Blog Ipsa Loquitur

Published on under Bench, Please

Back in April 2019, the Committee on the Judiciary of the House of Representatives issued a subpoena to former White House Counsel Don McGahn, who refused to testify. McGahn argued that certain presidential advisers have “absolute” immunity from Congressional subpoenas, and that the Constitution forbids federal courts from resolving this dispute. Today, a panel of the DC Circuit Court of Appeals agreed with McGahn in a 2-1 opinion that the court shouldn’t get in the middle of this, and I’m pretty flabbergasted. Let’s take a look at what the heck just happened.

Firstly, as Lawrence Hurley pointed out, the Judiciary Committee sued McGahn over the subpoena on August 7. The appeals court heard oral arguments on January 3, before the House impeachment trial had even started. Remember that a large part of the Republican defense of the president went something like ‘Democrats are in too big a hurry and we should let the courts weigh in.’ I’m not saying the court dragged its feet for almost two months before blowing a giant hole in the Weird Process Argument the President used to defend his indefensible behavior. I would never say that, regardless of how awful it looks.

Secondly, this ruling seems to eviscerate Congress’s ability to effectively oversee the Executive branch. I have to assume the House Judiciary Committee will appeal immediately, so I’ll resist the urge to rend my clothes and wail about constitutional crises. For the most part.

here we go

The majority starts by examining federal courts’ authority as granted by Article III of the Constitution. Federal courts are limited to resolving a “case” or “controversy,” so the Supreme Court can’t rule tomorrow that cars are outlawed because they feel like climate change is an emergency. That’s not a “case,” right? The courts are supposed to let the other branches run the country, and only step in when asked to resolve a case. For example, in Brown v. Board of Education, the Supreme Court was asked—and resolved—whether segregated schools were unconstitutional by answering yes.

The majority’s argument is simply that, based on the case or controversy requirement in the Constitution, courts do not supervise or oversee government. Therefore, courts cannot resolve disputes between the other branches until an entity “beyond the federal government” is harmed. The investigation of a president’s (seemingly endless) obstruction of justice is no more than “an intramural disagreement” that courts lack power to resolve. The majority cites Raines v. Byrd, a case in which the Supreme Court denied six members of Congress the right to sue the Actual Congress over a law they felt expanded the President’s power in violation of the Constitution.

I think the House Judiciary Committee is a little more official than six random congresspersons, and the act of ignoring a Congressional subpoena in pursuant of impeachment actually violates the Constitution. Ah, but we’re only just getting started.

but first

Dear Reader, if you didn’t sit through two semesters of Constitutional Law and scratch your head at why this case turned out this way, while that case turned out that way, I’d like to briefly explain something about Constitutional Law to you. Uh, it’s all kind of made up. We’ve given nine smart folks jobs for life and asked them to argue amongst themselves about what is and is not Constitutional, in a world that resembles the Founding Fathers’ less and less every day.

Like, the Constitution is silent about how we decide who gets to regulate commercial air travel, reproductive health, uzis, cell phones, and so on. And that’s just regulatory authority! Don’t get me started on the policing power, substantive due process, free speech, and a bunch of other stuff I can’t be bothered to look up from my law school notes. The point is, we’re winging it and we’ve been winging it for a long time, and the real beauty of the Constitution is that it landed in the sweet spot between “uselessly vague” and “actually usefully vague” in so many areas.

who are we to judge

So let’s get back to House Judiciary Committee v. McGahn, today’s case. When we last left off, the majority was explaining that inserting the judiciary into a dispute that had “no bearing on the rights of individuals” would be an unconstitutional violation of the separation of powers. The majority opinion again and again minimizes this obstruction of a Congressional investigation into the President’s abuse of power as nothing more than a “mere assertion of institutional harm.” They note that inter-branch disputes are usually political, and courts shouldn’t play politics. They note that the only way to resolve this question is to declare the actions of one branch unconstitutional, and that would be bad… for… some… reason. As if courts don’t… do… that… when one branch does something unconstitutional.

And worse than that, the majority notes, if the Judiciary Committee can enforce this subpoena through this court, then any committee can enforce any subpoena. And that would be bad, they say, because those hypothetical future subpoenas would “invariably” require the court to evaluate the limits of the Executive branch’s claims of unlimited privilege. And that question would be hard. So they don’t want to do it.

And in order to prove that this case is a slippery slope toward a dark future full of subpoenas, the majority points out that there was a separate lawsuit seeking to enforce a separate Congressional subpoena filed a day after the last ruling in this case. The majority seems to view Congress as the real troublemaker here, not the folks ignoring Congress’s constitutionally-mandated oversight of the Executive branch. It’s all a bit like complaining that the police keep arresting bank robbers, and that’s it’s actually very tricky to decide where the bank stops and the sidewalk begins, so maybe we should all just chill out and stop asking so many questions.

Congress will be fine

The majority also says Congress has plenty of ways to get what it wants (without running to courts every time a marginally literate game show host accidentally gets himself elected and tramples on the Constitution).

For example, Congress can:

  1. Hold officers in contempt (N.B. McGahn is not an officer),
  2. Refuse to confirm the President’s nominees (N.B. the House does not confirm nominees),
  3. Harness public opinion (ok boomers),
  4. Delay the President’s legislative agenda (e.g. infrastructure week), or
  5. “Impeach recalcitrant officers.” (Again, McGahn is not an officer)

The majority, in apparently recommending someone—McGahn or the Other Guy—be impeached, actually cites to the actual articles of impeachment passed in December against the president. I take that as kind of a “well, look, so the dude ignores your subpoenas, but you were already going to impeach the president anyway, so no harm no foul, right?” thing. But imagine the Supreme Court ruling that Nixon didn’t have to turn over the recordings of all his crimes, and that if Congress really didn’t like it, they could just impeach him anyway.

And actually, that part makes a certain amount of sense to me; if the president commits an impeachable offense to cover up his other impeachable offenses, you can see how justice could be done with or without a court enforcing Congressional subpoenas. After all, President Clinton was (quite correctly) impeached for obstructing justice without any underlying crimes, much to the eternal frustration of the folks who spent half a decade investigating both Clintons.

The beautiful game

But maybe the biggest reason the majority believes it would be improper to intervene is because it believes Legislative-Executive disputes occur in a “flexible system of negotiation, accommodation, and (sometimes political retaliation)” and “democracy is a messy business.” Sure, it may be just a little messier when a substantial portion of the electorate is suffering the political equivalent of a psychotic break, but the majority here apparently thinks the ongoing constitutional crisis is just classic Washington hijinks.

Now, the dissent points out that the above-mentioned negotiation and accommodation has, for half a century, taken place against the backdrop of Congress resorting to the courts to enforce its subpoenas. If there are no consequences for ignoring the demand, there is no reason to negotiate or accommodate. A president could just ignore everything they didn’t feel like answering. Which is… exactly what the White House did with all the impeachment-related subpoenas. Huh. Looks like hindsight is 20/20 after all. (This is also one reason why I answer subpoenas I get at work: consequences!)

The majority undermines their own ‘let the players play’ argument by acknowledging that well, yes, technically, the DC circuit’s courts have ruled on a bunch of subpoenas between the branches for the last half a century or so. Seems almost like there’s a backdrop of Congress resorting to the courts to enforce subpoenas, if you ask me. The majority tries to differentiate these fifty years of cases by pointing out that in none of those cases did anyone ever argue that subpoenas are actually enforceable, so why start (i.e. continue) now?

Here’s where they really lose me though: the majority follows that rhetorical question by citing the Supreme Court’s ruling that an Article III case or controversy must be “traditionally thought to be capable of resolution through the judicial process.” You know what would be a good way to find out what is traditionally thought to be resolvable? Reading a half century of your own rulings on this exact issue, your honors!

The majority also points out that there really weren’t any inter-branch “investigative disputes” until the 1970s. Again, arguing that this president’s conduct is almost without precedent doesn’t seem designed to engender the reader’s confidence that this is your typical Legislative-Executive dispute. Then the majority refers to a bunch of times presidents asserted Executive Privilege without Congress (literally) making a federal case out of it.

Now, Executive Privilege is definitely a thing, but so are subpoenas. You might not have to answer the questions if you assert privilege, but you do have to show up and listen to them. The bank robber can’t assert his fifth amendment right to remain silent and use that as an excuse to get out of handcuffs and walk away. You have your rights, but you exercise them within the process. Not instead of the process.

Almost done I promise

In perhaps the best argument the majority makes, the federal law that creates the district courts gives only the Senate—not the House—the right to go to court to enforce its subpoenas. Even more specifically, the Senate does not have the right to sue the Executive branch over its assertion of “governmental privilege” in response to a Senate subpoena.

Got that? The court can’t hear the House’s lawsuits over subpoenas, and even if this were a Senate lawsuit, it’s a lawsuit against the Executive branch over its assertion of privilege. That’s… a pretty solid argument. But there are lots of other laws that grant federal courts jurisdiction (i.e. give courts the right to hear a kind of case).

For example, the trial judge ruled—and the dissent agrees—that because federal courts also have jurisdiction over “federal questions” involving the Constitution, it’s proper for a court to rule on the House Judiciary’s McGahn subpoena. The other two branches of government arguing about the extent of Congress’s impeachment power (Article I of the Constitution) seems about as fundamentally “federal” a question as anything else to me. But I’m neither a constitutional scholar nor a civil procedure expert, so I’m going to just leave my uneducated opinion right there.

The dissent puts this “federal question” thing another way later: if Congress can’t enforce its subpoenas, it can’t effectively investigate the president. If Congress can’t effectively investigate the president, it cannot effectively act as a “check” or a “balance” on Executive abuse. The federal question thus posed is where the limits of the Congressional impeachment power are. Again, I’m ignorant, but I think it would be good to have a federal court answer this one day.

In sum

We started out with the question “can the court please help Congress enforce this subpoena?” and the answer is no. I’m not going to wax philosophical about what this implies about impeachment as a political exercise, the nature of partisan politics, polarization between the parties, or whatever. The fact is we’re in a slow motion constitutional crisis, and rulings like this make me worry that the judicial system simply isn’t set up to pull us back from the brink.

The good news is that the system also doesn’t seem set up to let the president’s worst impulses (looking at you, Muslim travel ban) nullify the constitution in one fell swoop. Here’s hoping that’s enough.