USCA Case #19-5331

Document #1859039

Filed: 08/31/2020

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 31, 2020
No. 19-5331
COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE
OF REPRESENTATIVES,
APPELLEE
v.
DONALD F. MCGAHN, II,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02379)

Hashim M. Mooppan, Deputy Assistant Attorney General,
U.S. Department of Justice, and Mark R. Freeman, Michael S.
Raab, and Martin Totaro, Attorneys, were on the briefs for
appellant.
Douglas N. Letter, General Counsel, U.S. House of
Representatives, Todd B. Tatelman, Deputy General Counsel,
Megan Barbero and Josephine Morse, Associate General
Counsel, Adam A. Grogg and William E. Havemann, Assistant
General Counsel, Jonathan B. Schwartz, Attorney, and Annie
L. Owens were on the brief for appellee.

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Steven A. Hirsch, Justin Florence, Jamila G. Benkato, and
Cameron O. Kistler were on the brief for amici curiae
Republican Legal Experts, et al. in support of plaintiffappellee.
Before: HENDERSON, ROGERS, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge ROGERS.
GRIFFITH, Circuit Judge: In Committee on the Judiciary v.
McGahn, 2020 WL 4556761 (Aug. 7, 2020), the en banc court
held that the Committee on the Judiciary of the House of
Representatives has Article III standing to seek judicial
enforcement of a subpoena issued to former White House
Counsel Donald F. McGahn, II. Id. at *15. It remanded the case
to this three-judge panel to consider the remaining issues,
including whether the Committee has a cause of action to
enforce its subpoena and, if so, whether McGahn must testify
despite the Executive Branch’s assertion of absolute
testimonial immunity. Id. We have no occasion to address the
immunity argument because we conclude that the Committee
lacks a cause of action. Accordingly, the case must be
dismissed.
I
The en banc court held that the Committee has Article III
standing, but the Committee “also need[s] a cause of action to
prosecute” its case in federal court. Make the Road N.Y. v. Wolf,
962 F.3d 612, 631 (D.C. Cir. 2020). Here, the Committee
argues that it has an implied cause of action under Article I,
that it can invoke the traditional power of courts of equity to

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enjoin unlawful executive action, and that the Declaratory
Judgment Act provides a separate basis for this suit. We
disagree.
A
Start with Article I. The Committee argues that it is
“entitled under Article I to seek equitable relief to enforce a
subpoena . . . issued in furtherance of its constitutional power
of inquiry.” Committee Panel Br. 34 (internal quotation marks
omitted). But time and again, the Supreme Court has warned
federal courts to hesitate before finding implied causes of
action—whether in a congressional statute or in the
Constitution. See, e.g., Comcast Corp. v. Nat’l Ass’n of African
Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020); Hernandez
v. Mesa, 140 S. Ct. 735, 741-43 (2020); Jesner v. Arab Bank,
PLC, 138 S. Ct. 1386, 1402 (2018); Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017); Alexander v. Sandoval, 532 U.S. 275, 28687 (2001). “When a party seeks to assert an implied cause of
action under the Constitution itself, . . . separation-of-powers
principles are or should be central to the analysis,” and usually
Congress “should decide” whether to authorize a lawsuit.
Ziglar, 137 S. Ct. at 1857 (internal quotation marks omitted).
In this case, Congress has declined to authorize lawsuits
like the Committee’s twice over. First, Congress has granted an
express cause of action to the Senate—but not to the House.
See 2 U.S.C. § 288d; 28 U.S.C. § 1365(b). Second, the Senate
statute expressly excludes suits that involve executive-branch
assertions of “governmental privilege.” 28 U.S.C. § 1365(a).
The expression of one thing implies the exclusion of the other,
and authorizing the Committee to bring its lawsuit would
conflict with two separate statutory limitations on civil suits to
enforce congressional subpoenas. When determining whether
to “recognize any causes of action not expressly created by

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Congress,” “our watchword is caution,” Hernandez, 140 S. Ct.
at 742, and we should not ignore Congress’s carefully drafted
limitations on its authority to sue to enforce a subpoena.
The Committee next suggests that—even if Article I alone
doesn’t provide a cause of action—the court may exercise its
“traditional equitable powers” to grant relief. Ziglar, 137 S. Ct.
at 1856. But even those equitable powers remain “subject to
express and implied statutory limitations,” Armstrong v.
Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015), and are
further limited to relief that was “traditionally accorded by
courts of equity,” Grupo Mexicano de Desarrollo S.A. v. All.
Bond Fund, Inc., 527 U.S. 308, 319 (1999). Again, “implied
statutory limitations” foreclose suits by the House and suits that
implicate a governmental privilege; this one checks both boxes,
so Congress itself has precluded us from granting the requested
relief to the Committee.
In any event, there is also nothing “traditional” about the
Committee’s claim. The Committee cannot point to a single
example in which a chamber of Congress brought suit for
injunctive relief against the Executive Branch prior to the
1970s. True enough, the en banc court rejected McGahn’s
argument that “federal courts have not historically entertained
congressional subpoena enforcement lawsuits,” but the full
court also recognized the “relative recency” of lawsuits to
enforce subpoenas. McGahn, 2020 WL 4556761, at *14. When
determining the scope of our equitable authority, however,
“relatively recent” history isn’t enough. In Grupo Mexicano,
the Supreme Court explained that we “must ask whether the
relief” that the Committee requests “was traditionally accorded
by courts of equity.” 527 U.S. at 319 (emphasis added). The
relief requested here—an injunction issued against a former
Executive Branch official in an interbranch information
dispute—cannot possibly have been traditionally available in

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courts of equity, because the “separate systems of law and
equity” in our federal system ceased to exist in 1938. SCA
Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC,
137 S. Ct. 954, 960 (2017). The Committee’s smattering of
examples from the 1970s comes (at least) thirty years too late.
Confining ourselves “within the broad boundaries of
traditional equitable relief” constrains federal courts to their
proper role in a democratic system. Grupo Mexicano, 527 U.S.
at 322. We cannot simply gesture towards the “flexibility” of
equity and offer whatever relief (in our view) seems necessary
to redress an alleged harm; that would transform equity’s
“flexibility” into “omnipotence.” Id. Congress may someday
determine that the federal courts should stand ready to enforce
legislative subpoenas against executive-branch officials, but
authorizing that remedy ourselves would be “incompatible
with the democratic and self-deprecating judgment” that we
lack the “power to create remedies previously unknown to
equity jurisprudence.” Id. at 332. “The debate concerning [the]
formidable power” to compel executive-branch officials to
respond to congressional subpoenas “should be conducted and
resolved where such issues belong in our democracy: in the
Congress.” Id. at 333.
Finally, the Committee claims that the Declaratory
Judgment Act allows it to bring suit. See 28 U.S.C. § 2201(a).
This argument is even less persuasive. The Declaratory
Judgment Act does not itself “provide a cause of action,” as the
“availability of declaratory relief presupposes the existence of
a judicially remediable right.” Ali v. Rumsfeld, 649 F.3d 762,
778 (D.C. Cir. 2011) (cleaned up); see also C&E Servs., Inc. of
Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C.
Cir. 2002). That statute is “procedural only” and simply
“enlarge[s] the range of remedies available in the federal
courts.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,

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671 (1950) (internal quotation marks omitted). Because Article
I does not create a “judicially remediable right” to enforce a
congressional subpoena, the Committee cannot use the
Declaratory Judgment Act to bootstrap its way into federal
court. Thus, even though the Committee has the Article III
standing necessary to “get[] [it] through the courthouse door,
[that] does not keep [it] there.” Make the Road, 962 F.3d at 631.
B
The dissent’s contrary arguments fail. First, the dissent
suggests that the court may infer a cause of action from the
Committee’s Article I power to issue subpoenas. Dissent at 12. The dissent quotes McGrain v. Daugherty, which held that
the “power of inquiry—with process to enforce it—is an
essential and appropriate auxiliary to the legislative function.”
273 U.S. 135, 174 (1927); see also Quinn v. United States, 349
U.S. 155, 160-61 (1955) (similar). But the Supreme Court has
also explained that “[a]uthority to exert the powers of the
[House] to compel production of evidence differs widely from
authority to invoke judicial power to that purpose.” Reed v. Cty.
Comm’rs of Del. Cty., 277 U.S. 376, 389 (1928) (emphasis
added). And neither of the cases that the dissent cites says that
Article I gives the Committee power to file a civil suit to
enforce its subpoenas. McGrain arose out of a habeas corpus
suit filed after the Senate exercised its inherent contempt power
to arrest the Attorney General’s brother. See McGrain, 273
U.S. at 153-54. And although Quinn stated that Congress has
“the authority to compel testimony” through “its own
processes” or a “judicial trial,” that case arose out of a criminal
conviction for contempt of Congress—a violation of a criminal
statute. 349 U.S. at 160-61. These cases do not demonstrate that
Article I creates a cause of action for the Committee. To the
contrary, they show that Congress has long relied on its own
devices—either its inherent contempt power, see, e.g.,

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Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821), or the
criminal contempt statute enacted in 1857, see McGrain, 273
U.S. at 167.
Our circuit has already recognized these limits on
Congress’s power to enforce subpoenas. As we explained,
“Prior to 1978 Congress had only two means of enforcing
compliance with its subpoenas: [1] a statutory criminal
contempt mechanism and [2] the inherent congressional
contempt power.” In re U.S. Senate Permanent Subcomm. on
Investigations, 655 F.2d 1232, 1238 (D.C. Cir. 1981)
(emphasis added) (footnote omitted). Although Congress
“[r]espond[ed] to this deficiency” by enacting a “mechanism
for civil enforcement of Senate subpoenas” in 1978, that statute
“does not . . . include civil enforcement of subpoenas by the
House of Representatives.” Id. at 1238 & n.28 (emphasis
added). Our precedent thus plainly presupposes that the
Constitution alone does not provide a cause of action.
The dissent’s reliance on the Declaratory Judgment Act
also fails. The dissent concedes that the Act “‘presupposes the
existence of a judicially remediable right.’” Dissent at 3
(quoting C&E Servs., 310 F.3d at 201). The dissent locates this
“judicially remediable right” in Article I, but as explained
above, Congress has no implied constitutional power to seek
civil enforcement of its subpoenas. The Committee thus cannot
identify an underlying judicial remedy that could authorize it
to invoke the Declaratory Judgment Act.
II
Because the Committee lacks a cause of action to enforce
its subpoena, this lawsuit must be dismissed. We note that this
decision does not preclude Congress (or one of its chambers)
from ever enforcing a subpoena in federal court; it simply

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precludes it from doing so without first enacting a statute
authorizing such a suit. The Constitution’s Necessary and
Proper Clause vests Congress with power to “make all Laws
which shall be necessary and proper for carrying into
Execution” its constitutional powers, and that Clause gives
Congress—and certainly not the federal courts—the broad
discretion to structure the national government through the
legislative process. U.S. CONST. art. I, § 8, cl. 18.
If Congress (rather than a single committee in a single
chamber thereof) determines that its current mechanisms leave
it unable to adequately enforce its subpoenas, it remains free to
enact a statute that makes the House’s requests for information
judicially enforceable. Indeed, Congress has passed similar
statutes before, authorizing criminal enforcement in 1857 and
civil enforcement for the Senate in 1978. See Senate Permanent
Subcomm., 655 F.3d at 1238 & n.26. Because no “legislation
pursues its purposes at all costs,” CTS Corp. v. Waldburger,
573 U.S. 1, 12 (2014) (internal quotation marks omitted), any
such statute might, for example, carve out certain categories of
subpoenas, or create unique procedural protections for
defendants. That’s exactly what Congress has done in the past.
The 1857 statute, for instance, stated that “no person examined
and testifying” before Congress “shall be held to answer
criminally . . . for any fact or act [about] which he shall be
required to testify.” In re Chapman, 166 U.S. 661, 665 n.1
(1897). And the Senate’s civil enforcement statute exempts
from suit any defendant asserting a “governmental privilege.”
28 U.S.C. § 1365(a).
Balancing the various policy considerations in crafting an
enforcement statute is a legislative judgment. For that reason,
the Constitution leaves to Congress—and not to the federal
courts—the authority to craft rights and remedies in our
constitutional democracy. Perhaps “new conditions” “might

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call for a wrenching departure from past practice” and for a
new statute allowing the House to leverage the power of federal
courts to compel testimony or the production of documents.
Grupo Mexicano, 527 U.S. at 322. But if any institution is wellpositioned to “perceive” those new conditions, to assess
Congress’s needs, to balance those needs against the
countervailing policy considerations, and then “to design the
appropriate remedy,” that institution is Congress. Id.
The judgment of the district court is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.

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ROGERS, Circuit Judge, dissenting: In Committee on the
Judiciary v. McGahn, 2020 WL 4556761 (Aug. 7, 2020), the
en banc court held that a Committee of the House of
Representatives has Article III standing to seek judicial
enforcement of a subpoena duly issued to former White House
Counsel Donald F. McGahn, II. Id. at *15. It remanded to the
panel initially assigned to hear the case the remaining issues,
including the jurisdictional issues the court considers today. Id.
For the following reasons, the Committee has a cause of action
to litigate its subpoena enforcement lawsuit in federal court and
the court has statutory subject matter jurisdiction to resolve it.
Further, on the merits, McGahn’s contention that he is entitled
to absolute immunity from the Committee’s subpoena lacks
merit.
I.
McGahn contends that, notwithstanding the Committee’s
Article III standing, see generally McGahn, 2020 WL
4556761, there is no statutory or constitutional authorization
for the Committee to bring the present subpoena enforcement
lawsuit. But there is both an implied cause of action under
Article I of the Constitution and a cause of action pursuant to
the Declaratory Judgment Act authorizing the Committee to
bring this lawsuit.
A.
In McGrain v. Daugherty, 273 U.S. 135 (1927), the
Supreme Court indicated that the Constitution implies a right
of action to enforce a subpoena. In that case, the Supreme
Court stated that “the power of inquiry — with process to
enforce it — is an essential and appropriate auxiliary to the
legislative function.” Id. at 174; see McGahn, 2020 WL
4556761, at *4–5. The Court inferred from Article I not only
the power of a House of Congress to demand testimony and

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information but also “process to enforce” such a demand,
namely a subpoena enforcement lawsuit. Similarly, the
Supreme Court stated in Quinn v. United States, 349 U.S. 155
(1955), that a subpoena gives Congress “the authority to
compel testimony, either through its own processes or through
judicial trial,” id. at 160–61, indicating that the subpoena power
encompasses the authority to enforce a subpoena in federal
court. In sum, the Supreme Court has explained that the
powers of Congress enumerated in Article I of the Constitution
imply not only a right to information but also a right to seek
judicial enforcement of its subpoena.
B.
Even if an implied cause of action under the Constitution
were inadequate, the Declaratory Judgment Act provides a
cause of action for Congress to enforce its subpoena. The Act
authorizes the court to “declare the rights and other legal
relations of any interested party seeking such declaration,
whether or not further relief is or could be sought,” so long as
there is “a case of actual controversy” over which a federal
court may exercise jurisdiction. 28 U.S.C. § 2201(a). Those
two requirements — (1) an actual case or controversy, and (2)
federal court jurisdiction — are met here. First, the en banc
court has held that the Committee has Article III standing. See
generally McGahn, 2020 WL 4556761. It follows that the
present dispute is a genuine case or controversy. Second, 28
U.S.C. § 1331 supplies federal jurisdiction over this lawsuit, as
explained in Part II infra. The statutory requirements for
proceeding under the Declaratory Judgment Act are thus met.
Under the plain text of the Act, nothing else is required. In
particular, “the wording of the statute does not indicate that any
independent cause of action is required to invoke” the
Declaratory Judgment Act, Comm. on the Judiciary v. Miers,
558 F. Supp. 2d 53, 80 (D.D.C. 2008), and the Supreme Court,

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although emphasizing that the Act is not a source of federal
court jurisdiction or any substantive rights, has never stated that
it does not create a right of action.
The various limits that the Supreme Court and this court
have placed upon lawsuits brought under the Declaratory
Judgment Act do not preclude the House of Representatives
from proceeding under the Act. First, the Supreme Court has
emphasized that the Declaratory Judgment Act does not
provide an independent source of federal jurisdiction. In Skelly
Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950),
the Court stated that the Declaratory Judgment Act “enlarged
the range of remedies available in the federal courts but did not
extend their jurisdiction.” Id. In that case, plaintiffs filed suit
pursuant to the Declaratory Judgment Act seeking an
interpretation by the federal court of a contract provision, a
question solely of state law. Id. at 672. The Court decided that
the mere fact that the plaintiffs had proceeded under the Act
did not suffice to render the case’s state contract law issue a
federal question for purposes of § 1331. See id. at 671–72. The
proscription of Skelly Oil is no obstacle to the Committee here
because the court has jurisdiction under 28 U.S.C. § 1331, see
Part II infra. Thus, the Committee does not impermissibly seek
to rely on the Act as a source of federal court jurisdiction.
Second, the Declaratory Judgment Act “presupposes the
existence of a judicially remediable right.” C&E Servs., Inc. v.
D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002)
(quoting Schilling v. Rogers, 363 U.S. 666, 677 (1960)). In
C&E Services, the issue was whether the appellant could obtain
a declaratory judgment that, in structuring its bidding process,
the D.C. Water & Sewer Authority had violated the federal
Service Contract Act. The court held that it could not, because
the Service Contract Act required any dispute arising under it
to be resolved by the U.S. Secretary of Labor; the Declaratory

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Judgment Act was not an avenue to circumvent that statutory
requirement. See id. at 202. Citing Schilling v. Rogers, 363
U.S. 666 (1960), the court stated that “federal courts may not
declare a plaintiff’s rights under a federal statute that Congress
intended to be enforced exclusively through a judicially
unreviewable administrative hearing.” Id. at 201. That makes
C&E Services quite different because the Committee is suing
in the context of its constitutional duty of impeachment to
enforce a right to compulsory process that follows from the
Constitution, not a statute.
Furthermore, because the
Committee does not assert a statutory right, there is no
statutorily mandated exclusive remedial scheme for
vindication of that right, as there was in C&E Services.
More broadly, C&E Services and Schilling stand for the
proposition that the Declaratory Judgment Act provides no
substantive right that a plaintiff may seek to adjudicate in
federal court. Rather, the Act is a vehicle for vindicating a
separate and independent substantive right. The Constitution
itself is the source of the right of compulsory process that the
Committee seeks to vindicate here; the Supreme Court has long
recognized Congress’s broad power of inquiry and the
concomitant right to compel witnesses to appear before it. See,
e.g., McGrain, 273 U.S. at 174; see McGahn, 2020 WL
4556761, at *4–5. Thus, because the Committee asserts a right
to have McGahn appear before it to testify, and because this
court has held that a dispute over that right is susceptible of
judicial resolution, see McGahn, 2020 WL 4556761, at *15, the
requirement that a Declaratory Judgment Act plaintiff rely on
an independent judicially remediable substantive right is
satisfied.
McGahn points out that this court has stated: “Nor does the
Declaratory Judgment Act . . . provide a cause of action.” Ali
v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (citation

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omitted). That statement was made in the context of unique
factual circumstances very different from the present case. In
Ali, the appellants were Afghan and Iraqi citizens detained in
their home countries in the course of U.S. military operations
there. See id. at 764–65. Their lawsuit sought, among other
things, a declaratory judgment that their treatment in detention
violated the law of nations, treaties to which the United States
was a party, and the Fifth and Eighth Amendments of the U.S.
Constitution. Id. The court held that the Declaratory Judgment
Act did not provide the plaintiffs with a cause of action, see id.
at 778, casting doubt that the Fifth and Eighth Amendments
protected them because they were detained overseas in a
country over which the United States did not exercise “de facto
sovereignty,” id. at 772 (citing Boumediene v. Bush, 553 U.S.
723, 755 (2008)). The court stated: “[W]e have . . . held that
the Suspension Clause does not apply to Bagram detainees.
[Appellants] offer no reason — and we see none ourselves —
why their Fifth and Eighth Amendment claims would be any
stronger than the Suspension Clause claims of the Bagram
detainees.” Id. The clear implication of that reasoning is that
the Fifth and Eighth Amendments did not apply to the Ali
plaintiffs, and thus that no constitutional right was at stake.
No party disputes the existence of the constitutional power
— namely, the power of inquiry — that the House seeks to
vindicate. See McGrain, 273 U.S. at 174. The defect in Ali,
then, was akin to the problem of C&E Services, namely that
there was no substantive right that plaintiffs could assert. So
understood, Ali does not prevent the House from proceeding
under the Declaratory Judgment Act here to vindicate an
established constitutional right.

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II.
It is not enough that the Committee have Article III
standing and a cause of action to bring the present lawsuit; the
court must also assure itself that it has statutory subject matter
jurisdiction to resolve the dispute. Contrary to McGahn’s
position, the court has subject matter jurisdiction over the
Committee’s lawsuit pursuant to 28 U.S.C. § 1331, which
grants statutory jurisdiction over “all civil actions arising under
the Constitution . . . of the United States.” The present lawsuit
“aris[es] under the Constitution” and is therefore within the
court’s jurisdiction.
The power that the Committee seeks to exercise in the
present lawsuit flows from the Constitution. “Because
Congress must have access to information to perform its
constitutional responsibilities, when Congress ‘does not itself
possess the requisite information — which not infrequently is
true — recourse must be had to others who do possess it.”
McGahn, 2020 WL 4556761, at *4 (quoting McGrain, 273
U.S. at 175). Consequently, “the Supreme Court has
acknowledged the essentiality of information to the effective
functioning of Congress and long ‘held that each House has
power to secure needed information’ through the subpoena
power.” Id. (quoting Trump v. Mazars USA, LLP, 140 S. Ct.
2019, 2031 (2020)) (internal quotation marks omitted). “That
constitutional power entitles each House to the testimony of a
witness and production of requested documents in response to
a lawful subpoena.” Id.
Because the House seeks through
the present lawsuit to exercise its subpoena power, and because
that power flows from Article I of the Constitution, see, e.g.,
McGrain, 273 U.S. at 174, the Committee’s lawsuit arises
under the Constitution. The court therefore has subject matter
jurisdiction pursuant to § 1331.

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This conclusion is bolstered by United States v. AT&T, 551
F.2d 384 (D.C. Cir. 1976). In that case, the Executive Branch
sued AT&T to enjoin its compliance with a congressional
subpoena. The President had directed AT&T “as an agent of
the United States, to respectfully decline to comply with the
Committee subpoena.” Id. at 387 (citation omitted). The
House of Representatives intervened as a defendant to
represent its interest in AT&T’s compliance with the
Committee subpoena. After observing that the subpoena
dispute presented “a clash of the powers of the legislative and
executive branches,” this court held that subject matter
“[j]urisdiction exists under 28 U.S.C. § 1331,” as explained in
Part II. Id. at 389. The court reasoned that because the question
before it was whether the Executive Branch possessed the
“constitutional powers” to “prevent transmission of [requested
information] to Congress” pursuant to a congressional
subpoena, “[t]he action therefore arises under the Constitution
of the United States.” Id. AT&T thus establishes that a dispute
over whether a party must comply with a congressional
subpoena arises under the Constitution and therefore lies within
§ 1331’s grant of subject matter jurisdiction.
McGahn responds that notwithstanding the plain text of
§ 1331 and this court’s precedent interpreting that provision to
provide subject matter jurisdiction over a dispute concerning a
congressional subpoena, 28 U.S.C. § 1365 has impliedly
repealed federal jurisdiction granted by § 1331.
That
argument, which the majority embraces, is unpersuasive.
Section 1365, entitled “Senate actions,” confers on the
U.S. District Court for the District of Columbia original
jurisdiction “over any civil action brought by the Senate or any
authorized committee or subcommittee . . . to enforce, to secure
a declaratory judgment concerning the validity of, or to prevent
a threatened refusal or failure to comply with, any subpoena or

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order issued by the Senate or committee or subcommittee.” 28
U.S.C. § 1365. On its face, § 1365 says nothing about
subpoena enforcement lawsuits brought by the House of
Representatives. Yet by explicitly granting the federal courts
jurisdiction over a Senate subpoena enforcement action but not
a House subpoena enforcement action, McGahn maintains that
Congress intended that the federal courts should not have
jurisdiction over the latter. This argument fails on two grounds.
First, it overlooks the key context. When Congress enacted §
1365 in 1978, § 1331 contained an amount-in-controversy
requirement for lawsuits against private parties and officials
acting in their individual capacities. The Senate had good
reason to believe that this requirement would be an obstacle to
subpoena-enforcement lawsuits because the district court in
Senate Select Committee on Presidential Campaign Activities
v. Nixon, 366 F. Supp. 51 (D.D.C. 1973), had originally
dismissed the Senate’s lawsuit for failure to meet the
requirement, see id. at 59–61. Congress addressed this problem
in 1978 with the enactment of § 1365, which granted federal
courts subject matter jurisdiction over Senate subpoenaenforcement actions without regard to the amount in
controversy. The Senate Committee on Governmental Affairs
explicitly disclaimed the inference that McGahn now seeks to
draw, stating in its report on § 1365 that the provision “is not
intended to be a Congressional finding that the Federal courts
do not now have the authority to hear a civil action to enforce
a subp[o]ena against an officer or employee of the Federal
Government.” S. REP. NO. 95-170, at 91–92 (1978).
Congress is free to address problems seriatim without
thereby implicating questions not before it. As the Supreme
Court has explained, “reform may take one step at a time,
addressing itself to the phase of the problem which seems most
acute to the legislative mind. The legislature may select one
phase of one field and apply a remedy there, neglecting the

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others.” Williamson v. Lee Optical, 348 U.S. 483, 489 (1955)
(citation omitted)). With § 1365, Congress was responding to
a particular problem: the amount in controversy requirement
that, until it was eliminated in 1980, prevented federal courts
from exercising jurisdiction over Congressional subpoenaenforcement suits under § 1331. Given the specific obstacle
Congress overcame in enacting § 1365, there is no basis to
conclude the statute bears on federal jurisdiction over House
subpoena-enforcement actions. The inference that § 1365 has
repealed such jurisdiction is therefore unwarranted.
Second, the Supreme Court has cautioned against the
implied repeal argument that McGahn advances. Because
“[r]edundancies across statutes are not unusual events in
drafting, . . . so long as there is no ‘positive repugnancy’
between two laws, a court must give effect to both.” Conn.
Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (quoting
Wood v. United States, 41 U.S. (16 Pet.) 342, 363 (1842)).
Consequently, “jurisdiction conferred by 28 U.S.C. § 1331
should hold firm against ‘mere implication flowing from
subsequent litigation.’” Mims v. Arrow Fin. Servs., LLC, 565
U.S. 368, 383 (2012) (quoting Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 808 (1976)). That
admonition counsels against McGahn’s and the majority’s
theory of the effect that § 1365 has on the court’s jurisdiction
over the present lawsuit.
To the extent that legislative history may shed light on the
meaning of § 1365 as McGahn urges, reliance on two Senators’
statements during Floor debate on the bill is misplaced. Two
Senators stated that § 1365 indicates there is no federal
jurisdiction over a Congressional subpoena-enforcement suit
unless specifically authorized and reflects a Congressional
judgment courts should refrain from exercising jurisdiction
over such disputes. Given the jealousy with which each House

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of Congress guards its constitutional prerogatives, these
statements are hardly a clear instruction concerning the effect
of § 1365 on the institutional powers of the House of
Representatives. It would therefore be inappropriate, in the
absence of a clear statutory directive, to conclude that § 1365
also restricted the power of the House to file a federal
subpoena-enforcement lawsuit.
III.
On the merits, McGahn’s contention that he is absolutely
immune from the Committee’s subpoena must fail. His claim
of absolute immunity amounts to the position that the President
has the exclusive prerogative to determine what information, if
any, will be disclosed in response to a subpoena. Precedent
forecloses that position.
In United States v. Nixon, 418 U.S. 683 (1974), the
Supreme Court rejected this capacious view of Presidential
power over Executive Branch information. Stating that
“neither the doctrine of separation of powers, nor the need for
confidentiality of high-level communications, without more,
can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances,” the
Court instead held that the President possesses a qualified
executive privilege whereby Presidential communications are
presumptively privileged but whose disclosure may be
compelled in the case of demonstrated specific need in a
criminal proceeding. Id. at 706–07. As the en banc court
recently recognized, this “potentially available privilege is a
powerful protection of the President’s interest in Executive
Branch confidentiality” in the present case. McGahn, 2020
WL 4556761, at *11.

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The Supreme Court elaborated on the President’s qualified
power to screen Executive Branch materials from disclosure in
Nixon v. Administrator of General Services, 433 U.S. 425
(1977), concerning not a judicial subpoena in a criminal matter
but rather a statute regulating the preservation of President
Nixon’s Presidential papers. The Court reiterated that although
the context was different, the executive privilege was “a
qualified one” and that “there has never been an expectation
that the confidences of the Executive Office are absolute and
unyielding.” Id. at 446, 450. The privilege is similarly
qualified when asserted in civil litigation. See Dellums v.
Powell, 561 F.2d 242, 245–46 (D.C. Cir. 1977).
This court has rejected the claim of absolute presidential
privilege in the factual circumstances of the present case,
namely in response to a congressional subpoena. In Senate
Select Committee on Presidential Campaign Activities v.
Nixon, 498 F.2d 725 (D.C. Cir. 1974), the court considered a
subpoena enforcement lawsuit brought by a Senate Committee.
Rather than indulge the President’s claim of absolute privilege
in response to the subpoena, the court stated that the proper
analysis was to determine whether the Committee’s
demonstrated “public need” was sufficient to overcome the
President’s general interest in confidentiality; if so, in camera
review of the requested materials by the district court would
follow in order to assess the Executive Branch’s particularized
claims of privilege. Id. at 729–31. The court explained that
“[s]o long as the presumption that the public interest favors
confidentiality can be defeated only by a strong showing of
need by another institution of government . . . the effective
functioning of the presidential office will not be impaired.” Id.
at 730.
This precedent demonstrates that although the President’s
communications with close advisors, including the White

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House Counsel, are presumptively privileged, the President
does not have absolute, unreviewable discretion to determine
what information will be disclosed in response to a subpoena
— whether a judicial subpoena in a criminal proceeding or a
valid congressional subpoena. Yet that is exactly the nature of
McGahn’s absolute immunity claim. By asserting that he need
not even appear in response to the Committee’s duly issued
subpoena, he in essence contends that the President may
unilaterally determine that no information will be disclosed in
response to the subpoena. He thereby seeks to revive a view of
Presidential power expressly rejected by the Supreme Court.
Accordingly, the judgment of the district court should be
affirmed, see Comm. on the Judiciary, U.S. House of
Representatives v. McGahn, 415 F. Supp. 3d 148 (D.D.C.
2019), and I respectfully dissent.

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