Upcoming Supreme Court Case Threatens Congressional Subpoena Power
.jpeg?sfvrsn=572cf76e_5)
Published by The Lawfare Institute
in Cooperation With
Recent weeks have seen a flurry of investigative activity on Capitol Hill, including probes by House committees into Hunter Biden and Manhattan District Attorney Alvin Bragg’s New York indictment of former president Donald Trump, demands by Senate committees for information about Supreme Court ethics rules and gifts received by Justice Clarence Thomas, a subpoena from the House Foreign Affairs Committee to obtain access to a key State Department document regarding the Afghanistan withdrawal, and bipartisan and bicameral inquiries into matters such as recent bank failures and the social media application TikTok. All this oversight, however, could be imperiled by the Supreme Court’s May 15 decision to grant U.S. solicitor general Elizabeth Prelogar’s petition to review whether the Constitution allows members of Congress to sue the executive branch for information.
Carnahan v. Maloney involves an obscure federal statute, § 5 U.S.C. 2954, which allows a group of members of either of the two principal House and Senate oversight committees to demand and receive information from any agency in the executive branch of government. Under this law, which requires agencies to provide information demanded by any seven members of the House committee or five members of the Senate committee, a minority of the committee (usually members of the minority party) can seek information even when the rest of the committee is opposed or indifferent. In this case, a group of Democratic members of the House oversight committee asked GSA for documents regarding the agency’s lease of the Old Post Office for purposes of converting it into the Trump International Hotel. When GSA withheld some of the documents, they sued in federal court for relief.
The issue before the Supreme Court is not related to the merits of the lawsuit or whether the statute in question allows the members to seek judicial relief. There is a legitimate question about whether section 2954 grants members of Congress a right to sue at all. But this statutory question, which the lower courts have yet to address, is not the issue the solicitor general wants the Court to resolve. Instead, she contends that individual members of Congress can never have Article III standing to sue an executive agency to compel it to provide information, a conclusion which could potentially bar any lawsuit by Congress to enforce a subpoena against the executive branch.
For the last 20 years, the Department of Justice has argued in court that Congress lacks Article III standing to sue the executive branch, or current or former executive officials, to obtain information that has been unlawfully withheld. Although this argument has been repeatedly rejected by the lower courts, the Carnahan case is the first occasion for the Supreme Court to consider the question. If the Court embraces the argument advanced by the solicitor general, Congress could be left without any effective judicial remedy for executive defiance of its subpoenas. In the words of Justice Ketanji Brown Jackson, written while she was on the district court, it leads to a world in which “the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive Branch, such that, ultimately, the President wields virtually unchecked power.”
The Historical Background
Key to the executive branch’s legal position is that historical practice forecloses Congress from suing to obtain information from the executive. As argued by the solicitor general, “our Nation’s history makes clear that an informational dispute between Members of Congress and the Executive Branch is not of the sort traditionally thought to be capable of resolution through the judicial process.”
Our nation’s history shows no such thing. For the first century or so, Congress issued subpoenas rarely and depended on so-called “inherent contempt” as its primary method of enforcing them. Inherent contempt involved the House or Senate directing its sergeant at arms to take a contumacious witness into custody and bring him before the bar of the offended legislative chamber, where he would be tried for contempt and, if convicted, imprisoned until he provided the documents or testimony demanded. This process was cumbersome and therefore used sparingly. From 1789 to the end of the 19th century, there were only 88 cases in which contempt proceedings were even initiated in either chamber, and considerably fewer resulted in actual trials or imprisonment.
In such cases judicial review was indisputably available if, for example, an imprisoned witness sought a writ of habeas corpus to obtain release from congressional custody. In Anderson v. Dunn (1821) the Supreme Court established the principle that a congressional contemnor could seek judicial relief, and in Kilbourn v. Thompson (1881), the Court used that power to hold for the first time that a congressional effort to compel testimony was invalid.
Executive officials were not immune from Congress’s use of inherent contempt, and its actual or threatened exercise could sometimes overcome executive branch objections to producing information. For example, during an investigation of corruption in the Buchanan administration, a House committee summoned the former territorial governor of Kansas and demanded that he produce a key letter he had received while governor from President Buchanan. Over objections that only the president could authorize the production of his confidential communications with an officer of the government, the witness was compelled to divulge the contents of the letter.
However, when information was in the custody or control of the president himself, enforcement was more difficult. Inherent contempt was not an option because arresting the president was unthinkable for constitutional, political, and practical reasons. In such cases disputes were settled by political negotiation, rather than by inherent contempt or direct litigation.
According to the solicitor general, this shows that Congress lacked the constitutional authority to bring such disputes to court. There are, however, plenty of other reasons why Congress did not sue the president in those cases. For one thing, Congress lacked the institutional capacity to initiate litigation during the 19th century. Most notably, it lacked any legal staff to represent it in court. (When an officer of the House or Senate was sued for official actions, such as arresting a recalcitrant witness, special funds needed to be appropriated to hire a private lawyer.) Thus, it was not until the early 20th century that Congress or its committees first sued anyone for anything.
To the extent that anyone in Congress considered suing to enforce a subpoena during the 19th century, there was another problem. It was not clear whether enforcement of a subpoena by a public body would be considered a case or controversy that could be heard by federal courts under Article III. These doubts were erased, though, by the Supreme Court’s decision in ICC v. Brimson (1894), which held that enforcement of a subpoena from a commission exercising investigatory powers delegated by Congress presented a justiciable case or controversy. In so holding. the Court rejected the argument that the justiciability of the case should turn on the form of the proceeding. In other words, if the failure to comply with a subpoena presents a justiciable controversy when the witness is criminally prosecuted or seeks judicial relief from the exercise of inherent contempt, it is equally justiciable in a direct action to enforce the subpoena. The same principle demonstrates that the enforcement of a congressional subpoena (which can be punished by either inherent or criminal contempt) presents a justiciable case or controversy.
After Brimson it was widely understood that congressional committees, like administrative agencies, could seek judicial assistance to enforce their subpoenas. This is illustrated by five separate events in the early 20th century. On three different occasions (1910, 1916 and 1924), Congress passed laws authorizing specific committees to invoke the aid of the courts in requiring the attendance and testimony of witnesses and the production of documents. These enactments apparently raised no constitutional objections in either the legislative or executive branches.
Furthermore, in 1927, a Senate committee investigating election irregularities in Pennsylvania sought a federal court order requiring local officials to turn over ballot boxes and other election papers relevant to the investigation. Although the Supreme Court in Reed v. County Comm’rs (1928) ultimately dismissed the case because the committee had not been expressly authorized to bring suit by either statute or Senate rule, nothing in the Court’s analysis suggested any constitutional barrier to the suit. Finally, in 1928 the Senate responded to the Reed decision by adopting a standing order, still in effect today, which authorizes all its committees to initiate litigation in support of their official functions. These developments demonstrate a wide consensus that Congress and its committees could properly sue to enforce subpoenas and seek other forms of judicial assistance.
These developments did not solve the problem of informational conflicts with the president, however, because of two lingering problems. First, the executive branch maintained that the courts lacked the power to order the president to produce information (either to Congress or anyone else) if he determined that the public interest required withholding. Second (and relatedly), some academics argued that the president’s invocation of constitutional authority to withhold information from Congress or the courts (which came to be known as executive privilege) would present a nonjusticiable political question.
These problems were finally overcome by the Supreme Court’s decision in United States v. Nixon (1974), where the Court rejected President Nixon’s argument that his assertion of executive privilege was nonjusticiable and ordered him to produce the Watergate tapes in response to a criminal subpoena. Most observers, including future Reagan solicitor general, Rex E. Lee, thought the Nixon ruling would allow Congress to sue the executive to enforce its subpoenas, and, on two occasions in the 1970s (including the Senate Watergate committee’s own suit against Nixon to obtain the tapes), the D.C. Circuit found such direct informational disputes between the political branches to be justiciable.
Indeed, this view was noncontroversial enough to lead to two significant Office of Legal Counsel (OLC) opinions under the Reagan administration that found that Congress could bring a civil subpoena enforcement action against the executive branch to obtain judicial resolution of the executive’s privilege claims. At the same time, OLC cited the history of past executive branch refusals to provide information to Congress as evidence of a broad constitutional discretion in the president to withhold information and it suggested that the legislative branch had at least partially acquiesced in the same.
The Executive Branch Changes its Position
The executive branch’s position on Congress’s constitutional right to sue to enforce a subpoena changed after the Supreme Court’s decision in Raines v. Byrd (1997), which held that a group of members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act. The Court stressed that these members were asserting an institutional injury that did not affect them as individuals, that the injury they alleged was “wholly abstract and widely disbursed,” and that historically similar claims were not thought to be justiciable. The Court pointed specifically to the absence of any litigation between the political branches over historical disputes such as the constitutionality of the Tenure of Office Act, the pocket veto, the appointment provisions of the Federal Election Commission Act, and the legislative veto. Allowing such disputes to be litigated, the Court indicated, would be tantamount to giving the courts an “amorphous general supervision of the operations of government.”
Notably absent from the Court’s discussion in Raines was any mention of informational disputes between the branches. In contrast to the “wholly abstract” disputes in Raines and the historical examples cited by the Court, failure to comply with a subpoena or other lawful demand for information results in a concrete and particularized injury precisely identical to that which confers standing in many other cases. Thus, no one would dispute that an agency has standing to enforce an administrative subpoena, a prosecutor has standing to enforce a criminal or grand jury subpoena, a litigant has standing to enforce a subpoena in civil cases, and a private individual has standing to enforce a request made under the Freedom of Information Act.
Despite these differences, the Department of Justice argued that Raines barred Congress from suing to enforce its subpoenas against the executive branch. The key move in this argument was to repurpose the history of executive branch refusals to provide information to Congress, which in the 1980s the Justice Department viewed as entirely consistent with a congressional power to sue, as evidence under Raines that no such power ever existed. In addition, the Justice Department argued that it would be inappropriate for the courts to intervene in “political” disputes between the branches, in effect asking the courts to consider political question considerations in the standing analysis.
Unfortunately for the Justice Department, its argument did not fare well in the courts. It was rejected on no less than four separate occasions, by four different district court judges (two Republican and two Democratic appointees), during the George W. Bush, Obama, and Trump administrations. Each of these judges rejected the Justice Department’s interpretation of Raines, its contention that the history of executive branch refusal to provide information was relevant to the standing issue, and its attempt to smuggle political question doctrine into the standing analysis.
Carnahan v. Maloney
This most recent case involves a subpoena from the House Judiciary committee to Don McGahn, who served as White House counsel in the Trump administration until 2017. After McGahn refused to comply with the subpoena, the committee sued him in federal court, and the Department of Justice, representing McGahn in the case, asked then-District Judge Ketanji Brown Jackson to dismiss the case on the ground that the committee lacked standing to sue.
Judge Jackson not only rejected the Justice Department’s standing/justiciability arguments; she also suggested they were borderline frivolous. She said that the Justice Department’s claim that “this dispute is not one traditionally thought to be amenable to judicial resolution” was wrong in every conceivable respect. It was contrary to the very nature of a valid subpoena, “which ordinarily gives rise to a legally enforceable duty to perform in the requested manner.” It was contradicted by the fact that all other types of subpoena enforcement actions are without exception amenable to judicial resolution. It was inconsistent with the nature of the injury at issue; defiance of a valid subpoena gives rise to a “concrete and particularized injury” and is therefore judicially cognizable (unlike the injury involved in Raines). It was belied by the nature of the legal issue in the case (McGahn’s claim to be “absolutely immune” from congressional subpoena), which did not present a political question but a straightforward question of law clearly susceptible to judicial resolution. Finally, said Jackson, it was at odds with the fact that “the historical record plainly reflects that, since the Revolution, judicial review has been available to ensure that the use of compulsory congressional process and/or the invocation of a privilege with respect to compelled performance is consistent with the law.”
Furthermore, as Judge Jackson pointed out, the Justice Department’s position was not only contrary to the OLC opinions of the 1980s, it was also inconsistent with its current stance in cases where the executive branch seeks judicial assistance. For example, when President Trump sued on separation of powers grounds to block congressional subpoenas that sought his personal financial records, the Department of Justice did not object to the suit as nonjusticiable. It told the Supreme Court in that case, Trump v. Mazars (2020), that Trump had standing because he was suing in his personal capacity, thus supposedly distinguishing it from a congressional subpoena enforcement action. However, when former President Trump sued, this time in his official capacity, to prevent the January 6 committee from obtaining access to his presidential records, the Justice Department still did not object to standing or justiciability. In effect, as Judge Jackson noted, the Justice Department’s position is that the federal courts should be involved in executive-legislative information disputes “only at the pleasure of the President.”
The Department of Justice appealed Judge Jackson’s ruling to the D.C. Circuit, which affirmed in a 7-2 decision by the full court sitting en banc. The majority opinion, while somewhat less harsh than Judge Jackson’s, firmly rejected the Justice Department’s arguments for essentially the same reasons. Two dissenters (Judges Henderson and Griffith), however, agreed with the Justice Department that the case should be dismissed for lack of standing.
Notwithstanding the inconsistencies in its own position and repeated losses in court, the Justice Department has continued to argue that Congress lacks Article III standing to sue the executive branch for information. It raised that argument again in defense of an action brought by Representative Carolyn Maloney (D-N.Y.) and a number of her colleagues on (what was then called) the House Committee on Oversight and Reform under section 2954. It also contended that even if Congress as a whole has standing to assert informational injuries, individual members of Congress acting independently of the legislative body do not. These arguments were rejected by a D.C. Circuit panel, and the full court denied rehearing en banc by a 5-4 vote.
Although the solicitor general argues that Carnahan v. Maloney presents only the narrow question whether individual members of Congress have standing to sue under section 2954, this is not what makes the case worthy of the Supreme Court’s attention. It is clear solicitor general Prelogar hopes the Court’s resolution of Carnahan will overrule or undermine the McGahn decision. For the most part, her argument is the same as the Justice Department’s (to date unsuccessful) argument against congressional standing in general, and it would be difficult to accept that argument without calling into question the constitutionality of all congressional informational lawsuits against the executive. The four D.C. Circuit judges who would have granted en banc hearing in Carnahan (none of whom were part of the majority in McGahn) signaled as much when they acknowledged that the result in Carnahan may be “a logical culmination of this court’s recent decisions on congressional standing,” particularly McGahn.
The stakes in Carnahan v. Maloney therefore go far beyond one obscure federal statute. A victory for the solicitor general could mean a world in which, as the D.C. Circuit explained, “[t]raditional congressional oversight of the Executive Branch would be replaced by a system of voluntary Presidential disclosures, potentially limiting Congress to learning only what the President wants it to learn.” It is that world, not one in which Congress is allowed access the courts to vindicate its undisputed authority to access information in the executive branch, that would be contrary to our history and traditions.
