USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 PANEL DECISION ISSUED FEBRUARY 28, 2020 Page 1 of 5 No. 19-5331 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff-Appellee, v. DONALD F. MCGAHN, II, Defendant-Appellant. On Appeal from the U.S. District Court for the District of Columbia (No. 19-cv-2379) (Hon. Ketanji Brown Jackson, District Judge) MOTION FOR INVITATION TO FILE BRIEF OF AMICI CURIAE BY FORMER MEMBERS OF CONGRESS AND FORMER EXECUTIVE BRANCH OFFICIALS IN SUPPORT OF REHEARING Justin Florence Jamila G. Benkato* Cameron O. Kistler Justin Vail** PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, N.W. Suite 163 Washington, DC 20006 (202) 579-4582 justin.florence@protectdemocracy.org *Admitted to practice in California, not D.C.; practice consistent with D.C. App. R. 49(c)(3). ** Admitted to practice in Missouri, not D.C.; practice consistent with D.C. App. R. 49(c)(3). Steven A. Hirsch PROTECT DEMOCRACY PROJECT 2120 University Avenue Berkeley, California 94704 stephen.hirsch@protectdemocracy.org (Page 1 of Total) Irvin B. Nathan John A. Freedman Andrew T. Tutt Kaitlin Konkel Samuel F. Callahan ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 john.freedman@arnoldporter.com Ben Berwick PROTECT DEMOCRACY PROJECT 15 Main St., Suite 312 Watertown, MA 02472 (202) 579-4582 ben.berwick@protectdemocracy.org USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 2 of 5 Proposed amici curiae—former Members of Congress and former executive officials—respectfully request an invitation from this Court, pursuant to Federal Rule of Appellate Procedure 29(b)(2) and Circuit Rules 29(b) and 35(f), to file the attached brief as amici in support of the petition for panel rehearing and/or rehearing en banc. See Ex. 1 (proposed brief). The Appellee Committee consents to the motion; the Appellant takes no position on the motion. Amici hope that the Court will benefit from their unique perspective and extensive expertise. Many are former Senators and Representatives from both sides of the aisle. During their time in office, they participated in the accommodations process and gained an intimate understanding of why it is so crucial for Congress to be able to obtain information from the Executive Branch. Other amici served as high-ranking Executive Branch officials. So they have experience receiving congressional demands for information and have seen the accommodations process from the other side. Accordingly, amici suggest that, given their vast collective experience with the congressional accommodations process, they can help inform the Court’s understanding of the accommodations process as well as the constitutional stakes at issue here. (Page 2 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 3 of 5 In particular, amici share a deep concern that the panel’s decision will cripple Congress’s ability to obtain the information it needs in order to hold the executive accountable for overreach and lawbreaking. They further fear that the panel decision will destabilize the constitutional checks and balances our Founders fought so hard to establish—with potentially devastating consequences for the long-term stability of our democracy. Amici therefore request an invitation to submit the attached brief urging the Court to rehear this case en banc and to hold that the subpoena at issue is valid and enforceable in court. (Page 3 of Total) USCA Case #19-5331 Document #1833132 Dated: March 12, 2020 Justin Florence Jamila G. Benkato* Cameron O. Kistler Justin Vail** PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, N.W. Suite 163 Washington, DC 20006 (202) 579-4582 justin.florence@protectdemocracy.org *Admitted to practice in California, not D.C.; practice consistent with D.C. App. R. 49(c)(3). ** Admitted to practice in Missouri, not D.C.; practice consistent with D.C. App. R. 49(c)(3). Steven A. Hirsch PROTECT DEMOCRACY PROJECT 2120 University Avenue Berkeley, California 94704 stephen.hirsch@protectdemocracy.org (Page 4 of Total) Filed: 03/12/2020 Page 4 of 5 Respectfully submitted, /s/ John A. Freedman____ Irvin B. Nathan John A. Freedman Andrew T. Tutt Kaitlin Konkel Samuel F. Callahan ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 john.freedman@arnoldporter.com Ben Berwick PROTECT DEMOCRACY PROJECT 15 Main St., Suite 312 Watertown, MA 02472 (202) 579-4582 ben.berwick@protectdemocracy.org USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify, pursuant to Fed. R. App. P. 25(d) and Cir. R. 25, that on March 12, 2019, the foregoing motion was electronically filed with the Clerk of the Court using the CM/ECF system, which will send a notification to the attorneys of record in this matter who are registered with the Court’s CM/ECF system. /s/ John A. Freedman John A. Freedman (Page 5 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 PANEL DECISION ISSUED FEBRUARY 28, 2020 Page 1 of 31 No. 19-5331 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff-Appellee, v. DONALD F. MCGAHN, II, Defendant-Appellant. On Appeal From the U.S. District Court for the District of Columbia (No. 19-cv-2379) (Hon. Ketanji Brown Jackson, District Judge) BRIEF OF FORMER MEMBERS OF CONGRESS AND FORMER EXECUTIVE BRANCH OFFICIALS AS AMICI CURIAE IN SUPPORT OF REHEARING EN BANC Justin Florence Jamila G. Benkato* Cameron O. Kistler Justin Vail** PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, N.W. Suite 163 Washington, DC 20006 (202) 579-4582 justin.florence@protectdemocracy.org *Admitted to practice in California, not D.C.; practice consistent with D.C. App. R. 49(c)(3). ** Admitted to practice in Missouri, not D.C.; practice consistent with D.C. App. R. 49(c)(3). Steven A. Hirsch PROTECT DEMOCRACY PROJECT 2120 University Avenue Berkeley, California 94704 stephen.hirsch@protectdemocracy.org (Page 6 of Total) Irvin B. Nathan John A. Freedman Andrew T. Tutt Kaitlin Konkel Samuel F. Callahan ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 john.freedman@arnoldporter.com Ben Berwick PROTECT DEMOCRACY PROJECT 15 Main St., Suite 312 Watertown, MA 02472 (202) 579-4582 ben.berwick@protectdemocracy.org USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 2 of 31 CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES PURSUANT TO CIRCUIT RULE 28(a)(1) A. Parties and Amici. All parties who appeared before the district court appear in Plaintiff-Appellee’s brief. The parties appearing in this Court include those listed in Plaintiff-Appellee’s brief. A full list of amici curiae is included as an appendix to this brief. Amici curiae are not corporate entities for which a corporate disclosure statement is required pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rules 27(a)(4) and 28(a)(1)(A). B. Rulings Under Review. An accurate reference to the ruling at issue appears in Plaintiff-Appellee’s brief. C. Related Cases. Amici are not aware of any related cases within the meaning of Circuit Rule 28(a)(1)(C). /s/ John A. Freedman John A. Freedman i (Page 7 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 3 of 31 STATEMENT REGARDING CONSENT TO FILE AND SEPARATE BRIEFING The Appellee Committee consents to the accompanying motion requesting an invitation from this Court to file this brief in support of the petition for panel rehearing and/or rehearing en banc; the Appellant takes no position on the motion. Pursuant to Circuit Rule 29(d), amici certify that a separate brief is necessary to provide the unique perspective of a large, bipartisan group of former legislators and Executive Branch officials having vast collective experience with the congressional subpoena process. /s/ John A. Freedman John A. Freedman STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTIONS No party’s counsel authored this brief in whole or in part. Nor did any party or party’s counsel, or any other person other than amici curiae, contribute money that was intended to fund preparing or submitting this brief. /s/ John A. Freedman John A. Freedman ii (Page 8 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 4 of 31 TABLE OF CONTENTS Page CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES PURSUANT TO CIRCUIT RULE 28(A)(1) ..................................... I STATEMENT REGARDING CONSENT TO FILE AND SEPARATE BRIEFING ....................................................................................... II STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTIONS.......................................................................... II TABLE OF AUTHORITIES .................................................................... IV INTEREST OF AMICI CURIAE............................................................... 1 STATUTES AND REGULATIONS .......................................................... 2 ARGUMENT ............................................................................................. 2 I. The availability of judicial enforcement is necessary to ensure Congress’s ability to check the Executive Branch while protecting important executive concerns. ......................................................... 5 II. Congress lacks other effective mechanisms to force the Executive Branch to comply with a subpoena. ................................................. 9 CONCLUSION ........................................................................................ 14 CERTIFICATE OF COMPLIANCE ........................................................ 15 CERTIFICATE OF SERVICE................................................................. 16 APPENDIX—FULL LIST OF AMICI CURIAE ..................................... 17 iii (Page 9 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 5 of 31 TABLE OF AUTHORITIES Page(s) Cases Cohens v. Virginia, 19 U.S. 264 (1821) ................................................................................. 9 Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) ................................................... 6, 13 Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013) ........................................................... 6 Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) ............................................................................... 8 Marbury v. Madison, 5 U.S. 137 (1803) ................................................................................... 4 McGrain v. Daugherty, 273 U.S. 135 (1927) ............................................................................... 8 Quinn v. United States, 349 U.S. 155 (1955) ............................................................................... 8 Sen. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) ............................................................... 6 Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69 (2013) ................................................................................. 9 United States v. AT&T Co., 551 F.2d 384 (D.C. Cir. 1976) ............................................................... 6 United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (Marshall, C.J.) ................................. 8 Watkins v. United States, 354 U.S. 178 (1957) ............................................................................. 12 iv (Page 10 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 6 of 31 Legislative and Executive Materials 116 Cong. Rec. S287 (Jan. 21, 2020) ....................................................... 10 Cong. Globe, 27th Cong., 2d Sess. 580 (1842)......................................... 10 Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984) ........................................................................ 6 Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68 (1986) .................................................................... 5, 6 Other Authorities The Federalist No. 51 (Madison) (C. Rossiter ed. 1961) ........................... 7 John E. Bies, Constitutional Hardball and Congress’s Oversight Authority, Lawfare (April 27, 2019), https://www.lawfareblog.com/ constitutional-hardball-and-congresss-oversight-authority ................ 3 Jeremy Diamond & Allie Malloy, Trump at War With Democrats: “We’re fighting all the subpoenas,” CNN (Apr. 24, 2019), https://www.cnn.com/2019/04/24/politics/donaldtrump-fight-subpoenas-don-mcgahn-ridiculous/index.html ................ 6 Louis Fisher, Cong. Res. Servs., Congressional Investigations: Subpoenas and the Contempt Power 1 (2003) .................................. 2, 3 Brian Naylor, An Acting Government for the Trump Administration, NPR (April 9, 2019), https://n.pr/39JnMcb ............. 13 Charlie Savage, Trump Vows Stonewall of “All” House Subpoenas, Setting Up Fight Over Powers, N.Y. Times (April 24, 2019), https://www.nytimes.com/2019/04/24/ us/politics/donald-trump-subpoenas.html. ........................................... 4 Stephen W. Stathis, Executive Cooperation: Presidential Recognition of the Investigative Authority of Congress and the Courts, 3 J. L. & Pol. 183 (1986)..................................................... 3 v (Page 11 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 7 of 31 INTEREST OF AMICI CURIAE Amici curiae, including a large bipartisan group of former Senators and Representatives, are deeply concerned that the panel decision claiming a constitutional inability to hear the House’s subpoena enforcement action threatens to eliminate congressional oversight of the Executive Branch and upset the careful system of checks and balances on which our Constitution depends. If courts are unavailable as a last resort to resolve a question of law, then the Executive will have no reason to engage in the accommodations process which has long governed congressional requests for information from the Executive to carry out Congress’s oversight and legislative functions. Joining this brief is a bipartisan group of individuals—Bill Cohen, Leon Panetta, and Dan Glickman—who have served both in Congress and in top Cabinet positions, as well as a bipartisan group of high-ranking Executive Branch amici who have seen the accommodations process from the other side. All amici agree that the panel decision invites a seismic shift in the relationship between the Legislative and Executive Branches. The decision will effectively end the process of accommodations between the political branches by removing the Executive’s willingness to compro- 1 (Page 12 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 8 of 31 mise with Congress. All amici further agree that, once that happens, Congress inevitably will be starved of the information it needs to effectively check the Executive Branch, including the very checks to which the panel opinion would require Congress to resort in order to enforce subpoenas. Accordingly, amici urge the full Court to rehear this case and to preserve Congress’s ability to effectively check executive overreach and lawbreaking by holding that the subpoena here is valid and enforceable. STATUTES AND REGULATIONS All pertinent materials are contained in Plaintiff-Appellee’s addendum. ARGUMENT For decades, through presidencies and Congresses of both parties, the accommodations process—though often messy and imperfect—has fundamentally worked. Congress has been able to request and negotiate with the Executive Branch for documents and testimony, backed by the availability of subpoenas, contempt, and litigation if the executive branch failed to reasonably negotiate. See Louis Fisher, Cong. Res. Servs., Congressional Investigations: Subpoenas and the Contempt Pow- 2 (Page 13 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 9 of 31 er 1 (2003). Since the early nineteenth century, the Executive Branch has recognized the constitutional legitimacy of congressional requests for information and has generally cooperated with such requests in good faith, while still preserving its prerogative to assert executive privilege on an item-by-item basis. See Stephen W. Stathis, Executive Cooperation: Presidential Recognition of the Investigative Authority of Congress and the Courts, 3 J. L. & Pol. 183, 188 (1986) (citing “hundreds of instances since 1789 when a chief executive has willingly responded to requests for records in the custody of the Executive Branch”). The result has generally been “an accommodation that meets the needs of both branches” and provides members of Congress “with the information required for legislative needs.” Fisher, supra, at 1. Unfortunately, the current administration has repudiated this historical practice and has stopped participating in the accommodations process. See, e.g., John E. Bies, Constitutional Hardball and Congress’s Oversight Authority, Lawfare (April 27, 2019).1 Instead, it has routinely stonewalled congressional oversight requests, declaring itself absolutely immune from congressional requests for information without even inhttps://www.lawfareblog.com/constitutional-hardball-and-congresssoversight-authority. 1 3 (Page 14 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 10 of 31 voking executive privilege. See, e.g., Charlie Savage, Trump Vows Stonewall of “All” House Subpoenas, Setting Up Fight Over Powers, N.Y. Times (April 24, 2019).2 The panel’s decision acquiesces in this power grab and “effectively dismantles the accommodations process” by diminishing any incentive that the “Executive Branch might have to reach an accommodation.” Slip. Op. 24-25 (Rogers, J., dissenting). Amici urge the full Court to consider this case of extraordinary national importance. They submit this brief to make two simple points based on their experience with the accommodations process. First, that process has worked for decades in large part because both political branches have understood that Congress can turn to the courts as a last resort to decide questions of law, consistent with the duty of the judiciary “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). If the judiciary abdicates from this duty, the Executive Branch will have succeeded in effectively neutralizing the accommodations and congressional-oversight processes, severely undermining Congress’s ability to check the Executive and weakening our system of checks and balances. Second, the other congressional powers that the panel sughttps://www.nytimes.com/2019/04/24/us/politics/donald-trumpsubpoenas.html. 2 4 (Page 15 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 11 of 31 gests that Congress could use instead—such as impeachment, the power of the purse, lawmaking, or appointments—are impractical, unwieldy, and unlikely to work effectively as a check on executive power. In short, the panel opinion accedes too readily in this Administration’s attempt to dismantle a key constitutional check on the Executive branch—one that historically has served to ensure that the President and other Executive Branch officials, high and low, are not above the law. Amici urge the full Court to rehear this matter and to reverse the panel so as to prevent the collapse of the accommodations process and ensure continued vitality of the separation of powers. I. The availability of judicial enforcement is necessary to ensure Congress’s ability to check the Executive Branch while protecting important executive concerns. Amici have seen from both sides the compromise and negotiation inherent in congressional investigations. Based on their experience, amici know that this accommodations process works in large part because Congress and the Executive have understood that the courts will provide a backstop if the Executive unreasonably fails to comply with legitimate demands for information. See Response to Congressional Requests for Information Regarding Decisions Made Under the Independ- 5 (Page 16 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 12 of 31 ent Counsel Act, 10 Op. O.L.C. 68, 83 (1986); Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 137 (1984). This assumption has been confirmed by the instances in which Congress has gone to court to enforce subpoenas. See, e.g., Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013); Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); see also United States v. AT&T Co., 551 F.2d 384 (D.C. Cir. 1976); Sen. Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). If allowed to stand, the panel’s decision will destroy the accommodations process and encourage yet more executive stonewalling— stonewalling that already threatens to become the norm. See, e.g., Jeremy Diamond & Allie Malloy, Trump at War With Democrats: “We’re fighting all the subpoenas,” CNN (Apr. 24, 2019).3 The current administration will interpret the panel’s decision as a carte blanche invitation to refuse to share any information with Congress. Congress’s ability to conduct core legislative functions—including oversight and lawmaking—will be severely hamstrung. https://www.cnn.com/2019/04/24/politics/donald-trump-fightsubpoenas-don-mcgahn-ridiculous/index.html. 3 6 (Page 17 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 13 of 31 Perhaps future administrations will recognize Congress’s legitimate constitutional interests and return to the bargaining table. But amici fear that the panel decision opened a Pandora’s box not so easily closed. When faced with a decision to share information with Congress that is potentially embarrassing—or worse—or to continue this administration’s court-blessed obstinance, future administrations may well choose the latter. Indeed, the Framers anticipated that each branch would jealously guard the powers it held. Ambition counteracting ambition is core to our constitutional design, but it is possible only when each branch has the “necessary constitutional means and personal motives to resist encroachments of the others.” The Federalist No. 51, at 319 (Madison) (C. Rossiter ed. 1961). When the federal courts close their doors to Congress and decline to resolve disputed issues of law in the face of executive intransigence, it spells the end of Congress’s powers of inquiry. “Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 505 (1975). 7 (Page 18 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 14 of 31 It is hard to overstate the consequences of congressional inability to obtain information from the Executive Branch. Congress’s ability to exercise most of its constitutional powers depends on its powers of inquiry. “Without the power to investigate—including…the authority to compel testimony, either through its own processes or through judicial trial—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.” Quinn v. United States, 349 U.S. 155, 160-61 (1955); see also McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“[T]he power of inquiry” along with the “process to enforce it” is an “essential” element of Congress’s execution of its constitutional powers.). The panel decision will weaken Congress’s ability to counterbalance executive power and hasten the continued transformation of our government from the representative democracy that the founders sought into something more like the monarchy they fought a war to escape. Cf. United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, C.J.) (under the English Constitution, the King could “do no wrong,” “no blame [could] be imputed to him,” and therefore he could not be served with process). 8 (Page 19 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 15 of 31 In this case, the legal issue that divides the parties is whether former high-level White House officials are “absolutely immune” from congressional subpoenas. That is an issue for a court to resolve, as the district court here did. Courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821)). Courts routinely resolve subpoena disputes. This subpoena should be no different. II. Congress lacks other effective mechanisms to force the Executive Branch to comply with a subpoena. The panel decision seeks to minimize its impact by suggesting that Congress has other mechanisms for enforcing a subpoena. But as Judge Rogers’s dissent explains, these other mechanisms are “impracticable.” Slip Op. 17. The Executive Branch itself has recognized that court enforcement is Congress’s only realistic method for ensuring compliance with subpoenas. Id. at 17-18 (discussing OLC opinions). In fact, many of the panel’s proffered enforcement mechanisms depend on the very congressional investigative powers that the panel decision undermines. So even if some of those alternative mechanisms were realistic prior to the panel’s decision—which amici (and OLC) doubt—they are 9 (Page 20 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 16 of 31 much less so now that the panel has stripped Congress of the leverage it once wielded in negotiations with the Executive. Take, for example, the power to impeach. As John Quincy Adams explained, it would make a “mockery” of the House’s impeachment power for the House to have the power to impeach but not “the power to obtain the evidence and proofs on which their impeachment was based.” Cong. Globe, 27th Cong., 2d Sess. 580 (1842). Thus, it “was of very great importance to the future history of this country” that the House “necessarily” have “the power to call for persons and papers.” Id.4 Like the impeachment power, the power of the purse depends in part on Congress’s power of inquiry. What good are legal restrictions Congress places on the President’s ability to spend money if Congress Indeed, this administration has, at times, taken the position that the method by which Congress should seek to enforce subpoenas is not through impeachment, but through court enforcement. As the Court knows, the House impeached President Trump in part for obstruction of Congress. President Trump’s defense to that article of impeachment was to argue that the House should have gone to court to seek to force compliance with its subpoenas after the President directed all who received them to disobey them. See 116 Cong. Rec. S287, S384 (Jan. 21, 2020) (Jay Sekulow, counsel to President Trump) (“So take Article III of the United States Constitution and remove it. We’re acting as if the Courts are an improper venue to determine constitutional issues of this magnitude? That is why we have courts. That is why we have a federal judiciary.”). 4 10 (Page 21 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 17 of 31 has no power to investigate whether the President is in fact observing those restrictions? What incentive does the President have to follow spending restrictions if the House cannot investigate noncompliance to prosecute an impeachment case? As a practical matter, the only effective way to use the power of the purse to elicit information guarded by the Executive would be for Congress to categorically refuse appropriations until the Executive turned over the requested information. But amici’s government service convinces them that the threat of withholding such across-the-board funds will be far too blunt, and too detrimental to our nation, to justify wielding in service of an oversight dispute. In the first place, Congress can only exercise that tool every so often in conjunction with the annual appropriations process. And in at least some instances in which Congress could theoretically use its power to shut down the government to exert leverage, political realities such as wars, pandemics, and financial meltdowns—times, incidentally, at which there is usually the greatest need for effective congressional oversight—will make Congress’s power to shut down the government practically impossible to exercise. More important, Congress shouldn’t have to 11 (Page 22 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 18 of 31 use the United States’ credit rating, retirees’ social-security checks, and food-stamp recipients’ dinners to obtain information that it has had the authority to access since the founding and that has been universally acknowledged to be essential to “effective and honest” government. Watkins v. United States, 354 U.S. 178, 194-95 (1957). Congress’s legislative and confirmation levers are no better substitutes. For Congress to use legislation as leverage in an investigative dispute, (1) it must be considering legislation that the President sees as an urgent priority, and (2) Members of Congress with the power to impact progress on that legislation must agree that the national interest— and their own political interest—is better served by getting information from the Executive than by moving the legislation forward. The circumstances in which these two conditions are both present will not be nearly as frequent as those in which congressional committees request information that the President does not want to turn over. The confirmation power is even less useful in extracting information from a resistant Executive. It is of course of no use to the House. 12 (Page 23 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 19 of 31 And it is of minimal use to the Senate when the President routinely staffs his administration with acting appointees.5 So where does the panel opinion leave Congress? Perhaps it could try to use its bully pulpit against the Executive, see Slip Op. 32, or maybe even try to invoke its inherent contempt powers to arrest delinquent officers. Neither is a promising prospect—particularly inherent contempt. Congress’s contempt powers have fallen into disuse, and “imprisoning current (and even former) senior presidential advisors and prosecuting them before the House” risks a potential “stand-off between the Sergeant–at–Arms and executive branch law enforcement officials,” potential violent confrontations, and “a grave risk of precipitating a constitutional crisis.” Miers, 558 F. Supp. 2d at 92. That, in turn, should ring constitutional alarm bells. Congress shouldn’t be required to hold the people’s business hostage in order to get President Trump to do what other presidents for centuries have recognized as essential for our democracy. Our Constitution does not and should not place Congress between the Scylla of placing the President See, e.g., Brian Naylor, An Acting Government for the Trump Administration, NPR (April 9, 2019), https://n.pr/39JnMcb (noting President Trump’s remark that “I like ‘acting’ . . . . It gives me more flexibility.”). 5 13 (Page 24 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 20 of 31 above the law by turning a blind eye to executive lawbreaking and the Charybdis of making agencies go unfunded and headless. CONCLUSION The Court should grant rehearing en banc, reverse the panel decision, and hold the subpoena here valid and enforceable. Dated: March 12, 2020 Justin Florence Jamila G. Benkato* Cameron O. Kistler Justin Vail** PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, N.W. Suite 163 Washington, DC 20006 (202) 579-4582 justin.florence@protectdemocracy.org *Admitted to practice in California, not D.C.; practice consistent with D.C. App. R. 49(c)(3). ** Admitted to practice in Missouri, not D.C.; practice consistent with D.C. App. R. 49(c)(3). Steven A. Hirsch PROTECT DEMOCRACY PROJECT 2120 University Avenue Berkeley, California 94704 stephen.hirsch@protectdemocracy.org 14 (Page 25 of Total) Respectfully submitted, /s/ John A. Freedman____ Irvin B. Nathan John A. Freedman Andrew T. Tutt Kaitlin Konkel Samuel F. Callahan ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 john.freedman@arnoldporter.com Ben Berwick PROTECT DEMOCRACY PROJECT 15 Main St., Suite 312 Watertown, MA 02472 (202) 579-4582 ben.berwick@protectdemocracy.org USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 21 of 31 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), I hereby certify that this brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 2,583 words, excluding the parts exempted by Fed. R. App. P. 32(f) and Cir. R. 32(e)(1). I further certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief was prepared in 14-point Century Schoolbook font using Microsoft Word. /s/ John A. Freedman John A. Freedman 15 (Page 26 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 22 of 31 CERTIFICATE OF SERVICE I hereby certify, pursuant to Fed. R. App. P. 25(d) and Cir. R. 25, that on March 12, 2019, the foregoing corrected brief was electronically filed with the Clerk of the Court using the CM/ECF system, which will send a notification to the attorneys of record in this matter who are registered with the Court’s CM/ECF system. /s/ John A. Freedman John A. Freedman 16 (Page 27 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 23 of 31 APPENDIX—FULL LIST OF AMICI CURIAE Thomas Andrews U.S. House of Representatives (D-Maine), 1991–1995 William Baer U.S. Acting Associate Attorney General, 2016–2017 U.S. Assistant Attorney General for the Antitrust Division, 2013–2016 Brian Baird U.S. House of Representatives (D-Washington), 1999–2011 Michael Barnes U.S. House of Representatives (D-Maryland), 1979–1987 Steve Bartlett U.S. House of Representatives (R-Texas), 1983–1991 Douglas Bereuter U.S. House of Representatives (R-Nebraska), 1979–2004 Howard Berman U.S. House of Representatives (D-California), 1983–2013 Rick Boucher U.S. House of Representatives (D-Virginia), 1983–2011 Barbara Boxer U.S. Senate (D-California), 1993–2017 U.S. House of Representatives (D-California), 1983–1993 Bruce Braley U.S. House of Representatives (D-Iowa), 2007–2015 Amb. Carol Moseley Braun U.S. Senate (D-Illinois), 1993–1999 17 (Page 28 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 24 of 31 Roland Burris U.S. Senate (D-Illinois), 2009–2010 Lois Capps U.S. House of Representatives (D-California), 1997–2017 Jean Carnahan U.S. Senate (D-Missouri), 2001–2002 Robert Carr U.S. House of Representatives (D-Michigan), 1975–1981, 1983–1995 Rod Chandler U.S. House of Representatives (R-Washington), 1983–1993 Linda Chavez White House Director of Public Liaison, 1985 Chairman, National Commission on Migrant Education, 1988–1992 Bill Cohen U.S. Secretary of Defense, 1997–2001 U.S. Senate (R-Maine), 1979–1997 U.S. House of Representatives (R-Maine), 1973–1979 James Cole U.S. Deputy Attorney General, 2010–2015 Tom Coleman U.S. House of Representatives (R-Missouri), 1976–1993 Jerry Costello U.S. House of Representatives (D-Illinois), 1987–2013 Mark S. Critz U.S. House of Representatives (D-Pennsylvania), 2010–2013 Joe Crowley U.S. House of Representatives (D-New York), 1999–2019 18 (Page 29 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Tom Daschle U.S. Senate (D-South Dakota), 1987–2005 U.S. House of Representatives (D-South Dakota), 1979–1987 Lincoln Davis U.S. House of Representatives (D-Tennessee), 2003–2011 Mark Dayton U.S. Senate (D-Minnesota), 2001–2007 John W. Dean White House Counsel, 1970–1973 Associate Deputy Attorney General, 1969–1970 Dennis DeConcini U.S. Senate (D-Arizona), 1977–1995 Chris Dodd U.S. Senate (D-Connecticut), 1981–2001 U.S. House of Representatives (D-Connecticut),1975–1981 Byron Dorgan U.S. Senate (D-North Dakota), 1992–2011 U.S. House of Representatives (D-North Dakota), 1981–1992 Steve Driehaus U.S. House of Representatives (D-Ohio), 2009–2011 David Durenberger U.S. Senate (R-Minnesota), 1978–1995 Donna Edwards U.S. House of Representatives (D-Maryland), 2008–2017 Mickey Edwards U.S. House of Representatives (R-Oklahoma), 1977–1993 19 (Page 30 of Total) Page 25 of 31 USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 26 of 31 Sam Farr U.S. House of Representatives (D-California), 1993–2013 Vic Fazio U.S. House of Representatives (D-California), 1979–1999 Emil Frankel Assistant Secretary for Transportation Policy, U.S. Department of Transportation, 2002–2005 Martin Frost U.S. House of Representatives (D-Texas), 1979–2005 Richard Gephardt U.S. House of Representatives (D-Missouri), 1977–2005 Stuart M. Gerson Acting Attorney General of the United States, 1993 Assistant Attorney General, Civil Division, 1989– 1993 Wayne Gilchrest U.S. House of Representatives (R-Maryland), 1991–2009 Dan Glickman U.S. House of Representatives (D-Kansas), 1977–1995 Michael Greenberger U.S. Principal Deputy Associate Attorney General, 1999–2001 Counselor to the U.S. Attorney General, 1999 Jimmy Gurulé Assistant Attorney General, Department of Justice, 1990–1992 Assistant U.S. Attorney, 1985–1989 Under Secretary for Enforcement, Department of the Treasury, 2001–2003 20 (Page 31 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 27 of 31 Tom Harkin U.S. Senate (D-Iowa), 1985–2015 U.S. House of Representatives (D-Iowa), 1975–1985 Paul Hodes U.S. House of Representatives (D-New Hampshire), 2007–2011 Elizabeth Holtzman U.S. House of Representatives (D-New York), 1973–1981 Gordon J. Humphrey U.S. Senate (R-New Hampshire), 1979–1990 Bob Inglis U.S. House of Representatives (R-South Carolina), 1993–1999, 2005–2011 Steve Israel U.S. House of Representatives (D-New York), 2001–2017 J. Bennett Johnston U.S. Senate (D-Louisiana), 1972–1997 David Jolly U.S. House of Representatives (R-Florida), 2014–2017 Steve Kagen U.S. House of Representatives (D-Wisconsin), 2007–2011 Leon Kellner U.S. Attorney for the Southern District of Florida, 1985–1988 Bob Kerrey U.S. Senate (D-Nebraska), 1989–2001 Mary Jo Kilroy U.S. House of Representatives (D-Ohio), 2009–2011 21 (Page 32 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 28 of 31 Paul G. Kirk, Jr. U.S. Senate (D-Massachusetts), 2009–2010 Ron Klein U.S. House of Representatives (D-Florida), 2007–2011 James Kolbe U.S. House of Representatives (R-Arizona), 1985– 2007 Mike Kopetski U.S. House of Representatives (D-Oregon), 1991–1995 Bob Krueger U.S. Senate (D-Texas), 1993 U.S. House of Representatives (D-Texas), 1975–1979 Steven T. Kuykendall U.S. House of Representatives (R-California), 1999– 2001 Larry LaRocco U.S. House of Representatives (D-Idaho), 1991–1995 James Leach U.S. House of Representatives (R-Iowa), 1977–2007 John LeBoutillier U.S. House of Representatives (R-New York), 1981–1983 Mel Levine U.S. House of Representatives (D-California), 1983–1993 Matthew McHugh U.S. House of Representatives (D-New York), 1975–1993 John McKay U.S. Attorney for the Western District of Washington, 2001–2007 22 (Page 33 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 29 of 31 Tom McMillen U.S. House of Representatives (D-Maryland), 1987–1993 Brad Miller U.S. House of Representatives (D-North Carolina), 2003–2013 Walt Minnick U.S. House of Representatives (D-Idaho), 2009–2011 Connie Morella U.S. House of Representatives (R-Maryland), 1987–2003 Leon Panetta U.S. Secretary of Defense, 2011–2013 Director, Central Intelligence Agency, 2009–2011 White House Chief of Staff, 1994–1997 Director, Office of Management and Budget, 1993–1994 U.S. House of Representatives (D-California), 1977–1993 Earl Pomeroy U.S. House of Representatives (D-North Dakota), 1993–2011 Trevor Potter Chair, Federal Election Commission, 1994 Commissioner, Federal Election Commission, 1991–1995 Silvestre Reyes U.S. House of Representatives (D-Texas), 1997–2013 Max Sandlin U.S. House of Representatives (D-Texas), 1997–2005 James Sasser U.S. Senate (D-Tennessee), 1977–1995 Claudine Schneider U.S. House of Representatives (R-Rhode Island), 1981–1991 23 (Page 34 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 30 of 31 Pat Schroeder U.S. House of Representatives (D-Colorado), 1973–1997 Allyson Schwartz U.S. House of Representatives (D-Pennsylvania), 2005–2015 Christopher Shays U.S. House of Representatives (R-Connecticut), 1987–2009 David Skaggs U.S. House of Representatives (D-Colorado), 1987–1999 Peter Smith U.S. House of Representatives (R-Vermont), 1989–1991 Alan Steelman U.S. House of Representatives (R-Texas), 1973–1977 Charlie Stenholm U.S. House of Representatives (D-Texas), 1979–2005 Bart Stupak U.S. House of Representatives (D-Michigan), 1993–2011 John Tierney U.S. House of Representatives (D-Massachusetts), 1997–2015 Jim Turner U.S. House of Representatives (D-Texas), 1997–2005 Henry Waxman U.S. House of Representatives (D-California), 1975–2015 Kimberly L. Wehle Assistant U.S. Attorney, Civil Division, 1997–1999 Associate Independent Counsel, Whitewater Investigation, 1996–1997 24 (Page 35 of Total) USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Robert Weiner Senior Counsel in White House, 1997–1998 Christie Todd Whitman Administrator, Environmental Protection Agency, 2001–2003 Lawrence Wilkerson Chief of Staff to U.S. Secretary of State, 2002–2005 Dick Zimmer U.S. House of Representatives (R-New Jersey), 1991–1997 25 (Page 36 of Total) Page 31 of 31