Just Security: Good Governance Paper No. 2: The Congressional Subpoena Power

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#GoodGovPapers No. 2: The Congressional Subpoena Power

With lessons learned from a defiant White House, Emily Berman (@UHLAW) explores how Congress could authorize and expedite judicial enforcement of congressional subpoenas.

Good Governance Paper No. 2: The Congressional Subpoena Power
Second in series of essays exploring proposals to restore and promote nonpartisan principles of good government, public integrity, rule of law.
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https://www.justsecurity.org/72847/good-governance-paper-no-2-the-congressional-subpoena-power/

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

Executive Branch resistance to Congress’s requests for information about the administration it oversees, authorizes, and funds has grown increasingly audacious, disrupting the ability of the nation’s legislature to do its job. In the face of assertions of absolute immunity, expansive claims of executive privilege, and other refusals to provide testimony and documentary evidence, Congress has issued subpoenas—only to discover that it often has no effective means of enforcing them. To reverse the erosion of norms regarding congressional access to information, Congress should enact legislation to authorize and streamline judicial enforcement of congressional subpoenas. Giving Congress a viable enforcement mechanism will render executive stonewalling much more difficult and incentivize a return to the traditional method of settling interbranch information disputes—negotiation and mutual accommodation.

The Problem – An Illustrative Case Study

The House Judiciary Committee’s efforts to secure the testimony of former White House Counsel Don McGahn as part of its impeachment investigation of President Donald Trump starkly presents the problem. Congress requested and then subpoenaed McGahn’s testimony regarding potential instances of obstruction of justice detailed in Special Counsel Robert Mueller’s report. When McGahn indicated that, on instruction by the White House, that he would disregard the subpoena, the Committee filed suit seeking to compel McGahn’s testimony. More than a year and three appeals court decisions later, that suit remains in its preliminary stages. A new round of appeals is expected from a D.C. Circuit ruling that the Judiciary Committee lacks a cause of action. Any final resolution of the dispute remains months, if not years, away. The McGahn case thus illustrates Congress’s inability to enforce duly issued subpoenas and, as a result, its inability to secure from the executive-branch the information it requires. Similar stories can be told about clashes in each presidential administration going back at least to Ronald Reagan. And while the branches were successful in negotiating resolutions with one another in some of these incidents, such resolutions often were prompted by judicial intervention.

The Executive’s Increased Recalcitrance and Congress’s Resort to the Courts

The McGahn case is merely the culmination of a trend. Clashes between Congress and the executive over access to information are themselves nothing new. Historically, the political branches resolved such disputes through inter-branch negotiations, finding ways to balance Congress’s investigative needs with the executive’s legitimate confidentiality interests, almost always without recourse to the courts. In recent decades, however, these disputes have intensified, and congressional efforts to acquire documents and testimony have, with increased frequency, been met with executive stonewalling.

The past several administrations have justified rejecting congressional information requests, even when issued in the form of subpoenas, by aggressively deploying legal doctrines—developed and articulated unilaterally by the executive branch—of dubious validity. More specifically, the executive has advanced increasingly broad conceptions of executive privilege as well as claims of complete testimonial immunity for both current and former executive-branch officials. In addition, it has met Congress’s resort to the courts for aid in enforcing subpoenas with similarly audacious doctrinal challenges to Congress’s right to sue, arguing that courts lack jurisdiction over such suits and that Congress lacks a cause of action.

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