because, in DOJ’s view, such persons are absolutely immune from compelled congressional process. (See, e.g., Def.’s Mot. at 64.) DOJ argues further that House committees cannot file lawsuits in federal court to seek enforcement of subpoenas that have been issued to aides whom the President has ordered not to testify (id. at 52–59), courts have no subject-matter jurisdiction to review any subpoena-enforcement action that a House committee files if a senior-level directed (see and that, in any event, the federal presidential aide does not respond as id. at 31–52). Setting aside the implications of these arguments for the law that governs III.C), it subpoenas generally (see supra Part contentions rely on basic assumptions the federal government under is important to recognize that DOJ’s about the relative power of the three branches of our constitutional scheme. 37 Indeed, as DOJ describes it, Case 1:19-cv-02379-KBJ Document 46 the Constitution of the United States government strictly segregates and sets its branches in perfect Executive, and the Judiciary are entirely unfailingly co-equal (a dynamic Filed 11/25/19 Page 40 of 120 the power of the federal equipoise—i.e., the Legislature, the distinct, completely independent, and that DOJ calls “the separation of powers”)—and this a driving force behind DOJ’s legal analysis that other foundational tenets of the Constitution, as well as the widely accepted common law constitutional construct is such principles that pertain For example, to subpoenas and subpoena notwithstanding adjudicate subpoena-related disputes the background disputes 75:17–18 [to that arise between (DOJ counsel asserting say what the law is] in any isn’t one”).) routinely to adjudicate subpoena- Congress and the Executive branch. (See Hr’g jurisdiction that the federal courts “absolutely have th[e] Tr. at authority case or controversy under Article III” but “[t]his just DOJ also insists that, despite the fact that ordinary citizens bring subpoena-enforcement claims in the federal courts all the time, committees of the House of Representatives branch in court to seek enforcement of to recalcitrant id. at 74:5–7 fact that federal courts in the context of civil actions, DOJ vigorously asserts that federal courts lack subject-matter related are cast aside. enforcement, government officials (“I’m making cannot subpoenas duly proceed against authorized the Executive for testimony and information issued in the context of congressional investigations. (See the argument that the Constitution does not allow . . . the House and the Executive Branch to sue each other in court[.]”).) Meanwhile, says DOJ, the President has the authority and his senior-level aides subpoenas to make unilateral determinations (both regarding whether he current and former) will respond to, or defy, the that authorized House committees issue 38 during constitutionally authorized Case 1:19-cv-02379-KBJ Document 46 investigations of potential wrongdoing Filed 11/25/19 within his administration. (counsel asserting that “if the person has testimonial asserted it, not the person—it’s wouldn’t be able to compel Unfortunately id. at 125:3–6 (See and the President has the President’s to assert—then, yes, [Congress] the person”).11 for DOJ, and as explained relative power of the federal courts, established immunity, Page 41of 120 fully below, these contentions about the congressional committees, separation-of-powers principles beyond and the President distort all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial for senior-level presidential aides transgress core constitutional truths immunity (notwithstanding OLC’s persistent heralding of these and similar propositions). By contrast, textbook constitutional law the Judiciary readily reveals that, precisely because the Constitution bestows upon the power to demarcate the boundaries of lawful conduct officials, the federal enforcement disputes courts have subject-matter jurisdiction concerning legislative subpoenas by government to entertain subpoena- that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official the authority—when necessary to hold government officials (up to, and including, President) accountable, as representatives of the People of the United States—then House committees have both Article III standing and enforcement of their duly authorized and legally a cause of action to pursue judicial enforceable requests for information. What is missing from the Constitution’s framework as the Framers envisioned it is the For a similar vantagepoint, see the circumstances described by George Orwell in the acclaimed book Animal Farm. See George Orwell, Animal Farm 141 (Otbe Book Publishing 2018) (“All animals are equal but some animals are more equal than others.”) (capitalization altered). 11 39 Case 1:19-cv-02379-KBJ Document 46 President’s purported power to kneecap House Filed 11/25/19 investigations of Executive branch operations by demanding that his senior-level aides breach their compelled congressional process. Luckily matter to respond to dismantles the edifice that DOJ appears to have over the years to enshrine the proposition that a President’s senior-level aides have absolute the legal duty for this Court, an existing precedent that is on all fours with the instant (Miers) already systematically erected Page 42 of 120 immunity with respect to legislative subpoenas that Congress issues in course of its investigations; Miers does this by squarely refuting each of the threshold and merits arguments that DOJ seeks to advance in the instant Court finds Miers’s analysis compelling (albeit, admittedly, not consistent with stare decisis reasoning herein, cannot principles, adopts Judge where referenced in the discussion below. accept DOJ’s present reliance accommodations the Court practices. Nor case. This controlling) and, Bates’s precedential Consequently, on carefully curated rhetoric the Court concerning can it abide DOJ’s less-than-subtle historical suggestion that, our constitutional scheme, the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive branch, such that, under ultimately, the President wields Instead, with deference law concerning the intended government, virtually to the unchecked power. Supreme intersectionality Court’s foundational pronouncements of of our separate and co-equal branches of see, e.g., INS v. Chada, 462 U.S. 919, 951 (1983); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); Marbury, 5 U.S. at 176–77, this Court reiterates Miers’s well-sourced and thoroughly explained bottom-line conclusion: that, as a matter of law, senior-level current and former 40 Case 1:19-cv-02379-KBJ Document 46 presidential aides, including compelled by legislative congressional subpoena President for whom A. they Filed 11/25/19 Page 43 of 120 White House Counsels, must appear before Congress if process to do so. This means that such aides cannot on the basis of absolute testimonial work (or worked) immunity, defy a even if the demands that response. Federal Courts Have The Power To Adjudicate Subpoena-Related Disputes Between Congress And The Executive Branch In the Miers case, DOJ “concede[d]” that “28 U.S.C. § 1331 provides subject matter jurisdiction” over the Judiciary Committee’s subpoena-enforcement conclusion with which rejected a Bates agreed. Miers, 558 F. Supp. 2d at 64. Miers also DOJ’s jurisdictional claim that “this dispute is not one traditionally thought to be amenable to judicial resolution[,]” subpoena-enforcement regard, Judge lawsuit, id. at 67, and that, therefore, the House’s claim should not be permitted to proceed, id. at 71–73. In this the Miers opinion stands for the jurisdiction over subpoena enforcement proposition disputes that courts have federal between the Executive branch, and that such disputes are justiciable, other two branches of government occupy places Legislature regardless question and the of the fact that the on the opposite side of the “v” in the case caption. This Court agrees with Miers’s analysis and conclusions for the reasons that follow in this section of this Memorandum 1. Opinion, as well as those in Part IV.B. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over Subpoena-Enforcement Claims Under 28 U.S.C. § 1331 Federal courts are courts of limited jurisdiction, see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), which means that their power to adjudicate legal disputes must be affirmatively established by law. As a general matter, under section 1331 of Title 28 of the United States Code, federal courts have statutory legal authority to entertain claims that arise under the Constitution and the laws of the United States. See 41 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 44 of 120 Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (explaining that properly invokes § 1331 jurisdiction when she the Constitution claim with the by duly “subpoena Supp. Committee that an Executive branch official “failed to comply congressional subpoenas” fits this category, because the House power derives implicitly from Article I of the Constitution[.]” Miers, 558 F. 2d at 64. question a colorable claim ‘arising under’ or laws of the United States”) (citation omitted). Miers reasoned that a Judiciary issued pleads “[a] plaintiff Judge Bates also observed that the D.C. Circuit had addressed the of the federal courts’ statutory subject-matter jurisdiction with respect to controversy similar to the one at issue in the Miers case (and here): a dispute a over a a subpoena to AT & T concerning certain documents that the company possessed in relation to an FBI wiretapping program. The Circuit had House committee’s issuance of conclusively § determined that the federal courts have 1331 because of the “fundamental constitutional F.2d at 389, which Judiciary jurisdiction under 28 U.S.C. rights involved[,]” AT & T I, 551 was enough for Judge Bates to conclude that claims that the Committee made in the Miers case “arise[] under the Constitution for purposes of § 1331[,]” Miers, 558 F. Supp. 2d at 64. This conclusion is not at all surprising. Indeed, if electronic searches of popular case databases are any guide, the power of the federal courts to review and resolve subpoena-enforcement claims in standard civil actions is rarely challenged, and federal over disputes concerning subpoenas that arise in the context of cases in which federal claims are being litigated. See, e.g., courts routinely exercise subject-matter jurisdiction Fairholme Funds, 2019 WL 5864595, at *2; BuzzFeed, Inc., 318 F. Supp. 3d at 364–65; Truex, 2006 WL 241228, at *1; GFL Advantage Fund, 42 216 F.R.D. at 194–96; Weiss, Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 45 of 120 1992 WL 235889, at *2; see also Fed. R. Civ. P. 45. Thus, Courts appear to have determined that these miscellaneous lawsuits that are filed for the purpose of seeking a court order to enforce a subpoena, arise under federal law for the purpose of section 1331 where the this underlying case is, itself, federal in nature. The Court concludes that same analysis concerning the issue applies subpoenas implicitly of section 1331 to the Judiciary claim at from Article I of the Constitution,” Miers, 558 F. Supp. 2d at 64, which it appears that DOJ does not contest, the that the legal as the Judiciary Committee’s power to issue here. Thus, insofar “derives applicability claim subpoena-enforcement Committee has brought to this Court for resolution likewise arises under the Constitution for the purpose of section 1331. As a reminder, DOJ conceded as much in the matter before Judge Bates. It retreats from that concession now, however, and launches an attack on this Court’s statutory subject-matter jurisdiction, by deflecting attention away from the wellaccepted scope of a federal court’s authority under 28 U.S.C. § 1331 and homing in on another statutory provision: 28 U.S.C. § 1365. Pointing that the federal courts do not, in fact, have statutory entertain subpoena-enforcement Def.’s Mot. at 45–46 over some Senate] (asserting claims brought to that statute, DOJ maintains subject-matter jurisdiction by committees of the House. that section 1365 establishes federal court congressional subpoena-enforcement but not others [i.e., those brought by the actions [i.e., those House]”).) to (See “jurisdiction brought by the It is interesting to note that DOJ appears to have rejected OLC’s internal advice about the viability of this legal argument, for according it presses this to OLC, “[t]he jurisdictional contention here despite the fact that, legislative history of these statutes 43 . . . counsels against th[e] Case 1:19-cv-02379-KBJ Document 46 conclusion” that section 1365 impacts the lawsuits that involve officials. Response to Cong. Requests another subpoenas issued to Executive branch for Info., 10 Op. O.L.C. 68, 87 n.31 (1986). precedential opinion whether a different House committee could documents that it had issued to the Page 46 of 120 of federal courts to entertain jurisdiction subpoena-enforcement Regardless, Filed 11/25/19 from this district sue to enforce a legislative addressed Attorney General) concerned (which subpoena precisely for same the statutory jurisdictional argument that DOJ brings here, and unequivocally rejected it. See Holder, 979 F. Supp. 2d 1. In Holder, Judge Amy Berman Jackson first noted that section 1365, on its face, did not apply to the (explaining with cases dispute before it. See id. at 17 that “section 1365 specifically states that it does not have involving executive branch She then went a legislative effort to enforce a subpoena withholding records on the on to thoroughly evaluate the grounds of against anything an official of the a governmental “chronology of events enactment of section 1365” and ultimately concluded that “the to do privilege”). surrounding jurisdictional the gap that it was meant to cure was not a lack of jurisdiction over actions like this one” but rather problems related to the amount-in-controversy requirements for federal jurisdiction that were in place in the 1970s, which were first identified in a case involving enforcement of a Watergate Senate subpoena, Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973), and follow-on issues related to jurisdiction over suits against officers capacities, Holder, legislative history brought in their personal versus official 979 F. Supp. 2d. at 18–19; see also id. (explaining that the indicates that the Congressional finding language of section 1365 “‘is not intended to be a that the Federal courts do not now have the 44 authority to hear a Case 1:19-cv-02379-KBJ Document 46 civil action to enforce a subpoena against S. Rep. No. 95-170, at 91–92 (1977)); to Cong. Requests for Info. Regarding Decisions Made Under the Counsel Act, 10 Op. O.L.C. at 87 n.31 (noting the for its conclusion the officials through Legislature likely can enforce Judge as support Executive branch regard, and sees across statutes[,]” or otherwise, “are not unusual events in drafting[,]” and the Supreme provisions provided Conn. Nat’l Bank that “there is no ‘positive a a court “must give effect to both” repugnancy’ (1842)). Indeed, subsequently courts must be cautious when enacted statute, by implication scope of jurisdiction that section 1331 confers, Mims 565 U.S. 368, 383 between the two laws[.]” v. Germain, 503 U.S. 249, 253 (1992) (quoting Wood v. United 16 Pet. 342, 363 that in this analysis Indeed, “redundancies Court has commanded that, in such circumstances, argument history subpoenas against Berman Jackson’s no reason to reach a contrary conclusion. jurisdictional same legislative Indep. a civil action). This Court agrees with States, Page 47 of 120 an officer or employee of the Federal government’” (alteration omitted) (quoting Response Filed 11/25/19 (2012), particularly because evaluating an and overlap, limits the v. Arrow Financial Servs., LLC, Congress is well-aware of how to see EEOC v. Lutheran Social Servs., 186 F.3d 959, 963 (D.C. Cir. 1999); I.A.M. Nat. Pension Fund Ben. Plan C. v. Stockton expressly strip jurisdiction from federal courts, TRI Indus., 727 F.2d 1204, 1209 (D.C. Cir. 1984). This Court’s Miers and Holder is sufficient to matter arguments explain why in this case. 45 the Court rejects adoption of holdings of DOJ’s statutory subject- Case 1:19-cv-02379-KBJ Document 46 2. Filed 11/25/19 Page 48 of 120 Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute DOJ’s primary reason for insisting that the federal courts lack subject-matter jurisdiction to review the Judiciary Committee’s subpoena-enforcement claim relates to its views of the Constitution’s limits on the exercise of judicial authority. In its briefs, DOJ asserts repeatedly, in various ways and at different points, that it is the Constitution’s separation-of-powers principles that preclude this Court’s consideration of the instant subpoena-enforcement lawsuit. (See, e.g., Def.’s Mot. at 18–23.) And while it is difficult to ferret out the differences between the various separation-ofpowers-related arguments that DOJ makes in this regard, it appears that this battle is being waged on two related fronts. First of all, DOJ insists that “[t]his dispute is not of the type traditionally thought capable of resolution through the judicial process[.]” (Def.’s Mot. at 32 (capitalization altered).) It further maintains that “[l]awsuits of this kind imperil the Constitution’s allocation of power among the Branches of the Federal Government.” (Id. at 40.)12 Boiled to bare essence, and much like the absolute testimonial immunity claim that DOJ makes with respect to the merits of the Judiciary Committee’s case, these threshold contentions about the limited scope of the Judiciary’s power to hear the claim In its opposition and cross-motion brief (ECF No. 32), DOJ also argues that, even if Article III’s prerequisites to the Court’s subject-matter jurisdiction and the Judiciary Committee’s standing are satisfied, a federal court should “stay its hand” with respect to resolving disputes between the Legislature and the Executive branch over congressional subpoenas, due to “the acute separation-ofpowers concerns presented by judicial intervention in political disputes between the elected branches.” (Id. at 56.) As noted previously, DOJ has expressly withdrawn this argument by Notice (see Def.’s Accommodation Resp. at 2), conceding that the parties are now at an impasse over whether or not McGahn has a legal duty to appear before the Judiciary Committee for testimony (id.). Therefore, this Court has not reached, or ruled upon, the “accommodations” species of DOJ’s separation-of-powers argument. 12 46 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 49 of 120 at issue under the Constitution are based on “the Executive’s interest in ‘autonomy[,]’” Miers, 558 F. Supp. 2d at 103, and that interest, in turn, “rests upon a discredited notion of executive power and privilege[,]” id., as explained below. DOJ’s purported constitutional Consequently, concerns about the exercise of jurisdiction none of by the federal courts under the circumstances presented here is persuasive. a. The legal claim at issue here is not non-justiciable The first of DOJ’s assertions has the subtle overtones of argument. For example, DOJ suggests that what is at issue when the other two branches of government look to the enforceability House of a justiciability Judiciary to resolve inter-branch of a subpoena is a “‘political turf war’” Representatives disputes (Def.’s over the Mot. at 32 (quoting U.S. v. Mnuchin, 379 F. Supp. 3d 8, 10 (D.D.C. 2019)), and that “to preserve the independence and autonomy of all three co-equal branches, the political branches must do battle in the superior branch of government for id. at 35 (noting that, political arena, not appeal to the a definitive resolution” (Def.’s Judiciary Mot. at 32; see also “even outside the context of disputes between the political Branches, the House itself has questioned whether its demands for information justiciable”); as a id. at 41 (arguing that “[t]he process of negotiation are ever and accommodation protects the political branches from excessive judicial interference and the Judiciary from the undue politicization and risk to its long-term scope or scale of the other inter-branch argument, this assertion is plainly noted above, claims misplaced a subpoena-enforcement regarding the enforceability disputes independence”)). Whatever the that DOJ is referencing with this with respect to the instant action, since, as dispute is not a “political” of a subpoena raise 47 battle at all. Instead, garden-variety legal questions Case 1:19-cv-02379-KBJ Document 46 that the federal courts address routinely and are Filed 11/25/19 well-equipped Page 50 of 120 to handle. See Miers, 558 F. Supp. 2d at 71. Consider the particular claim that the Judiciary Committee makes in the instant action. Its complaint investigation, specifically alleges that, the Committee issued in the course of a congressional a duly authorized legislative subpoena White House Counsel Donald F. McGahn II pursuant to its Article I powers ¶ 72), and that “[t]here is no lawful basis for McGahn’s refusal to to former (Compl. appear” (id. ¶ 110). Thus, the Judiciary Committee’s pleading presents pure questions of law for the Court’s resolution: in essence, the Committee is asking this Court to determine what the law establishes with respect to its right to compel McGahn’s testimony per the subpoena it has issued, and also what the law says about his duty to respond, as the recipient of the Committee’s directive. There is nothing non-justiciable about such legal questions. Indeed, federal courts across the enforcement actions country address these very inquiries involving private parties all the time. (See in the context of supra Part III.C.1.) DOJ’s talk of “political turf war[s]” and its soaring protestations about the Committee’s claim being not that issues such “capable of judicial resolution” as whether a and to what extent the particular subpoena recipient litigant, the Mot. at 32–33) obscure the fact is valid and enforceable, and whether of such a subpoena has a straightforward, fully justiciable questions Notably, (Def.’s legal duty to respond, are of law. See Miers, 558 F. Supp. 2d at 71. mere fact that a committee of Congress, as opposed to some other has brought the instant subpoena-enforcement claim at bar has nothing whatsoever to do with whether this Court has subject-matter In general, federal courts assess their jurisdiction subject-matter jurisdiction 48 to entertain it. on the basis of the Case 1:19-cv-02379-KBJ Document 46 claims that Filed 11/25/19 Page 51of 120 are presented, not on the identity of the parties. See Freedom from Religion Found., Inc. v. Geithner, cases, the identity grounded in the federal 644 F.3d 836, 844 (9th Cir. 2011) (“[I]n federal-question of the parties is irrelevant and the district court’s jurisdiction is raised by the question(s) plaintiff.”); Teamsters, Chauffeurs, v. Greenawalt, 880 F. Supp. 1076, 1081 (M.D. Pa. 1995) (“Rarely, if ever, does the existence or non-existence of federal question Warehousemen & Helpers, Local 764 jurisdiction turn on the identity of the parties to the lawsuit.”). And the Supreme Court has specifically confirmed that not all legal claims that properly deemed impact non-justiciable political questions. See, the political e.g., Zivotofsky are branches ex rel. v. Clinton, 566 U.S. 189, 196 (2012) (explaining that, although the legal claim at issue implicated the political status of Jerusalem as the capital of Israel, Zivotofsky “Zivotofsky requests claim, the Judiciary that the courts enforce a specific must decide if Zivotofsky’s statutory right. To resolve his interpretation and whether the statute is constitutional. This is a familiar Chada, 462 U.S. at 942 significant political (explaining of the statute is correct, judicial exercise.”); that “the presence of constitutional issues with overtones does not automatically invoke the doctrine” and that “[r]esolution of see also litigation challenging political question the constitutional authority of one of the three branches cannot be evaded by the courts because the issue have political implications”). jurisdiction, policy standard decisions just Put another way, for the purpose of legal claims do not because they automatically concern a political evaluating subject-matter transform into non-justiciable entity. The veritable death-knell with respect to DOJ’s present suggestions is the D.C. Circuit’s jurisdictional 49 analysis non-justiciability in AT & T I, a case that Case 1:19-cv-02379-KBJ Document 46 involved a “clash of the powers of the legislative Filed 11/25/19 Page 52 of 120 and executive branches of the United States” under circumstances that are not dissimilar to the subpoena-enforcement conflict at issue here.13 AT & T I, 551 F.2d at 389. The D.C. Circuit acknowledged that, “present[ed] like one of the specifically cases that had proceeded it, the lawsuit Watergate a clash of congressional subpoena power and executive privilege.” Id. at 390 (referencing Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) and United States v. Nixon, 418 U.S. 683 (1974)). The panel nonetheless determined that the federal courts have subject-matter jurisdiction over the conflict under 28 U.S.C. § 1331, and it also expressly noted that the issue presented seeking certain documents relating to a warrantless justiciable that, “at in the case—i.e., the enforceability of a House subcommittee’s one. Id. at 389–91. Significantly wiretapping subpoena program—was a fully for present purposes, the Circuit observed a minimum, the mere fact that there is a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution of the conflict. United States v. Nixon . . . resolved an analogous conflict between the executive and judicial branches and stands for the justiciability of such a case.” Id. at 390 (citing United States v. Nixon, 418 U.S. 683). In the wake of the AT & T I decision, DOJ’s insistence that the instant dispute legislative subpoena over the enforceability of the House’s is not of the type of claim that the federal courts can resolve In AT & T I, a House subcommittee had issued a legislative subpoena to a private entity (AT & T) documents that concerned warrantless wiretapping that the company had undertaken at the request of the FBI. See 551 F.2d at 385. The Executive branch interceded by directing AT & T—“as an agent of the United States”—to refuse to comply with the subpoena. Id. at 387. When it appeared that AT & T would, in fact, comply despite this command from the President, DOJ filed suit against AT & T, and the chairman of the House subcommittee that issued the subpoena was permitted to intervene as a defendant. Id. 13 demanding 50 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 53 of 120 without doing violence to the Constitution (Def.’s Mot. at 32–33) cannot be sustained.14 b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process Pivoting to the second variation of their separation-of-powers argument, DOJ calls upon history and asserts that “centuries of historical practice” (id. at 32) 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. (See id. at 33 (interpreting Raines v. Byrd, 521 U.S. 811 (1997), as having established that “[t]he fact that past Congresses never resorted to the courts to resolve these and other inter-branch disputes underscored that the suit was not one traditionally thought to be capable of resolution through the judicial process.” (internal quotation marks omitted)).) While it appears to be true that “for two hundred years after the Founding” lawsuits between the Congress and the Executive branch “did not exist, even though disputes between the Legislative and Executive Branches over congressional requests for information have arisen since the beginning of the Republic” (id. at 33), the jurisdictional lesson that DOJ appears to DOJ’s effort to minimize the impact of the D.C. Circuit’s holding in this regard is unpersuasive. (See Tr. at 50:12–16 (“[T]o the extent that [AT & T I] addresses jurisdiction, it’s in a drive-by. And the Supreme Court has said many times that courts are not bound by drive-by jurisdictional holdings. So I don’t think AT & T is in any sense binding on the jurisdictional question.”). AT & T’s jurisdictional and justiciability pronouncements are not drive-by rulings by any stretch of the imagination; indeed, the D.C. Circuit sua sponte raised the issue of jurisdiction under section 1331. See id. at n.7 (“We are aware that 28 U.S.C. § 1331 was not alleged as the basis for jurisdiction. Although Fed. R. Civ. P. 8(a)(1) requires plaintiffs to make an allegation of the basis asserted for the district court's jurisdiction, courts are not restricted to the statutory basis alleged if the factual allegations fairly support an alternative basis in a more proper or simple manner.”). Thus, unless and until that case is overturned, it is binding precedent in this Circuit. (See supra Part III.B.) 14 51 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 54 of 120 have learned from the historical record seems to be at odds with the Court’s Supreme own recounting of the relevant facts. In the case of Watkins v. United States, 354 U.S. 178 (1957), Chief Justice Earl Warren tells a detailed and remarkable story of the existed in seventeenth century varied use of the England, contempt power” Fatefully, to enforce its own mandates, as well as its authority over . . . privileges[,]” id. at and importantly, the Houses of Parliament “judicial review of the exercise of the contempt power would be “precluded[,]” id. at 188. And Parliament’s determination “that as it and in particular, of Parliament’s “broad and reservation unto itself of “absolute and plenary 188. power of inquiry legislative apparently decided that expressly or the assertion of privilege” as a direct consequence of no court had jurisdiction to consider such questions[,]” the unreviewable contempt power that Parliament had claimed was, predictably, “abused.” Id. at 188, 189. for present purposes, Chief Justice Warren takes Significantly care to emphasize that, “[i]n the early days of the United States, there lingered direct knowledge of the evil effects of absolute power[,]” contempt power by the legislature (emphasis added). of the ability id. at 192, and thus, “[f]rom the very outset the was deemed subject to judicial review[,]” This is a much different narrative about the historical of the courts to entertain claims concerning the legislative subpoena use of id. understanding of enforceability a than DOJ offers here. And the Court’s acknowledgement that DOJ’s particular argument is that the federal courts do not have subject-matter jurisdiction to adjudicate a dispute over a legislative that it has not made direct representations subpoena at Congress’ about whether the federal courts 52 behest, and historically Case 1:19-cv-02379-KBJ Document 46 entertained claims that private process, does not diminish that citizens brought Filed 11/25/19 to challenge divergence. Regardless, Page 55 of 120 compelled congressional the historical record plainly reflects that, since the Revolution, judicial review has been available to use of compulsory to compelled respect (discussing found, congressional process and/or the invocation of performance Kilbourne is consistent with the law. See id. at 193–94 in 1881, that “the House had . . . exceeded the limits of its own authority” when Supreme and not legislative, in nature); judicial, 940 F.3d at 718–21 (describing at length a series of cases throughout competing pertaining Supreme interests of the Executive and the to legislative merits of claims that the McGrain, that the that history Legislature judges might to adjudicating be too unduly hampered.” courts lacked the to compelled authority Consequently, Republic simply subpoenas the remedies congressional danger (first citing 263). This, too, they to power to probe Id. at 194–95 indicates authority was ordered with respect process, not that the federal to even entertain such claims. DOJ’s present suggestion that the history of does not “the concern about the exercise of judicial aggressive concerning challenges given legislature’s 273 U.S. at 194–95, and then Sinclair, 279 U.S. at Court’s primary with respect to had overstepped its bounds, in the executive branch were Supreme Congress). and had suggested caution with respect to the investigations, Congress in which Court had previously considered effective and honest conduct of the Government if the corruption see also Mazars, Court adjudicated challenges to legislative subpoenas issued by Watkins also touched upon the fact that the the a privilege with v. Thompson, 103 U.S. 168 (1881), in which the Supreme Court it initiated an inquiry that was the ensure that the contemplate our constitutional that the other branches of government would 53 Case 1:19-cv-02379-KBJ Document 46 enlist the to resolve Judiciary process in the context of Judiciary Page 56 of 120 over the scope of compelled legislative investigations—and if it exercises oversteps its bounds the disputes Filed 11/25/19 congressional thus that a federal court subject-matter jurisdiction over a claim like the one Committee brings here (see Def.’s Mot. at 32–36)—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 once again, it is well established that subject-matter legal claim specifically being asserted regardless a “responsibility Constitution upon the judiciary to insure that the religion provide right id. at 215; apparently cannot, explain why subpoena-related dispute between turns on the Congress placed by the does not unjustifiably to privacy nor abridge his liberty of speech, press, or assembly[,]” id. at 198–99, while at the same time, they must take care to “ample scope . . . to the Congress as the sole constitutional depository of legislative power[,]” the jurisdiction generally and of who makes it. Indeed, the Watkins Court noted that federal courts possess encroach upon an individual’s subpoena-enforcement actions, Congress this constitutional duty disappears, Watkins also or is neutralized, if arises between branches of government, rather than and an individual party who contends that the compelled congressional Legislature’s process is unlawful. seems to explain the dearth of cases during the two-century in which DOJ says that lawsuits the Executive Branch chronology see also, e.g., id. at 216. And DOJ does not, and period access to information held by (Def.’s Mot. at 33.) DOJ lays out a concerning “Congress’ . . . did not exist[.]” of recorded conflicts between Presidents and the House of Representatives with respect to Congress’s access to information between 1792 and 2008 54 (see Def.’s Case 1:19-cv-02379-KBJ Document 46 Mot. at 33–35), and because “for to invoke the power of the sought nearly (id. at 35), two hundred years the Page 57 of 120 Legislative to decide which side should Judiciary battle with the Executive” political Filed 11/25/19 concerning congressional requests Branch never in a prevail for information DOJ implies that courts must have had the view that their power to was unauthorized. It might well be so that courts were not engaged in resolving such conflicts. But Watkins suggests a adjudicate legal disputes different implication: investigations, between the branches Congress “so sparingly employed the power to conduct . . . [that] there [were] few cases requiring judicial review of the power.” Watkins, 354 U.S. at 193 (emphasis added). was an uptick in Congress’ use of its investigative power in the late nineteenth century, and yet, as DOJ emphasizes, “there were [still] very few cases To be sure, there with the dealing hardly investigative power.” establishes that “zero-sum ruled out Id. at 194. But that dearth of court decisions litigation as a matter of constitutional in federal court” had been categorically law, as DOJ suggests. (Def.’s Mot. at 36.) It is as logical, and perhaps even more so, to conclude that the Executive branch understood from prior case law the slim odds of successfully resisting the primary tool just that the Congress authorized routinely suggested basic had to check its abuses—a investigation—if consented to its challenges negotiate power of the were litigated in federal history on which there [was] general Congress issued in the context of to conduct of Supreme is inherent in the the fact that “[t]he legislative process” and that “[t]hat power is broad.” Watkins, 354 U.S. at 187. Moreover, it was 55 Court our Nation, there were “several agreement” including investigations an court, and thus, it the terms of its performance. As the in Watkins, even early on in the premises subpoena Case 1:19-cv-02379-KBJ Document 46 uncontroversial that concerning as proposed or possibly needed includes surveys of defects in our social, economic or political existing laws as well system for the purpose of enabling the Congress “comprehends probes the federal courts’ congressional and that it also authority on the to resolve inter-branch over compelled disputes process, the absence of recorded federal that DOJ’s brief identifies wisely picked its battles. Consequently, and somewhat Mot. at accepted 34) attempts scope of to obtain better supports the far less legislative subpoena fights, ironically, corruption, cases concerning the myriad over congressional (Def.’s sensational conclusion that, with respect to branch remedy them”; Thus, rather than shedding light “clashes between the two political Branches testimony” to into departments of the Federal Government to expose or waste.” Id. inefficiency Page 58 of 120 Congress’s investigatory authority “encompasses inquiries the administration of statutes”; that “[i]t Filed 11/25/19 the Executive DOJ’s main historical assertions dovetail in a manner that ultimately counteracts its own conclusions. That is, “[t]he fact that past Congresses disputes concerning the never resorted to the courts to resolve” to inter-branch congressional requests for information (Def.’s Mot. at 33) means that, unlike the Judiciary Committee of today, they did not have to, because instead of reaching an impasse over the Executive branch’s rank refusal to merely cooperate with congressional investigations, scope and intrusiveness of the Executive branch’s for information were resolved through negotiation” (id. at 36). See also Mazars, 940 Congress’ requests “the centuries-old process of political F.3d at 721 (explaining that “Presidents, too, have often been the legislative interventions,” but, concerns about the in contrast to disputes 56 subjects of Congress’s between House committees and Case 1:19-cv-02379-KBJ Document 46 private-citizen recipients of Filed 11/25/19 legislative subpoenas, Page 59 of 120 “fewer of these have required judicial intervention”). Finally, this Court notes that DOJ’s contention that the Constitution’s of powers bars the Executive has not judiciary concerning the from enforceability consistently maintained, publicly adjudicating disputes of between even in modern times. For example, a review of the v. Committee on Ways & Means, U.S. House of No. 19-cv-2173 (Nichols, J.), Trump v. Committee on Oversight & Reform of U.S. House of Representatives, No. 19-cv-1136 Mazars USA, LLP, No. 19-5142 the jurisdictional question, authority dispute flip (D.C. Cir.), over the enforceability of a legislative subpoena side of a lawsuit that argues that position subpoena-enforcement claims or that no subject-matter v. jurisdiction has invoked occasion, seeking resolution of should be quashed do not. subpoena a his tax returns. A as unlawful is merely should be enforced. jurisdiction to review such By arguing vigorously to entertain the here that the Judiciary Committee’s no position on the jurisdictional basis for the President’s maintenance of lawsuits to prevent by legislative subpoena, and Trump capacity) subpoena concerning a legislative they subpoena-enforcement action, yet taking records his personal that the federal courts have And it is either DOJ’s federal courts have (in on more than one a legislative (Mehta, J.), indicates that DOJ stood silent with respect as President Trump of the federal courts, lawsuit that asserts that the is an argument that it available dockets in Trump Representatives, to the and the Congress legislative subpoenas separation Congress from accessing his personal DOJ implicitly suggests that (much like absolute 57 Case 1:19-cv-02379-KBJ Document 46 testimonial immunity) the Filed 11/25/19 subject-matter jurisdiction Page 60 of 120 of the federal courts is properly invoked only at the pleasure of the President.15 The fact that DOJ has also recently expressly declined to press a jurisdictional argument in another subpoena-enforcement case that is currently pending before the D.C. Circuit is instructive. See 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 (D.D.C. Oct. 25, 2019), appeal docketed, No. 19-5288 (D.C. Cir. Oct. 28, 2019) (hereinafter Pending on appeal Judiciary jury In re Application for Grand Jury Materials). in the D.C. Circuit is a ruling concerning an application that the Committee submitted to the Chief Judge of this Court, requesting that grand information in DOJ’s possession concerning the Mueller Report be released to the Committee, Attorney over DOJ’s objection. Committee had previously sent a subpoena to General William Barr requesting the information, but that legislative command was granting (The ignored.) Chief Judge Howell issued a Memorandum Opinion and Order the Committee’s request for all of the portions of the Mueller Report that had been redacted to preserve grand jury secrecy and any underlying transcripts or exhibits referenced in the redactions. Id. at *38. DOJ proceeded to seek an emergency stay of Chief Judge Howell’s ruling in the D.C. Circuit. See Emergency Mot. for Appeal (“DOJ Stay Br.”), In re Application Stay Pending of Comm. on Judiciary, U.S. House of To be fair, in these lawsuits, President Trump argued that the congressional committee subpoenas are unenforceable in his personal capacity. But when DOJ was invited file an amicus brief at the appellate level in Mazars, it did not raise an objection to the courts’ jurisdiction; instead, it emphasized that federal courts “must” determine—after a “searching evaluation”—whether the legislative subpoena ought to be quashed because, for instance, it is “impermissibly attempting to interfere with or harass the Head of the Executive Branch.” Amicus Brief of the United States at 1–2, Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), 2019 WL 3714770, at *1–2. 15 58 Case 1:19-cv-02379-KBJ Document 46 Representatives, No. 19-5288 Filed 11/25/19 Page 61of 120 for an Order Authorizing Release of Certain Grand Jury Materials, (D.C. Cir.). During oral argument, when court’s subject-matter jurisdiction one of the panelists asked DOJ about the district to entertain the House’s legal remarked that, while the Executive branch action, DOJ counsel was “not advancing that argument[,]” it believed that DOJ “certainly has both standing and jurisdiction” to seek review of the district court’s injunction. Hr’g Tr. at 17:5–9, In re Application of Comm. on Judiciary, U.S. House of Representatives, for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-5288 (D.C. Cir.). And, indeed, DOJ did Howell’s jurisdiction to consider the House’s any of the position hearings how challenge Chief Judge in any of its briefs or during in front of either the District Court or the Circuit. But if DOJ’s is that the federal courts have the concerning application not authority the House’s contested request for to entertain a legal claim allegedly privileged grand jury materials, can it be heard to argue, nearly simultaneously, that the instant Court has no jurisdiction committee’s to entertain a legal claim concerning the subpoena compelling the Both of these requests for information context of ongoing testimony of a House of senior-level presidential aides? were made investigations. Compare enforceability by the Judiciary Committee in the DOJ Stay Br. at 10, with In re Application for Grand Jury Materials, 2019 WL 5485221, at *28, and Mazars, 940 F.3d at 714. And any differences between the instant appear to relate simply arguments regarding case and the case on appeal before the Circuit and solely to the merits of the the enforceability parties’ respective legal of the House’s mandate that the information be 59 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 62 of 120 disclosed.16 Such differences have nothing to do with the threshold question of the court’s constitutional power to entertain the House’s legal claim that it is entitled to access the requested (or subpoenaed) information over the Executive branch’s objection; therefore, one would expect that DOJ’s jurisdictional position would not vary. 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 If the point of DOJ’s historical practice arguments is to emphasize that, for centuries, significant inter-branch conflicts have, in fact, been resolved without the need for court involvement (and thereby place its marker on the seemingly radical notion that the federal courts do not have the constitutional authority to resolve any direct dispute between the Executive and the Legislature (see, e.g., Hr’g Tr. at 60:18)), then DOJ must contend with, and somehow reconcile, the fact that the federal courts have adjudicated disputes that impact the divergent interests of the other branches of government for centuries. See, e.g., Ex parte Merryman, 17 F. Cas. 144, 148 (C.C.D. Md. 1861) (Taney, C.J.) (holding that Congress, and not the President, can suspend the writ of habeas corpus); see also Bowsher v. Synar, 478 U.S. 714 (1986) (evaluating whether Congress improperly assigned executive powers to the Comptroller General); Though the circumstances that have given rise to these two legal actions surely differ, there appear only two relevant distinctions between the legal claims that the Judiciary Committee is making in these two cases. In the In re Application for Grand Jury Materials litigation, the Committee’s purported right to the materials at issue (grand jury information) arguably derives both from its own Article I authority to conduct investigations pursuant to its impeachment powers, and also from the court’s limited authority to make exceptions to grand jury secrecy under Federal Rule of Criminal Procedure 6(e). See 2019 WL 5485221, at *11. Rule 6(e) is not a source of authority in the case at bar. In addition, the Committee’s grand jury document request concerns materials that are purportedly protected from disclosure under Rule 6(e), while, in the instant case, the President has invoked executive privilege on the grounds that McGahn has absolute testimonial immunity. Both of these distinctions pertain to the merits issues in these cases, not to the Court’s subject-matter jurisdiction. 16 to be 60 Case 1:19-cv-02379-KBJ Document 46 Chadha, branch 462 U.S. at 919 (considering deportation order); (“Throughout Filed 11/25/19 Page 63 of 120 whether the House could veto Nixon v. Sirica, 487 F.2d 700, 715 (D.C. an Executive Cir. 1973) our history, there have frequently been conflicts between independent organs of the federal government, as well as between the state and federal our constitutional When such conflicts arise in justiciable cases, means for resolving them—one other inconvenient facts: the Supreme Court.”). widely accepted governments. system provides a DOJ must also face at least two contentions that the Constitution of (1) the United States empowers each branch of the federal government to be a check upon the others, and (2) the Judiciary’s constitutional check is the power to tell the other branches what the law is. See Chada, 462 U.S. at 962–63; Marbury, 5 U.S. at 177. The the power to perform private citizens, Supreme Court has its constitutionally assigned Buckley, 424 U.S. at 121–23; never suggested that the Judiciary has function only when it speaks to or when it is called upon to resolve a legal dispute between a private citizen and one of the branches of government. And DOJ’s odd idea that federal courts’ indisputable power to adjudicate questions of law evaporates if the requested pronouncement of law happens to occur in the context of a dispute between branches appears nowhere in the annals of established constitutional law. To the contrary, the Framers spoke specifically an established rule of law to regulate government significance of the judicial function—when sustaining importance conduct—and, thus, they explained why the powers of government and includes checks crucial to to the a democracy: 61 of maintaining to the a system that separates on the exercise of government power is Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 64 of 120 [T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. The Federalist No. 51 (James Madison). The Framer’s specific reference to providing government officials in each of the separate branches with “the necessary constitutional means and personal motives to resist the encroachments of the others[,]” id., is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See 62 Case 1:19-cv-02379-KBJ Document 46 id. (“A dependence but experience Filed 11/25/19 on the people is, no doubt, the primary control on the government; has taught mankind the particularly displayed necessity of auxiliary precautions. the . . . We see it in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such check Page 65 of 120 a manner as that each may be a on the other that the private interest of every individual may be a sentinel over public rights.”). case that the separate and co-equal stature of the three branches of means that the Judiciary cannot comment on the lawfulness of other Nor is it the government branches’ conduct. Cf. Ex parte suspending Merryman, the writ of habeas corpus, “the 17 F. Cas. at 148 (holding that, by has exercised president does not possess under the Constitution,” and sending the ruling a power which he to the President “in to enforce the order that he might perform obedience”); see also Marbury, 5 U.S. at 177. In the seminal case of Buckley v. Valeo, 424 U.S. 1(1976), the Philadelphia his constitutional Supreme separation laws, by securing Court further observed that, while “the in the summer of 1787 were who viewed the duty, of powers men who met in practical statesmen, experienced as a vital check against tyranny[,] in politics, . . . they saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself likewise effectively.” (“While that Id. at 121; see also Youngstown, 343 U.S. at 635 (Jackson, J., concurring) secure liberty, it also contemplates powers into a workable government. It enjoins the Constitution diffuses power to better practice will integrate the dispersed upon its branches separateness but interdependence, autonomy but where, as here, the Executive branch and the Legislature 63 reciprocity.”). And are at loggerheads over an Case 1:19-cv-02379-KBJ Document 46 issue of law that the courts loses its established likely important, authority to say what the law is seems implausible. It is far more separation-of-powers principles with respect to the judicial authority if not crucial, for the continued To the extent that Page 66 of 120 are well-equipped to decide, the notion that the Judiciary that the better view of constitutional deem the exercise of Filed 11/25/19 functioning dispute is that they at issue even more of the government. more recent case law could be read to cast doubt on this Court’s conclusion that the federal courts have the constitutional power to adjudicate legal disputes 36), between the it is worth conceptions binding that such noting of the true and the Executive branch cases actually (see comport quite well separation-of-powers problems Def. Mem. at 32– with the Framers’ discussed above. For example, case law rightly indicates that federal courts do overstep the bounds of their authority actually Legislature if they entertain a claim in a involve a question concurring) (explaining of law. See that judicial a dispute calls for decisionmaking separation-of-powers dispute Zivotosfy, 132 S. Ct. at 1432 (Sotomayor, J., forbearance is required in “circumstances in which beyond violation if the between the other branches that does not courts’ competence”). Likewise, Judiciary proceeds there is a when the Constitution itself expressly vests the power in another branch of government to decide the issue in question. See id. at 1431 (“When a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department . . . abstention is see also, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that a claim regarding the validity of a warranted because the court lacks authority to resolve that issue.”); Senate impeachment rule was non-justiciable because the Constitution vests the Senate with the sole power to try impeachments). In these narrow circumstances, the 64 Judiciary Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 67 of 120 plainly transgresses the boundaries of its constitutional authority, either because it has entertained a claim that does not raise a legal issue and thus was never in its province to decide, or because it has undertaken to decide certain claims despite a direct constitutional command to desist. Neither is the case with respect to the subpoenaenforcement claims at issue here, as the Court’s previous discussion plainly establishes. (See supra Part IV.A.2.a.)17 The bottom line is this: even when the question of this Court’s constitutional authority to entertain the Judiciary Committee’s subpoena-enforcement claim is viewed through the rose-colored lenses of DOJ’s separation-of-powers filter, history and past practice plainly support judicial resolution of stalemates between the Legislature and the Executive branch with respect to the rights that the law establishes and the duties that the law imposes. The Framers carefully crafted a constitutional scheme that contained institutional checks over the exercise of the powers they had divided, and thus implicitly endorsed the exercise of authority by the branch that was vested with power to break a legal stalemate (and, indeed, without judicial resolution, how else The Court finds it noteworthy that DOJ does not provide a single authority that actually stands for the proposition that the Constitution is violated whenever the federal courts entertain any kind of dispute between the Legislature and the Executive branch. (See Hr’g Tr. at 60:18.) DOJ’s argument in this regard appears to rely the position that the Executive branch would be inappropriately rendered subordinate to the other two branches of government if the Legislature can file suit against the Executive branch in court. (See id. 68:1–10.) But in the absence of a case that stands for this proposition, it seems a better view of the Executive’s predicament is that, if anything, all of the branches are equal in that all are subordinate to the law, and the courts are only the messengers, to the extent that the Judiciary has the power to determine what the law is. See Richard H. Fallon, Jr., Executive Power and the Political Constitution, 2007 Utah L. Rev. 1, 17 (2007) (“[I]t is arguable that the power to decide cases necessarily implies the power to decide them authoritatively, and authority in some cases depends on executive obedience.”). To find otherwise is to flout what is unquestionably the most significant tenet that exists in our system of government: that each branch of the federal government has limited power under the Constitution, and that no one, not even the head of the Executive branch, is above the law. DOJ’s insistence that the Judiciary does not have the power to declare the law in the context of an inter-branch legal dispute cannot be easily squared with acceptance of these universal constitutional maxims. 17 65 Case 1:19-cv-02379-KBJ Document 46 would an impasse between the process be congressional forbearance Legislature and Executive branch resolved?). Thus, courts to proceed to resolve the instant Page 68 of 120 concerning compelled in this Court’s view, rather than demanding the courts, separation-of-powers by Filed 11/25/19 principles legal impasse instead require the federal so that the other branches of government can function. Put another way, the Framers made clear that the proper functioning of a federal government that is consistent with the preservation of constitutional rights hinges just as much on the intersectionality of the branches as it does on their separation, adjudicatory power prescribed to them under the Constitution’s framework to address the disputed legal and it is the but to but, by the exercise of Judiciary resulting to exercise the friction. See Myers v. (1926) (Brandeis, J., dissenting) (“The of powers was adopted preclude role of the issues that are spawned from the United States, 272 U.S. 52, 293 separation assigned by the arbitrary doctrine of the convention of 1787 not to promote efficiency power. The purpose was not to avoid friction, means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from B. autocracy.”) House Committees Have The Power To Enforce Their Subpoenas In Federal Court When Executive Branch Officials Do Not Respond As Required For all its talk about the limited authority of the Judiciary and the under the Constitution, DOJ does not appear to contest the fact that duly Legislature authorized committees of Congress have the power under Article I to issue enforceable legislative subpoenas—in the sense that, when a House committee issues an authorized legislative subpoena in the context of a congressional investigation, 66 that act gives rise to a legal Case 1:19-cv-02379-KBJ Document 46 right to compel the recipient’s performance.18 Filed 11/25/19 Consequently, Page 69 of 120 and importantly, the constitutional arguments that DOJ has made in the context of this case pertain solely to its view that the Judiciary Committee lacks the authority to enforce its valid legislative subpoenas in federal court. (See, e.g., Def.’s Mot. at 36–40, 52–56.) Here, as in Miers, DOJ attempts to shoehorn its emasculating effort to keep House committees from turning to the courts as a means of vindicating their constitutional interests into various categories of established legal arguments, some of which overlap substantially with jurisdictional contentions that the Court has already considered and rejected. (See, e.g., id. at 36–40 (arguing that the Judiciary Committee lacks standing because it has not articulated a concrete and particularized injury).) In the discussion that follows, this Court focuses, in particular, on DOJ’s contention that a House committee does not suffer a cognizable injury for standing purposes when a subpoenaed Executive branch official fails to appear for the scheduled testimony (id. at 36–40), and that, in any event, such committee has no cause of action to proceed in federal court the Judiciary (id. at 52–56). As the Court explains, these arguments about Committee’s inability to bring its legal claims in federal court cannot be assesses the type of injury that the Judiciary Committee alleges for standing purposes, or with the fact that filing a lawsuit is the most common, and least intrusive, means of vindicating the Committee’s thwarted investigation rights. The Court also rejects DOJ’s broader assertion that, even if the Judiciary Committee has an injury in fact and a cause of action to proceed in federal reconciled with how the law ordinarily Of course, any protestation would be futile, since this broad power of Congress is See, e.g., McGrain, 273 U.S. at 174; Mazars, 940 F.3d at 722–23. 18 67 well established. Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 70 of 120 court, constitutional separation-of-powers principles prevent the Committee from doing so. 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 With respect to the Judiciary Committee’s alleged lack of Article III standing to bring its subpoena-enforcement claims in federal court, DOJ maintains that “the Committee fails to state a cognizable injury[.]” (Def.’s Mot. at 36.)19 In this regard, DOJ insists that the Committee’s allegation that “McGahn’s failure to comply with its subpoena for his testimony deprives it of ‘information to which it is entitled’” is not enough to give rise to Article III standing (id. at 37 (quoting Pl.’s Mem. at 22, 37)), because “Congress has no cognizable institutional interest in obtaining information for its own sake” (id.). It also asserts that, other than this non-cognizable “freestanding right to information[,]” the Judiciary Committee has only asserted the kinds of abstract injuries that the Supreme Court has found to be insufficient to support standing in cases like Raines v. Byrd, 521 U.S. 811 (1997). (Def.’s Mot. at 37–38; see also id. (declaring that the Judiciary Committee’s stake in the instant litigation is “deficient” for standing purposes because “[t]he sole injury arguably stated by the Committee is a theoretical impairment of the House’s ability to evaluate proposed articles of impeachment; “Because Article III limits the constitutional role of the federal judiciary to resolving cases and a showing of standing is an essential and unchanging predicate to any exercise of our jurisdiction.” Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (internal quotation marks and citations omitted); see also Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (“To ensure that the Federal Judiciary respects the proper—and properly limited—role of the courts in a democratic society, a plaintiff may not invoke federal-court jurisdiction unless he can show a personal stake in the outcome of the controversy.”) (internal quotation marks and citations omitted). And one of the requirements to demonstrate Article III standing is that “the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted). 19 controversies, 68 Case 1:19-cv-02379-KBJ Document 46 proposed legislation concerning election and the to protect the of adequacy by the Special safeguards Filed 11/25/19 security, campaign finance, integrity counsel to other components of the purportedly implicating Page 71of 120 the Committee’s of and other issues; investigatory Department matters referred of Justice (a matter ‘oversight’ responsibilities)” (citations omitted)).) The first that surfaces when puzzle cognizable injury” argument one undertakes to assess DOJ’s “no is how this contention accounts for the fact that in-fact for Article III standing purposes is all but assumed in the enforcement myriad subpoena- cases that are filed in federal courts with respect to civil actions every day. The harm claimed a by presumptively provides Judiciary an injury- private litigant when his subpoenas are rebuffed, which almost a sufficient stake to support his standing, and the injury that the Committee claims here is not different in kind. Yet this Court could not find a single case in which the concreteness or particularity of the injury alleged by a private subpoena judge issuer was effectively has ever held that defiance of a valid particularized injury this challenged. as this Court can tell, no federal subpoena does not amount to a concrete and in fact; indeed, it appears that no court has ever even considered And proposition. As far perhaps for good reason: if defiance of duly issued subpoenas does not create Article III standing and does not open the doors of the court for enforcement purposes, it is hard to criminal justice could Consequently, prosecutor’s right injury. See, see how the wheels of our system of civil and keep turning. some courts have concluded that even the simple impairment of a to issue a subpoena e.g., United States in the first place is enough to cause a cognizable v. Colo. Supreme Court, 87 F.3d 1161, 1165 (10th Cir. 69 Case 1:19-cv-02379-KBJ Document 46 a concrete, particularized, and actual 1996) (finding requires prosecutors attorney Filed 11/25/19 to obtain judicial approval where a Colorado ethics rule of any subpoena that seeks to compel (reaching the same conclusion with to similar New Mexico ethics rule), cert. denied, 138 S. Ct. 130 (2017). And the D.C. Circuit implicitly suggested compliance by subpoena that interference with an agency’s to compel right is an injury that must be remedied, at least in the administrative context, when it held that courts “must enforce” long an to testify before a grand jury about a client); see also United States v. Supreme Court of N.M., 839 F.3d 888, 899 (10th Cir. 2016) respect injury Page 72 of 120 an agency’s subpoena so as “‘the inquiry is within the authority of the agency, the demand is not too indefinite[,] and the information sought is reasonably relevant.’” Resolution Tr. Corp. v. Thornton, 41 F.3d 1539, 1544 (D.C. Cir. 1994) (quoting United States v. Morton Salt Co., 338 U.S. 632, 652 prosecutorial subpoenas but to recognize administrative (1950)). is a cognizable duly it would seem that the law is sufficiently clear that issued subpoena, including Committee issued to McGahn, qualifies for standing inflicted the subpoena that the outright Judiciary as a concrete, particularized, and actual injury purposes. This is not to suggest experiences no choice Article III injury, and if courts have Article III standing for those who seek to enforce reasonable subpoenas, defiance of any If the creation of hurdles to the issuance of an equivalence between the harm that a private when his subpoena rights on a committee of Congress litigant are thwarted, on the one hand, and the harm when a recipient of a legislative subpoena that is issued in the context of a congressional While the nature of the injury—i.e., investigation the denial of the 70 defies its mandates, right to compel on the other. performance—is Case 1:19-cv-02379-KBJ Document 46 similarly actual and concrete, the is an order of magnitude Supreme Filed 11/25/19 Court has suggested that the degree of harm different. This is because, under is empowered to issue Page 73 of 120 our constitutional in order to conduct the scheme, the Legislature that are necessary to perform its crucial functions of enacting legislation and overseeing the operations subpoenas of government, not to further its own private interests. See Watkins, 354 U.S. at 187, 200. In this regard, the Supreme Court has long held that deemed to “possess[] institutions of the general government or by corruption.” Thus, Article I to the House of by Congress must be every other power essential to preserve the departments and force threatened investigations from impairment Burroughs or destruction, whether v. United States, 290 U.S. 534, 545 (1934). U.S. Const. art. I, § 2, cl. 5, and it also vests Impeachment”, “[a]ll legislative Powers,” “power of delegate to their respective of the the “sole Power of Congress the Congress the 273 U.S. at 174, which the House and the Senate may committees and subcommittees, and this power is an legislative and impeachment authority. Eastland, see also Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 499 (1977). Supreme as a whole with U.S. Const. art. I, § 1. Moreover, it grants to inquiry[,]” McGrain, “integral part” Representatives assigns 421 U.S. at 505; Additionally, the Court has recognized that “where the legislative body does not itself possess requisite information—which not infrequently is true—recourse must be had to others who do possess it.” McGrain, 273 U.S. at 175. It specifically observed that “[e]xperience has taught that mere requests for such information often and also that information which is volunteered is not 71 always are unavailing, accurate or complete; so Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 74 of 120 some means of compulsion are essential to obtain what is needed.” Eastland, 421 U.S. at 504–05. The law also plainly establishes that one of these means of compulsion—known as “the subpoena power”—“may be exercised by a committee acting . . . on behalf of one of the Houses.” Id. at 505.20 And with respect to the duty that a recipient of such a subpoena has to perform as Congress has demanded, the Supreme Court has specifically noted that “[a] subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase.” Bryan, 339 U.S. at 331. “If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity.” Id. (emphasis added). For present purposes, all this means is that, when a committee of Congress seeks testimony and records by issuing a valid subpoena in the context of a duly authorized investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its own interest, but for the benefit of the People of the United States. If there is fraud or abuse or waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and, as necessary,take corrective action. Conducting investigations is the means that Congress uses to carry out that constitutional Thus, the “particularized” injury requirement, Lujan, 504 U.S. at 560, is satisfied. Pursuant to the House of Representative’s authority to “determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, the House has empowered the Judiciary Committee to “conduct at any time such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities,” House Rule XI.1(b)(1). Moreover, the Judiciary Committee has been authorized “to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary.” House Rule XI.2(m)(1)(B). The Judiciary Committee alleges that the McGahn subpoena was issued pursuant to this authority. (See Compl. ¶¶ 71–72.) Therefore, his defiance of the Committee’s subpoena, “affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. It is the House of Representative’s particular constitutional rights, privileges, and duties that are being denied. 20 72 Case 1:19-cv-02379-KBJ Document 46 obligation. Thus, blatant defiance of Congress’ Filed 11/25/19 Page 75 of 120 centuries-old power to compel the performance of witnesses is not an abstract injury, nor is it a mere banal insult to our democracy. It is an affront to the mechanism for Framers carefully crafted for our actually abuses of power that the curbing protection, and, thereby, undermine the broader interests of the People recalcitrant witnesses of the United States. Thus, DOJ’s hand-waving over the Judiciary Committee’s purported failure to establish a “cognizable” injury for standing purposes (Def.’s Mot. at 36–40) masks the substantial harm that results from an Executive branch official’s defiance of a subpoena. But it is hard to interference with Congress’ Executive branch for the imagine ability protection a more significant congressional wound than such alleged to detect and deter abuses of power within the of the People of the United States. Here, the Judiciary Committee has filed a complaint that alleges that the Committee was dutifully attempting to fulfill its constitutional duties when it issued a subpoena to former White House Counsel Donald F. McGahn II. ¶ 1.) According by President (See, e.g., Compl. to the Committee, it opened an investigation into potential misconduct Trump and his associates on March 4, 2019 investigation allegedly took on a new dimension after issued his report.21 The Judiciary (see Special id. ¶ 57), and its Counsel Robert Mueller Committee further alleges that it has not been able to According to the Committee, the Mueller Report found that “‘[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion’” (Compl. ¶ 1 (quoting Mueller Report Vol. 1at 1)); that this interference was “intended to benefit the Trump Presidential campaign” (id. ¶ 26 (citing Mueller Report Vol. 1 at 1)); and that President Trump “repeatedly attempted to shut down the investigation into Russia’s interference in America’s 2016 election and to conceal his own involvement and potential misconduct from the public” (id. ¶ 32). The truth or falsity of the Mueller Report’s findings and conclusions is immaterial to the present legal action, and neither party suggests otherwise. (See Pl.’s Stmt. of Facts at 3 n.1 (“In paragraphs 6-68, the Judiciary Committee does not recount information included in the Report to establish the truth of the matters asserted. Rather, the Committee relays what the Special Counsel has told Congress and the American people in order to explain the basis for the Committee’s investigation.”); see also Def.’s Resp. to Pl.’s Stmt. of Facts, 21 73 Case 1:19-cv-02379-KBJ Document 46 complete its mission of getting chronicled in the Mueller [Committee’s] impeachment and its related acts of obstruction of Page 76 of 120 to the bottom of the facts and circumstances that are Report, partly witness in the Filed 11/25/19 because McGahn “is the most important fact consideration of whether to recommend articles of investigation of misconduct described in the justice Special by the President, including Counsel’s Report” (id. ¶ 97), and McGahn has refused to appear before the Committee to provide his testimony, at President Trump’s direction (see id. ¶¶ 1, 7.) the Committee requests Consequently, that this Court “declare that McGahn’s refusal to appear before the Committee in response to the subpoena issued to him” is unlawful, and that it “issue requiring McGahn to appear forthwith before the Committee[.]” With respect to its evaluation of the injury allegations, sufficiency of the a heightened true). Furthermore, although evidentiary the as true. See Lujan, and must be accepted standard made in the context of cross-motions of summary applies standing see id.; see also judgment, (D.C. to as Cir. 2015), the Committee has submitted affidavits and exhibits to substantiate their allegations Decl.), Committee’s Judiciary allegations Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 Judiciary at 53.) pleading stage, allegations regarding standing are treated in the same manner as all other factual arguments (Compl. this Court must accept these statements of fact 504 U.S. at 561 (explaining that, at the an injunction that McGahn has impeded their investigation (see and DOJ does not appear to contest that the Muller findings that the Judiciary Committee alleges, Berke Decl; Tatelman Report did, in fact, contain or that the Committee has, in fact, ECF No. 32-2, ¶¶ 6–68 (maintaining that the Mueller Report itself provides the “complete and accurate statement of its contents” and that the Judiciary Committee’s recitation of its contents “is not a material fact under Fed. R. Civ. P. 56(c)”). 74 Case 1:19-cv-02379-KBJ Document 46 undertaken an investigation to evaluate the Filed 11/25/19 Report’s Page 77 of 120 claims (see Def.’s Resp. to Pl.’s Stmt. of Facts, ¶¶ 6–68, 75–76). Moreover, for the purpose of determining whether the Judiciary Committee has alleged a sufficient injury-in-fact to generate a concrete interest in the outcome of this has access to many, if not all, of litigation, it is irrelevant that the Committee McGahn’s sworn statements on this issue (McGahn’s interviews are referenced already nor does it matter that the Committee might be able to find out what it seeks to get from McGahn in some in the text of the Mueller repeatedly other fashion the Congress, (see, Report (see Compl. ¶¶ 34–51)), e.g., Def.’s Mot. at 79–80). This is because, Judiciary Committee has the “broad power” under Article I of the Constitution to conduct its investigations however it upon the constitutional impinge as a committee of rights sees fit, so long as it does not of those it undertakes to question. Watkins, 354 avers that, among other things, it wants U.S. at 198–99. And, here, the Committee McGahn to appear in person to testify about the events in question Committee can evaluate his credibility. (See Pl.’s Mem. at 27 “McGahn’s testimony is particularly important because, directed McGahn to defy extensive to discredit the campaign credibility, alleged at 60; Hr’g Tr. at Special situated that the President has waged an Counsel’s investigation, impugn McGahn’s 10:21–11:17.) injury (asserting even as President Trump has (citation omitted); What matters from the the Committee’s Article III standing is that the an actual and concrete similarly subpoena, and deny McGahn’s account of the facts” 28; Pl.’s Reply evaluating the Committee’s so that the Judiciary see also id. 27– standpoint of Committee has to its right to compel information (like any other subpoena-issuing plaintiff), 75 that is traceable to McGahn’s defiance at Case 1:19-cv-02379-KBJ Document 46 the Executive branch’s behest, and that this by an redressable order of this Court that Filed 11/25/19 alleged Page 78 of 120 violation of its interests is fully McGahn to appear and testify. requires Of course, to describe the grave injury that defiance of congressional subpoena inflicts on a committee of Congress States) is to demonstrate on the Raines case is misplaced. DOJ’s reliance why Def.’s Mot. at 36–40.) In Raines, six members of Line Item Veto Act filed suit on the People of the United (and, by extension, seeking Congress a declaratory judgment who had voted (See against the was that the Act, which enacted and signed into law, was unconstitutional. Raines, 521 U.S. at 814–17. The plaintiffs claimed that institutional injury they had been injured legislative power[,]” by the possible id. at 826, which is a than the harm to established constitutional Moreover, the members of Congress they specifically affected the entire institution of And rather than legislation, the “alter[ing] the and citation Congress different type of investigatory rights at issue here. generalized injury; was the “loss of a in fact, political power” “not the loss of any private right.” that Id. at 821. pointing to a concrete harm that resulted from enactment of the plaintiffs claimed that the Line Item Veto Act had injured them legal and practical effect of [their] votes.” Id. at 836 omitted). The Supreme sue under those circumstances Judiciary completely in Raines invoked a declared that their injury future “dilution of Court’s conclusion that there is, thus, entirely inapposite (quotation by marks was no standing to to the claims that the Committee brings today. See also Mnuchin, 379 F. Supp. 3d at 17–18 that “informational injuries to Congress arise ‘primarily cases,’ which hold that the legislature ‘has standing 76 (noting in subpoena enforcement to assert its investigatory power.’” Case 1:19-cv-02379-KBJ Document 46 (quoting U.S. House of Representatives v. Filed 11/25/19 Page 79 of 120 U.S. Dep’t of Commerce, 11F. Supp. 2d 76 (D.D.C. 1998)).22 2. The Constitution Itself Provides A Cause Of Action For A Thwarted House Committee To Proceed In Federal Court The next purported barrier to the Judiciary Committee’s ability to enforce its subpoenas by filing a legal action in federal court is DOJ’s suggestion that the Judiciary Committee lacks a cause of action to do so. It is clear that all litigants who bring their claims to federal court for review must have a right to be there. In this regard, DOJ asserts that, unlike the Federal Rules of Civil Procedure that expressly authorize a person with a pending case to initiate a separate action in the district where compliance with a subpoena is required, see Fed. R. Civ. P. 45(g), there is no such provision with respect to the enforcement of legislative subpoenas. (Def.’s Mot. at 43.) This argument is unavailing because, as Judge Bates recognized in Miers, Article I of the Constitution is all the cause that a committee of Congress needs to seek a judicial declaration from the court regarding the validity and enforceability of a subpoena that it has allegedly issued in furtherance of its constitutional power of inquiry. Miers, 558 F. Supp. 2d at 94; see also Holder, 979 F. Supp. 2d at 22. This is because the Supreme Court has long recognized that the Legislative branch is not only DOJ’s appeal to Walker v. Cheney is also unavailing. In Walker, the Comptroller General requested certain information from the Vice President on behalf of four Senators. 230 F. Supp. 2d at 57–58. The Comptroller General sought to obtain withheld documents in order to “aid Congress in considering proposed legislation.” Id. at 66–67. But, the district court held, the alleged injury to the House’s “general interests in legislating and oversight” was “too vague and amorphous to confer standing.” That was because Congress itself had “undertaken no effort to obtain the documents at issue, . . . no committee had requested the documents, and no congressional subpoena ha[d] been issued.” Id. at 67– 68. In addition, “the Comptroller General here has not been expressly authorized by Congress to represent its interests in this lawsuit.” Id. Hence, “an injury with respect to any congressional right to information remain[ed] wholly conjectural or hypothetical.” Id. (internal citations and quotations 22 omitted). 77 Case 1:19-cv-02379-KBJ Document 46 vested with the broad power to conduct investigative power.” Miers, observations about the Part via investigation Congress has, process, information that those subpoenas will Importantly, creates that “the power of it is the precedent Oversight to the 558 F. Supp. 2d and proceed with an responsive id. Congress’s right authority inquiry—with legislative of this district, to conduct to enforce its investigations Supreme in the first Court stated process to enforce it—is an essential function.” McGrain, 273 U.S. at 174. Thus, as established in both Miers and in Committee on & Government Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), that the powers provided to Congress in Article I of the Constitution to further an investigation Holder, supra Court’s analysis of the Legislature’s Article I Supreme auxiliary generally (see rights,” Miers, In McGrain v. Daugherty, 273 U.S. 135 (1927), the and appropriate “right yield[,]” more creates a legal right to the power confirms that a committee of unequivocally with that Congress’s investigative ‘power,’ subpoenas Congress is intrinsic to its constitutional subpoenas place. the compliance of subpoena power its power to issue compulsory under Article I of the to compel that “[t]he exercise of “by utilizing Page 80 of 120 558 F. Supp. 2d at 90. Consistent with this Court’s which the Executive concedes that at 91, and that right legal significance III.C), Miers explains investigative investigations but it also has “an implied Constitution, Filed 11/25/19 by issuing subpoenas and necessarily enforcing include the them in court[.]” 979 F. Supp. 2d at 22. Past precedents also not expressly mention the power in court dispose right of DOJ’s contention that just because Article I does of a committee of Congress to enforce its subpoena means that the courts are now implying that the Constitution contains 78 Case 1:19-cv-02379-KBJ Document 46 such in a manner that contravenes what the right Filed 11/25/19 Page 81of 120 Court has said about implied Supreme causes of action. The Constitution also does not explicitly convey to Congress the specific right to conduct investigations (i.e., of and yet, the Supreme inquiry”), “legislative what the Supreme Court found that such power is intrinsic to the Power” that Article I expressly conveys to Congress. U.S. 204, 230 (1821). So it is here. As explained in Anderson in the whole of [the Constitution], not expressed, but vital to their conclusion enforce it—is McGrain, here for (repeated constitutional v. Dunn, “[t]here is not auxiliary seriously is clearly discernible to the inquiry—with process to legislative function[,]” maintain that the power to enforce rights. It also cannot be seriously as the primary means through which may be enforced’” Miers, 558 F. Supp. 2d at 88 (alternations Davis v. Passman, 442 U.S. 228, 242 347 U.S. 497 seeking equitable alleged v. Dunn, 19 which does not draw after it others, that “the power of emphasis) Anderson id. at 225–26. And in light of McGrain’s exercise[.]” is not among these intrinsic judiciary rights omitted) (quoting suit grant of powers 273 U.S. at 174, DOJ cannot debated that “‘the Sharpe, a an essential and appropriate legislative subpoenas Court calls “the power (1954) (finding relief 15 (1933) (permitting a plaintiff to see also Bolling v. that the district court had erred in dismissing brought directly race discrimination in school (1979)); under the Fifth Amendment, based admissions); bring suit Jacobs directly on v. United States, 290 U.S. 13, under the Fifth Amendment based on allegations that the United States had taken his property for public use without compensation). Thus, also show that a just DOJ’s strident contention that “the [Judiciary] Committee must Congress has authorized a cause of action to litigate the Committee’s 79 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 82 of 120 claimed right to compel Mr. McGahn’s testimony” (Def.’s Mot. at 52) is plainly meritless.23 If Congress does somehow need a statute to authorize it to file a lawsuit to enforce its subpoenas in vindication of its thwarted constitutional rights (for the reasons explained above, it does not), then the Declaratory Judgment Act plainly serves that purpose, as both Judge Bates and Judge Amy Berman Jackson have previously found, in parallel contexts. See Miers, 558 F. Supp. 2d at 78–88; Holder, 979 F. Supp. 2d at 22. This Court, too, concludes that the Judiciary Committee has satisfied the three established elements for seeking a declaration of rights under this statute: (1) it has established “a case of actual controversy”; (2) it has invoked an “independent basis for federal jurisdiction”; and (3) it has filed an “appropriate pleading.” Miers, 558 F. Supp. 2d at 79 (internal quotation marks and citation omitted); see also id. at 81–82 (holding that where the Constitution creates a right, a plaintiff can use the Declaratory Judgment Act to vindicate that right); Holder, 979 F. Supp. 2d at 22 (finding that the House 23 Reed v. County Commissioners of Delaware County, Pa., 277 U.S. 376 (1928), which DOJ cites here, is not to the contrary. DOJ characterizes that opinion as holding “that a committee’s power to issue subpoenas does not itself include the power to bring suit to enforce a subpoena in federal court” (see Def.’s Mot. at 52), but coming just months after the Court had held in McGrain that legislative subpoenas are an enforceable right of Congress, and given that Reed involved individual Senators who had filed suit to compel compliance with a Senate subpoena under circumstances in which those individual plaintiffs had not been authorized to sue on behalf of Congress, it is stretch to interpret the Supreme Court’s statement that the suit was not “authorized by law” to stand for the proposition that, if Congress authorizes a committee to file a subpoena-enforcement lawsuit, that committee still has no cause of action to sue. Similarly unavailing is DOJ’s reliance on Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) and Ziglar v. Abbassi, 137 S. Ct. 1843 (2017). (See Def.’s Mot. at 53.) Both of those cases involved inferring private rights of actions for damages for violations of constitutional rights under Bivens v. Six Unkown Fed. Narcotics Agents, 403 U.S. 388 (1971), an area in which the Supreme Court has traditionally urged particular caution and deference to Congress, based on separation of powers concerns. See Jesner, 138 S. Ct. at 1402 (finding that courts must defer to Congress regarding the creation of a damages remedy “if there are sound reasons to think Congress might doubt the efficacy or necessity” of such a remedy). No such concerns are present here—indeed far from it— because the Constitution conveys (and thus necessarily endorses) the power of inquiry, and Judiciary Committee seeks only declaration and an injunction to vindicate its constitutional rights. See Miers, 558 F. Supp. 2d at 89 (“This is not a damages action. Thus, Bivens and its progeny are not strictly on point.”). 80 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 83 of 120 Committee “is not looking to the Declaratory Judgment Act as the source of the right it is seeking to vindicate in this Court, but rather as the source of the mechanism to achieve the vindication of a right derived elsewhere”). That is all the law requires. 3. There Is No Separation-Of-Powers Impediment To The Judiciary Committee’s Seeking To Vindicate Its Rights In Federal Court DOJ’s final argument as to why a duly authorized committee of the House of Representatives cannot be permitted to file a subpoena-enforcement lawsuit in federal court, even though ordinary civil litigants generally have unfettered access to the federal courts for this purpose, relies on a reassertion of constitutional separation-ofpowers principles. (See Def.’s Mot. at 40–43.) separation-of-powers-based Supp. 3d Judge Bates soundly rejected DOJ’s lack of standing arguments in Miers. See Miers, 558 F. at 95–99. This Court further addresses most of the conceptual problems with DOJ’s arguments restricting the power of the courts to review a claim brought by a House committee against the Executive branch elsewhere in this Memorandum Opinion. (See supra Part IV.A.2.) In this section, the Court homes in on the obvious red flag that immediately appears with respect to even the most cursory review of DOJ’s arguments regarding the the lack of any reason why the Constitution should be construed to authority: command, or routinely constitutional limits of a House committee’s subpoena-enforcement even countenance, this result, especially when other subpoena issuers enlist the aid of the federal courts with respect to enforcing their mandates. (See Hr’g Tr. at 57:14–59:12.) Apparently undisturbed by Congress the manifest inequity of treating a committee of less favorably than a litigating private citizen when it comes to identifying the appropriate mechanisms for the vindication of established legal rights, DOJ’s brief 81 Case 1:19-cv-02379-KBJ Document 46 this ignores Hr’g (Court noting that “people say they they statute giving it the authority to do any of this” House doesn’t execute the laws” the power to provide the information are seeking to compel,” and then asking, “why is the House worse DOJ’s counsel responded, first, that “the House has off?”)), hearing (see can issue subpoenas and they can also come to court if the person who receives the subpoena doesn’t that Page 84 of 120 And when asked about it during the motions problem entirely. Tr. at 57:20–25 Filed 11/25/19 investigate Representatives by the (id. at 59:1). and to issue subpoenas never bothered to pass a (id. at 58:10–11), and, second, The first response is of that “the no moment, since is vested in the House of Constitution itself (see supra Part IV.B.2), and thus the Committee does not need a statute to have the authority to act in vindication Judiciary of its constitutional interests. The second point is likewise unavailing, because no one a private individual who is seeking to have its subpoenas enforced in court is executing laws. See Clinton v. Jones, 520 U.S. 681, 701 (1997) reasonably (finding claims that that “there is no suggestion that the Federal Judiciary is being asked to any function that asking might in some way be described as ‘executive.’ the courts to exercise their Respondent perform is merely core Article III jurisdiction to decide cases and controversies”). DOJ does little else to address this Court’s argument respect that the Constitution requires to seeking to have its subpoenas the concerns about the implications of its Judiciary Committee to go it alone with enforced, and thus, unlike other civil litigants, it cannot seek a court enforcement order. Nevertheless, DOJ is undaunted, and it seems to float three arguments concerning this issue. DOJ says (1) that the Judiciary Committee is not disadvantaged because it has other non-court options for 82 enforcing its Case 1:19-cv-02379-KBJ Document 46 subpoenas (see Def.’s Mem. at 41–42); (2) that, Filed 11/25/19 Page 85 of 120 regardless, history establishes that the is persuasive and precedential sue in court (see id. at 32–36); and (3) that there case law in this district that holds that a House committee has no standing to sue the Executive branch (see id. at 39.) For the Committee does not have the right to following reasons, none of these Judiciary Committee cannot proceed to press the legal claims it has brought in this arguments persuades this Court to conclude that the lawsuit. First of all, the fact that the its quiver to counter 3d at perceived also Hr’g the manipulation power[,]” Mnuchin, arrows in 379 F. Supp. of its appropriations power to starve resources as a sanction for contempt (see Def. Mem. at 42; see Tr. at 65:17–20)—and, therefore, “this lawsuit is not a last resort for the House[,]” Mnuchin, 379 F. Supp. 3d at 22, is irrelevant. The elements that courts must consider to determine whether (see Committee has “several political threats to its sphere of 22—including, apparently, the Executive branch of Judiciary supra n.19), a plaintiff has Article III standing are well established and they do not include a “last resort” requirement. To the extent that federal courts have exercised their equitable powers to stay their own consideration of matters that are otherwise they so in the relatively unusual circumstance in which the parties are on the brink of reaching a negotiated for judicial review, it appears that question doctrine; justiciability the latter ordinarily Court prescribed in Baker Zivotofsky, have done resolution of the conflict, see, e.g., AT & T I, 551 F.2d at 394, or in the context of evaluating the Supreme ripe of the plaintiff’s involves claim under the assessing political the series of factors that the v. Carr¸ 369 U.S. 186, 217 (1962), see also 132 S. Ct. at 1432 (Sotomayor, J., concurring) 83 (explaining that “the final Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 three Baker factors address circumstances in which prudence Page 86 of 120 may counsel against a an issue presented”). DOJ has disavowed the possibility that the parties here will settle (see Def.’s Accommodation Resp. at 2), and a quick review of its court’s resolution of briefs indicates that it has not engaged with the Baker factors at all. a thwarted House committee must eschew What is more, DOJ’s suggestion that the courts and, instead, must get rely the information that it needs” because (Hr’g appropriations” Tr. at 65:18–20) is nearly a in order “to practical nullity, an appropriations sanction for non-compliance with a legislative subpoena cannot be implemented testimony, swiftly enough allegedly to preserve the and it also cannot be achieved without the as well as the President whom the legal on its “power to withhold Judiciary utility of a defiant witness’s cooperation of the entire Committee is investigating and whose unlawful directive to his senior-level aides is the impetus for the Committee’s claims. It is also quite clear that if the House attempts an appropriations or if it utilizes its sometimes-mentioned inherent power to send the arrest the Congress contemptuous official, those “political arrows” legitimate separation-of-powers Sergeant are far more likely penalty, at Arms to to raise concerns than allowing the Judiciary Committee to file a civil action in federal court. DOJ’s second contention fares that there no better. As the Court explained above, the fact are few recorded instances in the history of our Nation in which Congress has filed a legal claim against the Executive branch in court to enforce its subpoena (see Def.’s Mot. at 34–35), goes to show, at most, that the such assistance Committee (see supra Part IV. A.2.b). It says nothing can avail itself of the opportunity to file a 84 Legislature legal has rarely needed about whether the action rights against Judiciary the Executive Case 1:19-cv-02379-KBJ Document 46 branch to protect offered a single case in which a principles. And, again, binding authority has embraced the under the Constitution, the House has no standing to branch in federal court despite cognizable injury-in-fact Page 87 of 120 of its Article I power of inquiry, against alleged transgressions consistent with well-established constitutional Filed 11/25/19 proceed again its satisfaction of the well-worn that is redressable in the court. (See DOJ has not proposition that, the Executive requirements supra of a n.19.) case that DOJ has offered that appears to provide direct support of this dubious legal proposition is a recent case from this district in which the court concluded The only that the House lacked standing to proceed in court with respect to its claim that the President’s declaration of a national emergency to procure violated the Appropriations Judiciary for the border wall Clause of the Constitution and the Administrative Procedures Act. See Mnuchin, 379 F. Supp. 3d at 12; about whether funding see also id. at 10 (“This is a case one chamber of Congress has the ‘constitutional means’ to in a political turf war with the President over the legislation.”). Notably, the Mnuchin case can be, and most implementation likely injury-in-fact standing requirement, a cognizable that only injury. the House’s Furthermore, at issue here. the Applying [preliminary injunction] in this satisfy the well- because the harm that it alleged was not standing analysis—injury the Court finds that the House has failed to deny of See id. at 13 (“The Administration concedes, and the Court agrees, the first prong of the particularized—is the should be, read to stand for the much more modest contention that the House had failed to established conscript regard, the Mnuchin that is concrete and ‘especially rigorous’ analysis required, allege such motion.” an injury. So the Court must (internal citation omitted)). case helpfully and specifically 85 distinguished Case 1:19-cv-02379-KBJ Document 46 “the supposed harm to Congress’ Congress’ Appropriations power[,]” well founded investigatory interests, Committee alleges in the instant holding Filed 11/25/19 Page 88 of 120 id. at 16, from the harm to id. at 17, which is what the case (see Pl’s Mem. at 34–35). But if the essential of Mnuchin is that “[t]he Committee lacks standing foremost because centuries of historical practice show that the injury the Committee claims is not deemed 32 capable of redress through judicial process[,]” Here is why. The assertion that historical a dispute on the capable Supreme of resolution (quoting Raines, (Def.’s Mem. at alone compels Legislature the conclusion is non-justiciable Court’s redressability reminder in Raines that a legally for standing purposes is an injury that has been “traditionally cognizable injury to be as DOJ suggests practice between the Executive branch and the appears to rest one traditionally then this Court believes its holding is erroneous. (citation omitted)), that Judiciary through 521 U.S. at Raines “teaches that in 826).) evaluating the judicial process.” (See thought Def.’s Mem. at 33 DOJ argues (and Mnuchin appears to accept) that whether a suit between the political Branches is a federal court must evaluate whether such a suit is consistent with historical practice.” (Def.’s Mem. at 32.) A review of Supreme Court case law in the justiciable, more than two decades since Raines was decided casts doubt on DOJ’s conclusion that Raines’s historical overview was the primary determinant of the Supreme Court’s holding there that the cognizable injury. patently amorphous But even if Raines harm that the implicitly traditional Article III standing criteria to include plaintiff’s injury is assessed for the purpose of view, that element plaintiffs amended the had alleged Supreme was not a Court’s an historical-practice element when a determining standing, in this Court’s cannot be satisfied based solely on the fact that there are few 86 Case 1:19-cv-02379-KBJ Document 46 recorded above, cases in which that particular Page 89 of 120 was previously claimed. As demonstrated a dearth of similar case law could just as easily be interpreted to mean that the political branches have disputes, and thus have avoided Legislature concerning the lack of prior been able to find other typically the historical record shows that legal injury Filed 11/25/19 litigation. (See disputes the claimed acceptable ways to resolve their Part IV.A.2.b.) In other words, where between the Executive branch and the injury are typically resolved through negotiation, cases says nothing about the capability of resolving those kinds of issues in the courts. This Court also notes, as a general matter, that the utility of history depends on an assumption that the terms and conditions of the “battle” between the political branches now are the same as those that gave rise to similar disputes in the past. However, we are at a point in history in which the Executive branch appears to be categorically rejecting once-accepted Judicial branch authority; therefore, and standard federal courts novel exercises of Executive power that allegedly applications are being of and Legislative called upon to evaluate threaten the prerogatives of the other branches of government in unique ways. See, e.g., Def.’s Mem. in Opp’n to the Mot. for Prelim. Inj., Make the Road N.Y. v. McAleenan, No. 19-cv-2369 (characterizing the Administrative Procedure Act arguing for statutorily required remedy as a “nationwide a procedural (D.D.C.), violation of the injunction” and, having that that courts cannot invalidate unlawful agency rules in their Paso Cty. v. Trump, No. 19-cv-66, 2019 WL 5092396 (rejecting the Executive branch argument that construction from transferring congressional appropriations 87 (W.D. at 75 done so, entirety); El Tex. Oct. 11, 2019) funds for border wall made for other purposes is lawful); City Case 1:19-cv-02379-KBJ Document 46 (June 24, 2019) (holding that Executive branch law enforcement grant because the required greater renders of City authority granted limits the lessons that unpersuasive to the DOJ’s assertion that, based perceived throughout history Attorney General by unprecedented regularly nature of the on the branches’ in the present challenged supra Part issues. (See that the Judiciary lawsuit seeking that III.B.) prior track record view, the fact that day actually actions and legal Judiciary says positions more about the of the Executive Committee’s claim history, or harm. and it consists courts have rendered with respect to similar In this regard, the Miers case persuasively legal determined Committee had Article III standing to file a subpoena-enforcement to vindicate its investigatory interests when a former White House Counsel refused to appear for testimony as directed. See 78. And that case further noted that “the institution, such lengthy norms that are being brought to In any event, the federal courts have their own recorded rulings This have not had occasion to address the kinds of branch than it does about the nature of the of the precedential Congress). Committee should be deemed to lack threats to constitutional and procedural federal courts’ attention a congressional on matters of immigration to protect its vital interests in the courts. In this Court’s federal courts of can properly be drawn from history. It also negotiated resolutions, today’s Judiciary standing withholding failed to comply with certain conditions that coordination with federal officials enforcement exceeded the reality plainly Page 90 of 120 v. Attorney Gen. of United States, 916 F.3d 276 (3d Cir. 2019), reh’g of Philadelphia denied Filed 11/25/19 [Supreme] Miers, 558 Court has F. Supp. 2d at 68– never held that an as the House of Representatives, cannot file a suit to address an institutional harm.” Id. at 70. No interim developments 88 have changed the status of the Case 1:19-cv-02379-KBJ Document 46 law. Additionally, upon review of the Supreme Filed 11/25/19 Page 91of 120 Court’s past jurisprudence on the matter, this Court found the following quote that renders dubious the standing and cause-of-action arguments that DOJ presses now: “Without the power to including of course the authority investigate— to compel testimony, either through its own processes or through judicial trial—Congress could be seriously exercise its constitutional function wisely handicapped in its efforts to and effectively.” Quinn v. United States, 349 U.S. 155 (1955). The President Does Not Have The Power To Prevent His Aides From Responding To Legislative Subpoenas On The Basis Of Absolute Testimonial Immunity C. 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 II (see Compl. ¶ 107); that provide testimony subpoena to former White House Counsel Donald F. McGahn McGahn has refused to appear before the Committee to as required (id. ¶ 109); and that “[t]here is no lawful basis for McGahn’s refusal to appear before the Judiciary Committee” (id. ¶ 110). 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. Mot. at 27.) Def.’s DOJ asserts that current and former senior-level presidential aides have “absolute testimonial immunity” from compelled congressional law; therefore, if the President invokes “executive privilege” aides’ (See testimony—as process, as a matter of over a current or former he has done with respect to McGahn—that aide need not accede to the lawful demands of Congress. (Id. at outset, what is not at issue in the instant 27–28.) Thus, it is important to note at the case. No one contests the lawfulness of the 89 Case 1:19-cv-02379-KBJ Document 46 Judiciary’s subpoena, Filed 11/25/19 Page 92 of 120 and no one maintains that, if McGahn has the legal duty to testify before the Committee, that a senior-level aide in his position has no right to invoke executive privilege to withhold certain information in the course of his testimony, as appropriate.24 For the reasons that follow, this Court finds that the President does not have (and, thus, cannot level aides from Miers, as lawfully assert) responding to the power to prevent his current and former senior- congressional subpoenas. As Judge Bates explained in a matter of law, such aides do not have absolute testimonial Therefore, as it relates to them, a valid legislative subpoena issued by a duly authorized committee of Congress gives rise to a legally enforceable duty to perform. The President cannot override this duty, notwithstanding OLC’s ostensible such power. Accordingly, legislative subpoena requires immunity. recognition of if a duly authorized committee of Congress issues a valid to a current or former senior-level presidential aide, the law the aide to appear as directed, and assert executive privilege as appropriate. See Miers, 558 F. Supp. 2d at 106. 1. Miers Squarely Rejects The Argument Senior-Level Presidential Aides Enjoy Absolute Testimonial Immunity Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), is the only recorded case in our Nation’s history that addresses the legal argument that a senior-level presidential directly aide is immune to a The astute reader will note that the Judiciary Committee’s complaint does include an allegation that President has waived executive privilege as to the subpoenaed testimony that relates to matters and information discussed in the Report.” (Compl. ¶ 112.) However, by consent of the parties and with respect to the Court’s consideration of the pending cross-motions for summary judgment, the question of whether and to what extent McGahn can actually invoke executive privilege during his testimony before the Committee in light of the President’s alleged waiver has been put on hold. 24 “[t]he 90 Case 1:19-cv-02379-KBJ Document 46 mandate. The dearth of Page 93 of 120 when the President directs him to ignore that legislative subpoena seeking testimony congressional Filed 11/25/19 cases involving compelled congressional issued to Executive branch officials is likely attributable to the fact that related conflicts between rather than litigated, direct Congress and the Executive branch as DOJ points out. subpoena-related disputes (See between Congress prerogative as a general are usually negotiated, and the Executive branch do exist, it infrequent; the Court suspects that this matter, Congress’s clear constitutional to compel information in furtherance of its legislative and oversight functions has been historically Watkins, subpoena- Def.’s Mot. at 33–36.) In addition, while appears that such conflicts have been relatively is attributable to the fact that, process 354 U.S. 187–88. recognized Regardless, and is typically widely respected. See Miers is precedential with respect to the merits of DOJ’s assertion that absolute testimonial immunity shields senior-level presidential aides, because Judge Bates squarely confronted the issue of whether the law permits the legal duty that arises when a senior-level subpoena to be, in essence, canceled In Miers, Judge Bates immunity explained “there is Supreme Court powerfully suggests then turned to that (1950), with a in which case law.” that it had reached that conclusion authority that is all but conclusive enjoy congressional subpoena Miers, 558 primarily F. Supp. because on this question and that absolute law, beginning with United States “[t]he Supreme a legislative his conclusion that “the asserted absolute unsupported by existing that such advisors do not case aide receives the President. begins by stating claim here is entirely 2d at 99. The court by presidential immunity.” Id. Miers v. Bryan, 339 U.S. 323 Court has made it abundantly clear that compliance is a legal requirement.” 91 Id. (citing Bryan, 339 U.S. at Case 1:19-cv-02379-KBJ Document 46 The Miers court next 331).25 (1982)—a the Filed 11/25/19 explained how, in Harlow Page 94 of 120 v. Fitzgerald, 457 U.S. 800 case in which senior White House aides had been sued for civil Supreme damages— Court had “virtually foreclosed” the argument that senior-level White House aides were entitled to absolute testimonial immunity. Miers, 558 F. Supp. 2d at 100–01. This was because, according to Miers, Harlow had concluded that such aides were, at best, entitled to qualified immunity [for immunity, notwithstanding the fact that “absolute civil damages] extended to legislators, judges, prosecutors, and the President himself[.]” Id. at 100; see also id. (noting that, in Harlow, “the Supreme Court rejected the analogy to legislative aides that the Executive now invokes here”).26 Even with respect to the underlying contention that the President himself is entitled to absolute testimonial immunity, Miers found that compelled the opposite conclusion. For example, binding Supreme according Court cases to Judge Bates, United States v. Nixon, 418 U.S. at 707–08, holds that the President “may only be entitled to a presumptive, rather than an absolute, privilege[,]” and it would be inconsistent with the Supreme aides a “superior card of manifestly Court’s holding in that regard to accord presidential immunity.” Miers, 558 F. Supp. 2d at 103. Judge noted that, in Clinton v. Jones, 520 U.S. 681 (1997), “then-Chief Justice joined in the holding Bates also Rehnquist that even the demands of the President’s schedule could not Miers noted, in particular, Bryan’s classic observation that “[a] subpoena has never been treated as game of hare and hounds, in which the witness must testify only if cornered at the end of the chase.” Miers, 558 F. Supp. 2d at 99 (quoting Bryan, 339 U.S. at 33) (internal quotation marks 25 an invitation to a omitted). Harlow addressed the applicability of the “alter ego” derivative immunity that the Supreme Court had determined applied to legislative aides in a case called Gravel v. United States, 408 U.S. 606 (1972), to senior-level presidential aides who worked in the White House. 457 U.S. at 809–11. Like DOJ in this case (and in Miers), the argument on the table was that senior-level presidential aides should be deemed to have the absolute immunity from civil damages that the law confers to their boss. Id. at 808. As Miers pointed out, the Harlow Court rejected that argument. Id. at 813. 26 92 Case 1:19-cv-02379-KBJ Document 46 relieve him of the Filed 11/25/19 to give a civil deposition.” duty Miers, 558 Page 95 of 120 F. Supp. 2d at 104 on this key holding, Judge Bates pointed out that “[i]f the President must find time to comply with compulsory process in a civil (citing Clinton, lawsuit, 520 U.S. at And based 706). so too must his senior advisors for a congressional Miers also recognizing specifically rejected absolute testimonial Nixon v. Sirica, 487 F.2d 700 involving the enforcement of the asserted separation-of-powers immunity by relying (D.C. Id. at 105. subpoena.” basis for on the D.C. Circuit’s language in a case duces tecum served on the Cir. 1973). There, in the context of a grand jury subpoena President, the Circuit specifically asserted that, “[i]f the claim of absolute privilege recognized, its mere invocation the President by all documents in all the Executive departments was or his surrogates could deny access to to all citizens and their representatives, as well as grand juries, state governments, state officials and all state subdivisions.” Sirica, 487 F.2d at 715; see also id. (noting that, if absolute including Congress, the courts immunity existed, “[t]he Freedom of Information Act could become a legislative statement of unenforceable rights[,]” and cogently nothing concluding more than that “[s]upport for this kind of mischief simply cannot be spun from incantation of the doctrine of separation rather of powers”). plainly contemplates Congress—rather than And Judge that executive Bates privilege ably reasoned that “[t]hat passage is not absolute even when a grand jury—is the party requesting the information.” Miers, 558 F. Supp. 2d at 103. Finally, Executive opinions Miers further recognized that, “[t]ellingly, the only authority that the can muster in support of its absolute immunity assertion are two OLC authored by Attorney General Janet Reno and Principal Deputy Assistant 93 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 96 of 120 General Steven Bradbury, respectively.” Id. at 104 (citing Assertion of Attorney With to Clemency 23 Op. O.L.C. 1(1999); Executive Privilege Immunity of the Former Counsel to the President From Compelled Respect Decision, 31 Op. O.L.C. 191 (2007)). Miers explained that because Testimony, are immune from conclude that immediate advisors to the President congressional testimony[,] [t]he question, then, Id. opinions.” Ultimately, absolute immunity.” issued hastily a day compelled opinions give to those were not persuasive, single judicial opinion recognizing Id. Furthermore, “the on the same “[t]hose opinions is how much credence to Miers determined that the because “[n]either cites to largely Congressional three-page Bradbury the asserted OLC opinion was that the President instructed Ms. Miers to invoke and it relies almost upon the conclusory Reno OLC absolute immunity, opinion and a statement from a memorandum written exclusively by then-Assistant Attorney General William Rehnquist in 1971.” Id. In this Court’s view, Miers employs sound merits analysis, this Court particular, adopts its absolute testimonial the Court, too, reads the cited absolute testimonial immunity argument the Miers cites, coupled with the logical And with respect to the reasoning. immunity analysis cases to support the finding that DOJ’s is all but foreclosed flaws in DOJ’s by the binding legal analysis, in the discussion below. In short, this Court finds that the Miers court determined not presidential with key only that the principle in full. In case law which is laid out rightly of absolute testimonial immunity for senior-level aides has no foundation in law, but also that such tenets of our constitutional order. And, notably, 94 a proposition conflicts no other court has considered Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 97 of 120 the absolute testimonial immunity question that Miers addressed since that case was decided.27 In the context of the instant case, DOJ responds by asserting that Miers was wrongly decided. emphasized (See Def.’s Mot. at 48.) Moreover, and in any event, DOJ has that Miers’s sphere of influence is exceedingly limited. 118:13–118:14.) (See Hr’g Tr. at The thrust of the latter contention is that Miers is only one opinion— no binding authority followed—and, implicitly, the law is not established by the word of a single district court judge. See id. On the other hand, says DOJ, scores of OLC attorneys have considered this issue opinions, over the past five decades, and in a series of OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. (See Def.’s Mot. at 60.) And by minimizing Miers’s reach in this way, DOJ suggests that, in the absence of a rejecting groundswell of judges the concept, this Court should not readily find that the law is what Miers concluded. Setting aside the implications of DOJ’s argument for this district court’s consideration of these issues, its effort to undercut Miers’s holding is ineffectual, primarily because the argument precedent in establishing the law as the next court understands it, and also the fact that inappropriately downplays both the importance of prior DOJ itself controls whether more courts will have the opportunity to rule on the issue. To be sure, Miers is just one non-binding opinion. But, as noted, its analysis with In Committee on Oversight & Government Reform v. Holder, District Judge Amy Berman Jackson evaluated whether, pursuant to a congressional subpoena, documents over which the Attorney General had asserted executive privilege must be turned over to the congressional committee. 979 F. Supp. 2d 1. Although the Holder opinion adopts Miers’s reasoning with respect to the threshold issues of jurisdiction, standing, and cause of action, see id. at 10–12, 17–26, that court had no occasion to consider the merits of the absolute testimonial immunity claim that DOJ makes here. 27 95 Case 1:19-cv-02379-KBJ Document 46 to the absolute testimonial respect immunity Filed 11/25/19 issue is directly Page 98 of 120 on point; therefore, it has considerable sway in terms of this Court’s conclusions. Moreover, and in any event, this Court cannot ignore it and still remain consistent with traditional Thus, DOJ’s best chance of persuading this Court counter the various Miers’s aspects of Miers’s holding directly; alleged analytical Court to rule differently was to a skillful play-by-play of same threshold and merits arguments that Miers’s as if this was a matter of first almost norms. flaws would have been most useful. Instead, in its briefing, DOJ has presented essentially the rejected, juridical impression, and thus, it has given the no reasonable basis to distinguish the circumstances of the instant case, nor any reason to interpret the law in a different fashion than Judge Bates did, as explained above. (See, e.g., Def.’s Mot. at 48–50 (asserting, over the span of two principled pages, that Miers was wrongly decided with respect to the threshold jurisdictional and standing issues, argument before proceeding that senior-level to draw presidential solely from OLC opinions to support the aides have absolute testimonial immunity).) The cases on these issues is at least in part attributable to DOJ’s prior rational decisions to enter into negotiations over the scope of Court also observes that the lack of other testimony and records when past Executive branch officials received subpoena, rather than proceed purported immunity. (Def.’s Executive branch official’s non-justiciable issue. to court to litigate the Mot. at 32–36.) alleged immunity (Def.’s Mot. at purported a legislative scope of those officials’ DOJ further argues here that to compelled 31–52.) Surely, congressional process is a DOJ cannot both act to keep the immunity issue away from the courts, and also be heard to suggest that the precedent is itself sufficient proof an paucity that the law must countenance the concept. 96 of Case 1:19-cv-02379-KBJ Document 46 2. Filed 11/25/19 Page 99 of 120 OLC’s Long-Held View That Senior-Level Presidential Aides Have Absolute Testimonial Immunity Is Neither Precedential Nor Persuasive That all said, it is certainly true that OLC has long been of the view that senior- level presidential aides have absolute testimonial the first recorded statement of the agency that immunity; indeed, specifically as Miers indicates, commits this view to writing was authored in 1971. See Mem. from William H. Rehnquist, Assistant General, Office of Legal Counsel, Domestic Affairs, Power of Testimony then-Assistant point Attorney to John D. Ehrlichman, Assistant to the President for Congressional of “White House Staff” Compel Appearance or In that year, General William Rehnquist produced a memorandum on the advisers—that is, those who that citation) customarily basis—should be deemed congressional Committee to (Feb. 5, 1971) (“1971 Memorandum”). that maintained (without direct frequent Attorney “[t]he President and his immediate meet with the President on a regular or absolutely immune from testimonial compulsion by a 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 Miers, 558 only F. Supp. 2d at 106. Consequently, judge of its own privilege[.]” its statement of the law is “entitled to 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 familiar factors: the authority from compelled congressional that is provided in support of this process turns on two proposition, and the reasons that are provided for why the author reached this conclusion. With respect to 97 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 100 of 120 the first consideration, it cannot be overstated that the 1971 Memorandum does not cite to a single case that stands for the asserted statements by and the ten-plus subsequent OLC that DOJ points to in support of this immunity simply reference back to the 1971 Memorandum without saying proposition, providing any court authority. It goes without an unsupported notion into law. As for the logic behind the view, the original memorandum appears to reason that longevity by analogy. admittedly It begins alone does not transform by recognizing the breadth of Congress’ power of “carries with it the power to compel the testimony inquiry, by which of a witness.” 1971 Mem. at 1. And then as if providing the solution to a problem that it had not yet identified, 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 the 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 immunity suggests, for example, “a certain analogy to judicial “distinction” is made “between a claim of absolute as a witness, and proceedings[,]” of one’s testimony Ultimately, even being sworn in certain questions in the course immunity a right to claim privilege in answering in which a from as a witness.” Id. at 4. the 1971 Memorandum pushes for the former, on the basis of a handful of historical examples in which former assistants to various Presidents refused to appear before Congress At least one of these folks was committee that “grounded in response to a legislative apparently polite enough his refusal subpoena. blatantly See id. at 5–6. to write a letter to the on the confidential nature of his relationship with the President.” Id. at 5. But others merely sent 98 congressional subpoenas back with the Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 101of 120 each instance that President directed me, in view of my simple statement that duties as his Assistant, not to appear before your subcommittee.” Id. at 5; see also id. “[i]n at 6. Tellingly, already the 1971 Memorandum does not purport to suggest that the law countenanced such behavior. Rather, the posture of the Memorandum appears to be a policy piece that Moreover, provides its client with arguments for why as Miers notes, Rehnquist admitted that “his conclusions and sketchy,’” Miers, 558 F. Supp. 2d at 104 (quoting 1971 Mem.at role as a Supreme candid moment in the text of the Memorandum, historical precedents for refusing inconclusive” but that “[i]n a a congressional strictly headstart in any controversy with the something [were] 7), ‘tentative and in his later Court Justice, he “apparently recanted those views[,]” id. In one especially wants it should be thus. subpoena Rehnquist “are admits that the obviously quite tactical sense, the Executive Branch has a Legislative Branch, since the Legislative Branch 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 subpoenaed, over their legally enforceable OLC subsequently developed references the 1971 Memorandum, but initial basis for this conclusion duty to appear for testimony when an entire series of statements, each of which none of which specifically acknowledges that the was seemingly formed out of nothing. 28 The Executive appears to have adopted a practice of regularly securing a new OLC opinion on the existence of testimonial immunity whenever faced with a new Congressional subpoena. See, e.g., Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the 28 99 Case 1:19-cv-02379-KBJ Document 46 This inauspicious having to opinion respond to that senior-level aides to the President are compelled congressional Additionally, subsequent developments Memorandum’s suggestion was settled because prosecution Page 102 of 120 start does not bode well for this Court’s determination of whether OLC’s persistent immune from Filed 11/25/19 process should be credited. in caselaw have cast doubt on the 1971 that the matter of the President’s own absolute “[e]veryone absolutely immunity associated with the Executive Branch from [the of Aaron Burr] until now, so far as I know, has taken the position that the President himself is absolutely immune from subpoena by anyone[.]” 1971 Mem. at 3; see also Clinton v. Jones, 520 U.S. 681 (1997); United States v. Nixon, 418 U.S. 683 (1974).29 Moreover, in this first formal floating of the principle of absolute testimonial immunity for certain aides of the President, the author was also crystal clear that the “absolute immun[ity] he was proposing was from testimonial compulsion primarily by available to the President 24 hours a accommodating a convenient time, could analysis impair committee or that pressed availability.” committee” that and the necessity of either a court to arrange a more 1971 Mem. at 7. Of course, that immunity to former senior-level in recent times. 43 Op. O.L.C. __, at *1; Immunity Cong. Testimony, 31 Op. O.L.C. 191 (2007). President, day, persuading does not support the extension of absolute aides that DOJ has congressional due to the fact that such “immediate advisors” are “presumptively congressional a of Former Counsel to the President from Compelled Miers suggests that the contention that the President enjoys absolute immunity from compelled process was dubious as a legal proposition long before the Nixon and Clinton cases. See Miers, 558 F. Supp. 2d at 70. In this regard, Judge Bates points to Chief Justice Marshall’s opinion in United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807). In Burr, Chief Justice Marshall explained that “the obligation [to comply with a subpoena] . . . is general; and it would seem that no person could claim an exemption from [it].” Id. at 34 (emphasis added). Therefore, in Chief Justice Marshall’s view, “[t]he guard, furnished to [the President], to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued; not in any circumstance which is to precede their being issued.” Id. 29 congressional 100 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 103 of 120 In fairness, over time, the initial take on absolute testimonial evolved. It appears that OLC’s subsequent various other statements in support of this proposition were beefed up with reasons for why one could plausibly assert that certain aides of the President should be absolutely immune from reasons largely invoke constitutional separation harassment of the aides (and thus, the covered by executive privilege, subordinate to the having to testify before of powers concerns, President), and the appearance that the Executive branch is Legislature. See, e.g., Testimonial Immunity Before immunity, congressional committees could wield their to attempt to supervise the President’s actions, McGahn OLC Mem., 43 government. separation partisan gain.” (quotation Op. O.L.C.__, Congress of the O.L.C. __, at Op. power compulsory or to harass those advisers in an effort to influence their conduct, retaliate for actions the committee disliked, weaken the President for including potential the risk of disclosure of information Assistant to the President and Senior Counselor to the President, 43 *2 (“Absent which Congress, or embarrass and marks and citation omitted)); at *5 (“The President is a separate branch of He may not compel congressmen to appear before him. As a matter of of powers, marks and citation Congress may not compel him to appear before it.” (quotation omitted)); Immunity *4 (“The pressure of compelled congressional hearing would of the Assistant to the President, 38 Op. live testimony about White House activities in OLC at a public . . . create an inherent and substantial risk of inadvertent or coerced disclosure of confidential information relating to presidential decisionmaking—thereby ultimately threatening the President’s ability to receive candid and carefully considered advice from his immediate advisers.”). Many reasons appear in the brief that DOJ has submitted to support absolute 101 of these immunity in the Case 1:19-cv-02379-KBJ Document 46 context of this case. aspirational given Filed 11/25/19 Page 104 of 120 But, unfortunately for DOJ, its mere recantation of these assertions does not make the proposition any more persuasive, and in fact, 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. 3. There Is No Principled Basis For Concluding That Senior-Level Presidential Aides Should Have Absolute Testimonial Immunity DOJ maintains that its contention that senior-level presidential aides should enjoy absolute testimonial immunity plainly follows from two related premises: (1) that the President himself has absolute testimonial immunity from compelled congressional process, and (2) that, as a derivative matter, so too must his “immediate advisors. . . with whom the President customarily meets on a regular or frequent basis.” (Def.’s Mot. at 60; see also Hr’g Tr. at 107:12-14 (acknowledging that DOJ is making “purely a derivative argument[,]” and that if the Court does not “think the President has absolute immunity, then that is a serious problem”).) In Miers, Judge Bates ably explains that both of these assumptions stand on shaky footing after United States v. Nixon, Clinton v. Jones, and Harlow v. Fitzgerald. See Miers, 558 F. Supp. 2d at 100–05. This Court agrees with Miers’s analysis, and it also observes that none of the differences that DOJ has highlighted between the instant case, on the one hand, and Clinton and Nixon, on 102 Case 1:19-cv-02379-KBJ Document 46 the other, the actually proposition immunity such matters.30 The that senior-level has no principled immunity following presidential Filed 11/25/19 Page 105 of 120 brief observations further demonstrate that aides are entitled to absolute testimonial which further undermines DOJ’s assertion that justification, must exist. First of all, the concept of absolute immunity from compelled congressional process cannot be gleaned from cases that endorse absolute testimonial immunity for legislators, or those that accept absolute immunity from civil damages for a variety of public officials. For example, DOJ’s reliance on Gravel v. United States, 408 U.S. 606 (1972) is obviously misplaced, because legislative aides derive their absolute immunity from the Constitution’s provision of absolute testimonial immunity to congresspersons the through Supreme applies Speech and Debate Clause. See id. at 615–17. As Miers explained, the Court in Harlow specifically addressed the argument that such immunity to senior-level executive aides, then concluded that, in contrast to legislative aides, senior-level executive aides are only entitled to qualified immunity. Harlow, 457 U.S. at 809. Nor can DOJ reasonably applies rely on the well-established to the very different circumstance of immunity body from civil of case law that damages. There are DOJ attempts to distinguish the Clinton and Nixon cases on the grounds that those cases involved subpoenas issued in the context of a private, civil action for damages and in grand jury proceedings, respectively, while, here, what is at issue is a legislative subpoena. DOJ further contends that, in Nixon, live testimony by the President was not at issue. However, these distinctions are immaterial from the standpoint of the Supreme Court’s conclusion that, while presumptively important, a President’s confidentiality interests may sometimes be overridden over his objection. Furthermore, in this Court’s view, DOJ’s emphasis on the fact that what is at issue here is a legislative subpoena undercuts its argument, given the Supreme Court’s long-held reverence for Congress’s broad investigative authority. Where the law has not provided absolute immunity for Presidents who are facing significant civil damages lawsuits or who have criminal exposure (i.e., compelling claims to the need for confidentiality), it seems unlikely that a President would be declared absolutely immune from compelled congressional process. 30 103 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 106 of 120 reasons why courts have determined that judges, and legislators, and presidents cannot be held liable for civil damages for discretionary decisions that they make in the course of their duties. See, e.g., Forrester v. White, 484 U.S. 219, 225 (1988) (finding that absolute immunity from civil damages for judicial acts protects “the finality of judgments[,] discourage[es] inappropriate independence by insulating judges litigants” (citation omitted)); collateral attacks, [and] protect[s] judicial from vexatious actions prosecuted by disgruntled Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982) (holding that the President is absolutely immune from civil damages due to “the importance singular of the President’s duties,” and that “diversion of his energies by concern with private lawsuits would raise government”); Tenney legislators “must unique risks to the effective functioning of v. Brandhove, 341 U.S. 367, 375 (1951) (explaining that be free to speak and act without fear of criminal and civil the reason for the absolute immunity liability” as endowed by the Speech and Debate Clause and similar provisions in “[f]orty-one of forty-eight State[]” constitutions); see also Imbler v. Pachtman, 424 U.S. 409, 424 (1976) (explaining the purpose of absolute immunity from civil damages for prosecutorial acts is to allow a prosecutor “to exercise his best judgment both in deciding which suits to bring and in conducting them in court”). And at least one of these justifications does not seem at all applicable to the reasons why one might have immunity from compelled congressional process.31 One cannot simply 31 For example, in Mireles v. Waco, 502 U.S. 9 (1991), the Supreme Court found that the district court had properly dismissed a case brought against a judge who had allegedly authorized police officers to use excessive force in seizing an individual because “a judicial officer, in exercising the authority vested in him, [must] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id. at 10. By contrast, an executive branch official has no parallel expectation that he or she will not be called upon to testify about the operations of their offices. Indeed, Congress’s long standing and widely accepted power of inquiry, makes the potential for being questioned about one’s work an ever present possibility. 104 Case 1:19-cv-02379-KBJ Document 46 assume that the same rationale that civil functions are immunity absolutely from compelled compels Filed 11/25/19 Page 107 of 120 the conclusion that those who hold certain immune from civil damages necessitates absolute congressional process, even for those same individuals. DOJ’s conception of absolute testimonial immunity for senior-level aides also turns out to be overbroad in application, which results in its imposing unwarranted societal costs. To understand that the Court posed during scenario in which to appropriate working why this is so, it is helpful to reflect the motions hearing. The Court posed on a hypothetical to DOJ counsel a an authorized House committee is interested in determining whether to improve the décor and the infrastructure-related special funding environment inside the White House. wishes to evaluate the need for such additional who works there, and to compel this witness (Hr’g Tr. 124:8–20.) The committee funding, testimony, and it wants to talk to everyone if needed. The Court asked DOJ counsel whether, if subpoenas issue, could the White House Counsel invoke absolute testimonial aides? immunity to excuse the participation of senior-level presidential (See id.) After engaging briefly with the Court in a humorous exchange about the Executive branch’s interest in addressing certain issues that White House probably immunity able to (see id. at 124:21–22), currently exist with the DOJ counsel responded that “the President would allow his most sensitive aides to go testify” but “if the person has testimonial and the President has asserted it . . . then, yes, [the committee] wouldn’t be compel the person.” (Hr’g Tr. at 124:25–125:6.) Upon reflection, looking at it one has to wonder why that is the case? Those aides’ status as senior-level assistants to the President seems irrelevant—i.e., when it comes to being asked about logically, 105 Case 1:19-cv-02379-KBJ Document 46 the decor in the White House, either Filed 11/25/19 Page 108 of 120 no White House worker should have to be bothered or everyone who is called should have to appear. Therefore, the distinction between aides with heightened knowledge, access to the President, and with Congress’s questions, special responsibilities (i.e., the of topic distinction. senior-level Congress’s investigation Why, then, special trump presidential aides) does not should senior-level card with respect to such makes even conceivably presidential aides no difference where always get congressional requests? Judge on a similar concern in Miers, and DOJ has yet to explain why such implicate to play a Bates reflected “Congress should be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege.” Miers, 558 F. Supp. 2d at 106. On the other hand, if Congress seeks to explore with certain senior-level White House aides topics of a potentially sensitive can exert executive President appropriate, to protect any privilege privileged nature, it is widely accepted that the with respect to his aides’ answers, as information. Miers, 225 F. Supp. 2d at 106. Given this, the question becomes why, then, would such senior-level aides need absolute immunity? congressional In other words, even without a total process, senior-level White House aides confidential and privileged information that they can do so by asserting an appropriate questions that probe too deeply. Thus, from compelled can withhold the kinds of distinguishes privilege exemption them from if needed, when everybody else; legislators it appears that absolute testimonial immunity serves only the indefensible purpose of blocking testimony about non-protected 106 ask subjects Case 1:19-cv-02379-KBJ Document 46 that are relevant to a have a legal duty Filed 11/25/19 congressional investigation Page 109 of 120 and that such an aide would otherwise to disclose.32 this would appear to be the case even with respect to aides who, like Notably, White House Counsels, are “at the hub of all (internal quotation marks and citation To be sure, White House Counsels and omitted)). other similar aides have unfettered access to the President on a and their roles with the Executive branch involve information that is confidential in nature, for our national security. (See Mot. at 69 presidential activity.” (Def.’s daily including Def.’s Mot. at 70 basis regular contact with copious (see id.), amounts of information that has been classified (emphasizing that “the role of the Counsel is to provide advice and assistance to the President and to carry out ‘responsibilities of utmost discretion and sensitivity’ on his behalf in all realms of domestic, military, and foreign affairs” (quoting Fitzgerald, 457 U.S. at 749–50).) But DOJ has not persuasively explained why such access warrants absolute testimonial immunity, with where such an individual would be counseled in any sworn communications Congress, and would have other lawful basis for ample opportunity withholding information, to invoke executive privilege as needed to protect the or any legitimate interests of the Executive branch. And, of course, if such an aide cannot lawfully invoke any privilege to protect information in response to the committee’s questions, DOJ suggests that there is something about Don McGahn’s former proximity to national security matters that warrants his immunity nonetheless. (Def.’s Mot. at 69, 73.) But it has not explained why this is so, given that such senior-level aides would certainly have the right to withhold information on 32 the grounds of an applicable privilege, where appropriate. Thus, the fact that McGahn was “White House Counsel” and undoubtedly had exposure to “matters affecting the military, foreign affairs, and national security” (Def.’s Mot. at 64 (quotation marks and citation omitted)) does not provide an additional justification for a grant of absolute testimonial immunity under these circumstances. If what he knows can be lawfully withheld as covered by an applicable privilege, then the law will preclude its disclosure, even if he is compelled to testify in the absence of immunity. And if he cannot properly invoke the privilege, then there is no rational basis for maintaining that he should be immune to Congress’s questioning. 107 Case 1:19-cv-02379-KBJ Document 46 then there is no rational basis for responding to Congress’s valid maintaining subpoena Filed 11/25/19 Page 110 of 120 that he should be immune from in the first place. It is also the case that the other rationale that such senior-level might hope to rely on—‘I’m too busy’—is presidential unavailable in the wake of the aides Supreme even the President himself must find the time. See Miers, 558 F. Supp. 2d at 104. In any event, no such excuse could possibly apply to former seniorCourt’s conclusion that level aides, who have longer duty have proximity long departed to power. What, then, justifies their right to respond to a call from Congress, choice? At a minimum, this especially perplexing question conundrum: if the purpose of providing absolute testimonial is that the then what immunity justifies allowing life? As a matter of pure the reason that a categorical when other raises the citizens have no following conceptual certain senior-level practicalities to be excused from the private presidential aides with of their special roles demand it, that entitlement to follow them when logic, no from the White House, because such individuals they return to private it would seem that if one’s access to the Oval Office is exemption warranted, then that trump card should, from compelled at most, be a congressional raincheck, and process is not the lifetime pass that DOJ proposes. DOJ’s apparent response to the concern that absolute testimonial immunity for current and former senior-level aides serves no purpose is its suggestion in its briefs that such broad immunity absolute testimonial and without it, the congressional serves three more systematic immunity goals. First, it asserts that facilitates frank communications in the White House, potential “public spectacle” committee “would surely of having to appear before a exert influence over 108 [senior-level aides’] Case 1:19-cv-02379-KBJ Document 46 conduct in office, and could they offer to the President. this representation. government officials consequence, adversely (Def.’s Filed 11/25/19 Page 111of 120 affect the quality and candor of the counsel” that Mot. at DOJ provides 70.) no evidence to support And it appears to contradict the lived experience of the many who have testified before Congress, seemingly without over the years. See Miers, 558 F. Supp. 3d at 102 (observing that “the historical record produced by the Committee reveals that senior advisors to the President have often testified before Congress subject to various subpoenas dating back to 1973”). DOJ’s assertions about the chilling effect of compelled congressional process also that imply congressional questioning that characterization drastically is needlessly intrusive and unwarranted, and discounts the reasons why executive branch officials, members of the President’s staff, are called to including has suggested on numerous occasions, Congress but to the provide legislative Legislature government having performing perform to testify actually truthfully about the inner its critical be sufficient to prevent workings key public People of the United States—then the servants who work within the Congress, and thereby of servants our government are all, in fact, pushing in the same as they should be—i.e., toward developing and implementing in the best interests of the with Court as assistants to the President seems anomalous. Moreover, if the institutions of public Supreme in witnesses not as punishment, with the information that it needs to is a threat that would from competently the As the and oversight functions. Watkins, 354 U.S. at 187; McGrain, 273 U.S. at 175. Thus, the idea that direction brings testify. perform government might his public 109 duty of policies possibility that that are one of be called upon to cooperate giving authorized legislators the Case 1:19-cv-02379-KBJ Document 46 means of performing their own constitutional for fear. And if it does, testimony Filed 11/25/19 Page 112 of 120 functions, provides no reasonable grounds as DOJ here suggests, then that is all the more reason why such is critical. In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the interest in Legislature’s that current and former senior-level presidential immune from answering probing questions, governmental scheme that gathering truthful information, such aides should be always and forever is manifestly inconsistent with a can only function properly if its institutions work together. See The Federalist No. 51 (James Madison). DOJ’s second systematic without absolute testimonial concern is similarly discordant. DOJ insists that, immunity to a halt from the for senior-level presidential aides, the Executive branch would grind upon it. Def.’s Mot. at 65.) This representation is plainly speculative. (See Furthermore, such speculation weight of the subpoenas that would be thrust seems unreasonable, given two known facts. First of all, as DOJ itself admits, Congress has long demanded information from high-level members of the Executive branch, apparently 721 (noting that Presidents have “been the without incident. See Mazars, 940 F.3d at subjects of Congress’s legislative investigations” as far back as 1832, and that “fewer of these have intervention”). As the “predictive judgment Supreme Court commented in Clinton finds little support in either history required judicial v. Jones, the President’s or the relatively narrow compass of the issues raised in this particular case.” Clinton, 520 U.S. at 702 omitted)); the see also id. (“As we have already Republic, only three sitting noted, in the more than (citations 200–year history Presidents have been subjected to suits for their 110 of private Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 actions. If the past is any indicator, it seems unlikely that will ever engulf the DOJ’s theory. The second decade since senior-level Judge a deluge of such litigation Presidency.”). In addition, as relevant here, we have a test case disprove, Page 113 of 120 significant by which fact is that it has been more than Bates released the Miers decision, which presidential aides lack absolute we can prove, or immunity plainly a announced that from compelled congressional process. Ironically, Miers itself observed that “[i]t is noteworthy that in an environment where there is no judicial support whatsoever for the Executive’s claim of absolute immunity, the historical record also does not reflect the wholesale of testimony from senior presidential advisors that the Executive fears.” by Congress Miers, 558 F. Supp. 2d at 102. And the absence of such noteworthy at present. Surely harass the Executive branch it sufficient compulsion impetus seems even more if Congress was inclined to utilize its subpoena power to unjustifiably, to do so. history Yet, then Miers’s own holding would have given even DOJ must acknowledge that no such parade of horribles has happened. DOJ’s third argument for the necessity of absolute testimonial immunity for systematic reasons places it back in the familiar of-powers contentions. In this [current and] regard, former advisors to of Executive subservience to the 70), which, in its view of what the Constitution Congress President before it to permits, could not, consistent with the compel public spectacle of haling a sitting President before a committee of Congress .. . the committee of of its constitutional separation- it maintains, that “the promote[s] perception refuge him to testify Mot. at is improper, because “[a] separation under oath, any 111 Legislature” (Def.’s of powers, hale the more than the President may Case 1:19-cv-02379-KBJ Document 46 compel Filed 11/25/19 Page 114 of 120 congressmen to appear before him” (Def.’s Mot. at 63). Here, once again, DOJ calls on separation-of-powers principles to do work that the Framers never intended. Indeed, the entire point of segregating the powers of a monarch into the three different branches of government was to give possess. Thus, while the branches that one cannot unlawfully each branch certain might subvert the authority well be conceived of as prerogatives of another), that the others did not co-equals (in the sense that does not mean that all three branches must be deemed to have the same powers. To the contrary, the President cannot hale members of precisely because the power of the Constitution itself Congress inquiry resides with the expressly prevents inquisitors by inflicting its own into the White House for subpoena Legislature, the Executive branch from power on members of questioning and also because becoming Congress for political reasons. 33 Therefore, DOJ’s argument that the House of Representatives, which unquestionably possesses the constitutionally authorized power of inquiry and also the power of impeachment, should not be able to issue subpoenas to executive branch officials because the President cannot do the same to them, simultaneously appreciates traditional separation-of-powers principles and subverts them, and as such, truly makes no sense. See Miers, 558 F. Supp. 2d at 103 (explaining that the Executive branch’s 33 The Speech and Debate Clause mandates that members of the House and Senate and their aides “may not be made to answer—either in terms of questions or in terms of defending himself from prosecution—for the events that occurred” as part of the legislative process. See Gravel, 408 U.S. at 614–16. The Constitution, therefore, makes legislators and their aides immune to the force of subpoena with respect to protected legislative activity. The Supreme Court has explained that the Speech and Debate Clause derives from a similar provision of the English Bill of Rights of 1689, which served to address successive monarchs’ use of “criminal and civil law to suppress and intimidate critical legislators.” See United States v. Johnson, 383 U.S. 169, 179 (1966). Thus, the purpose of the Speech and Debate Clause is to protect legislators from intimidating and/or hostile executive and judicial inquiry, a common abuse of power in seventeenth century England. See id. at 181–82. And, notably, the Constitution includes nothing akin to the Speech and Debate Clause for the Executive branch. 112 Case 1:19-cv-02379-KBJ Document 46 Filed 11/25/19 Page 115 of 120 interest in “[p]residential autonomy, such as it is, cannot mean separation-of-powers that the Executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress's 4. historical oversight function”). Concluding That Presidential Aides Enjoy Absolute Testimonial Immunity At The President’s Discretion Conflicts With Core Constitutional Norms Finally, the Court turns to DOJ’s contention that, quite apart from the accepted ability of a President to invoke executive during the course of aides’ testimony to protect confidential information privilege before Congress, as a matter of law, it is the President who controls whether such aide provides any the motions hearing, DOJ’s counsel absolute testimonial belongs immunity to the President. privilege repeatedly emphasized vigor immunity 43:4–6 whatsoever. During that the power to invoke with respect to current and former senior-level aides (See, e.g., Hr’g Tr. at 42:15–16 (“[T]he President owns the here. So he is the owner of Mr. McGahn’s absolute compulsion[.]”), the same testimony (“[T]he President owns the with which he owns it to current privilege officials.”), immunity from as to former officials with 125:5 (maintaining that 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 at 43:12–16.) This single exchange—which brings disclaiming that.” (Id. 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 113 implications of DOJ’s absolute Case 1:19-cv-02379-KBJ Document 46 testimonial immunity argument, and also amply Filed 11/25/19 Page 116 of 120 demonstrates its incompatibility with our constitutional scheme. Stated simply, the primary takeaway from the past 250 years of recorded are not kings. See The Federalist No. 51 (James American history Madison); The Federalist No. 69 (Alexander Democracy Univ. of liberty, Hamilton); 1Alexis de Tocqueville, in America 115–18 (Harvey C. Mansfield & Delba Chicago by loyalty is that Presidents Press 2000) (1835). or blood, whose are entitled to control. it is indisputable that current and former for the People of the United States, and that they Constitution of the United States. Moreover, and former senior-level to free speech, private life. presidential and they retain these employees take Rather, in this land of of the White House work an oath to protect and defend the as citizens of the United States, current aides have constitutional rights eds. & trans., means that they do not have subjects, bound This destiny they Winthrop rights, including the right even after they have transitioned back into To be sure, there may well be circumstances in which certain aides of the President possess confidential, classified, divulged or privileged information that cannot be in the national interest and that such aides may be bound by statute or executive order to protect. But, in this Court’s view, the withholding of such information from the public square in the national interest and at the behest of the President is a mentioned, properly duty that the aide herself possesses. Furthermore, in the context of compelled congressional testimony, and lawfully executed as previously such withholding is on a question-by-question basis through the invocation 114 Case 1:19-cv-02379-KBJ Document 46 of a privilege, where appropriate.34 Filed 11/25/19 Page 117 of 120 As such, with the exception of the recognized restrictions on the ability of current and former public officials to disclose certain protected information, such enjoy officials (including senior-level presidential aides) still the full measure of freedom that the Constitution affords. Thus, DOJ’s present assertion that the absolute testimonial possess is, ultimately, owned by immunity that senior-level presidential aides 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. *** To make the point as plain as possible, it is clear to this Court for the reasons above that, with respect to senior-level presidential aides, absolute immunity explained from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer opinions, having in OLC and through accommodations that have permitted its proponents to avoid the proposition tested in the crucible of litigation. And because the contention that a President’s top advisors cannot be subjected to compulsory simply repetition congressional process has no basis in the law, it does not matter whether such immunity would theoretically be available to only a handful of presidential aides due to the sensitivity of With respect to such withholding, the President can certainly identify sensitive information that he deems subject to executive privilege, United States v. Nixon, 418 U.S. at 713, and his doing so gives rise to a legal duty on the part of the aide to invoke the privilege on the President’s behalf when, in the course of his testimony, he is asked a question that would require disclosure of that information. But the invocation of the privilege by a testifying aide is an order of magnitude different than DOJ’s current claim that the President essentially owns the entirety of a senior-level aide’s testimony such that the White House can order the individual not to appear before Congress at all. 34 115 Case 1:19-cv-02379-KBJ Document 46 their positions, Filed 11/25/19 Page 118 of 120 or to the entire Executive branch. Nor does it make any difference are privy to national security matters, or work solely on domestic issues. And, of course, if present frequent occupants of the West Wing or whether the aides in question Situation Room must find time to appear for testimony Congress issues a covering individuals who some point law when subpoena, as a matter of law when then any such immunity most certainly stops short of only purport to be cloaked with this authority because, at in the past, they once were in the President’s employ. This was the state of Judge Bates first considered the issue of whether former White House Counsel Harriet Miers had absolute testimonial immunity in 2008, and it remains the state of law today, and it goes without House Counsel Don McGahn, just saying that the law applies to former White as it does to other current and former senior-level White House officials. Thus, for the myriad plainly in the reasons laid out above as well as those that are articulated prior precedents of the Supreme Court, the D.C. Circuit, and the U.S. District Court for the District of Columbia, this Court holds that individuals who have been subpoenaed for testimony testimony by in response to that compulsory an authorized committee of Congress must appear for subpoena—i.e., they process, by order of the President cannot ignore or otherwise. or defy congressional Notably, however, in the context of that appearance, such individuals are free to assert any legally applicable privilege V. in response to the questions asked of them, where appropriate. CONCLUSION 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 116 Case 1:19-cv-02379-KBJ Document 46 this reason, as explained above, Executive branch when there is a Filed 11/25/19 dispute must act, the decide the issue. Moreover, government official has the committee of the House of Judiciary has the Legislature and the authority, and the responsibility, to as relevant here, when the issue in dispute is whether a duty to respond to a subpoena that a duly authorized Representatives has issued pursuant to its Article I authority, inflicts a the official’s defiance unquestionably thereby, substantially harms the national interest of between the over what the law requires about the circumstances under which government officials right Page 119 of 120 cognizable injury on Congress, and as well. These injuries give rise to a 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 question, and one that will itself subject to privilege. branch officials depend withholding But as far as the congressional committee requests is a separate in large part on whether the requested consistent with the law on the basis of duty a information is recognized to appear is concerned, this Court holds that Executive 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’ This result is unavoidable court recognized as a matter of basic constitutional more than a decade ago. inescapable precisely because non-compliance. compulsory Today, law, as the Miers this Court adds that this conclusion is appearance by dint of a subpoena is a legal 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 construct, not 117 Case 1:19-cv-02379-KBJ Document 46 proximity Filed 11/25/19 to sensitive domestic and national-security projects, Page 120 of 120 the President does not have the power to excuse him or her from taking an action that the law requires. years of say so within the Executive branch does not Nor is the power of the Executive unfairly or change improperly that fundamental truth. diminished when the mandates adherence to the law and thus refuses to recognize a veto-like power of the President to cancel his subordinates’ when a duly authorized committee of Congress Fifty legal obligations. Judiciary discretionary To the contrary, 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. Consequently, Expedited Motion for Partial and as set forth in the accompanying Order, Summary Judgment (ECF No. 22) Summary Judgment (ECF DATE: November 25, 2019 Plaintiff’s Motion for is GRANTED, and Defendant’s No. 32) is DENIED. Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge 118