Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role

Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role

Legal Sidebari

Resolving Subpoena Disputes Between the
Branches: Potential Impacts of Restricting the
Judicial Role
March 25, 2020
An en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) is set to
consider what could turn out to be one of the circuit’s more consequential decisions on congressional
power. In Committee on the Judiciary v. McGahn, the question before the court is whether the House can
invoke the authority of the courts to compel former White House counsel Don McGahn to comply with a
House Judiciary Committee subpoena for his testimony. In February, a three-judge panel of the D.C.
Circuit determined that the House could not, holding that because the House lacked standing, the court
lacked authority to hear the dispute (the reasoning behind that decision is explored in a companion
Sidebar). The Judiciary Committee quickly filed its petition for rehearing before an en banc panel of the
D.C. Circuit, which was granted last week. The order granting rehearing also vacated the February three-
judge panel decision and set oral arguments in the case for April 28, 2020.
The vacated panel opinion would have considerably restricted, and possibly foreclosed, litigation as an
option for resolving congressional information access disputes with the executive branch. Had that
decision stood, it would have largely removed one of Congress’s primary methods of enforcing
subpoenas issued to executive branch officials. The impact—especially long-term—such a restriction
would have on Congress is difficult to discern, but if the en banc D.C. Circuit were to agree with the
three-judge panel and hold that Congress must rely exclusively on its own powers—rather than the
courts’—to enforce its investigative demands, that ruling may affect not only how Congress investigates,
but also how it legislates.
Committee on the Judiciary v. McGahn
The McGahn case arose from a dispute over Congress’s authority to obtain testimony from presidential
advisers. The executive branch asserts that McGahn and other close presidential advisers possess
“absolute testimonial immunity” and cannot be compelled to appear before a congressional committee.
Presidential administrations have asserted that position since at least 1971, but the U.S. District Court for
the District of Colombia rejected that argument in 2008 in Committee on the Judiciary v. Miers. In 2019,
after President Trump directed McGahn not to comply with a Judiciary Committee subpoena for his
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testimony, the Committee filed a civil lawsuit asking that court to direct McGahn to appear before the
Committee.
Endorsing the approach taken in Miers, the district court in McGahn concluded that it had authority to
resolve the dispute, and rejected the Executive’s absolute immunity argument as having “no principled
justification” and “no basis in law.” On appeal, however, that decision was reversed, with a divided three-
judge panel holding—mainly on standing and separation of powers principles—that the courts lack
authority to resolve this type of “pure” “interbranch quarrel” over information access. (Although McGahn
is now a private citizen, the lead opinion viewed the case as a “pure interbranch dispute” with “no bearing
on the ‘rights of individuals.’”) Instead, the court held, Congress must leverage its own legislative powers
(ranging from harnessing public opinion, to legislation and appropriations, to impeachment) to “bring the
executive branch to heel.” Although refusing to provide the Committee with the requested relief, the
appellate court did not endorse the DOJ’s assertion of absolute immunity. It instead appeared quite
skeptical, with two of the three judges questioning whether McGahn would have prevailed on the merits
if the court had the power to resolve the case.
As noted, the panel decision was vacated in an order issued by a majority of judges on the D.C. Circuit
who agreed to rehear the case en banc (meaning the case is to be heard before all active circuit judges
who have not been recused). As such, the en banc court is scheduled to reconsider whether Congress can
invoke the assistance of the courts to resolve subpoena disputes between the branches.
Enforcing Congressional Subpoenas: A Brief History
Addressing how the McGahn case could impact Congress’s ability to conduct oversight requires an
understanding of how Congress enforces its subpoenas. Subpoena enforcement is not a one-size-fits-all
exercise. The process, though at times “messy,” can be tailored to each dispute and is generally shaped by
the strength of the Executive’s desire to keep information confidential and Congress’s willingness to exert
its will to compel disclosure. Most frequently, obtaining information from the executive branch involves
negotiation and compromise from both sides—as well as the strategic application of political pressure—
rather than sheer legal force. It is also historically a fluid process that has evolved together with the
balance of power between the branches.
Prior to 1857, both chambers used a process known as inherent contempt to enforce subpoenas. This
involved directing the Sergeant at Arms to arrest witnesses who refused to turn over documents or provide
testimony, and then detaining them until they gave Congress what it demanded. Inherent contempt had the
benefit of requiring no assistance from either the executive or judicial branches, but the process was time
consuming and witnesses could be held only temporarily. So in 1857, Congress enacted the criminal
contempt statute to complement the inherent contempt power with an easier and more efficient process.
That statute made non-compliance with a congressional subpoena a federal crime. Under the statute (now
2 U.S.C. §§ 192, 194), the House or Senate could simply certify an offending witness to the executive
branch for criminal prosecution, whose duty it would be to present the matter to a grand jury. This
streamlined criminal process soon overtook the more cumbersome inherent contempt process, and by the
1930s inherent contempt had fallen out of use entirely.
Subpoena enforcement continued to evolve as the branches brought their own institutional interests to
bear. The conflict between Congress and the Presidency over President Nixon’s White House tapes led
Congress to pursue a third subpoena enforcement option: civil enforcement through the courts. After
President Nixon—citing executive privilege—refused to comply with Senate Watergate Committee
subpoenas for recordings of his Oval Office conversations, the Committee determined that it would be
“unseemly” to attempt enforcement directly against the President through either criminal or inherent
contempt. Instead, after enacting a statute explicitly granting the D.C. District Court jurisdiction over the
matter, the Senate Watergate Committee went to federal court, asking the judiciary to issue an order

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directing the President to provide the Committee with the subpoenaed tapes. The D.C. Circuit heard that
claim, but ultimately ruled that the Committee had not overcome the President’s privilege.
Perhaps hesitant after that loss, Congress did not ask the courts to enforce a subpoena against an executive
branch official for another thirty years. That eventual return to the courts was at least partly attributable to
another intervening development. In 1984, the executive branch asserted that it would not prosecute
executive branch officials for criminal contempt of Congress when executive privilege formed the basis
for non-compliance with a congressional subpoena. The executive branch has reiterated that position—
which is based on its understanding of the separation of powers and prosecutorial discretion—numerous
times. The DOJ has also subsequently declined to prosecute executive branch officials in scenarios that
have not involved claims of executive privilege, but where the DOJ has otherwise concluded that a
prosecution would not be proper. Because of this asserted discretion, criminal contempt of Congress has
been rendered nearly ineffective as an enforcement tool in information access disputes against the
executive branch. Since 2008, the House has cited at least six current or former executive branch officials
for violations of the criminal contempt statute. The executive branch, however, has not taken action on
any of those referrals.
In light of the Executive’s unwillingness to move forward with criminal contempt citations and
Congress’s continued disinclination to use its inherent contempt powers to enforce subpoenas against
executive officials, the House turned back to the federal courts to enforce subpoenas. In 2008 and 2012,
House committees filed subpoena enforcement suits to force the executive branch to turn over
information or provide testimony. In each case the district court determined it had authority to hear the
claim, and in each case the House won on the merits. However, appeals in both cases took significant time
and were ultimately settled before any precedential appellate decision on the merits was reached.
The House has increasingly used civil subpoena enforcement during the 116th Congress, perhaps due to
an increase in the frequency and severity of information access disputes with the executive branch. The
House has filed three subpoena enforcement cases against current or former executive branch officials
this Congress, with McGahn having been the first to receive a judicial decision.
With this history in mind, the effect of removing civil enforcement from the investigations toolbox comes
into focus. If the D.C. Circuit en banc panel were to reach a decision in McGahn similar to that reached
by the three-judge panel, the result would be that of Congress’s direct tools to compel compliance with
subpoenas, none would appear to be practicable to use against executive branch officials. Inherent
contempt appears to be a relic of the past that Congress has not been willing to revive (perhaps because of
the potential risks associated with the exercise of that power, including the possibility of a stand-off
between the Sergeant at Arms attempting to arrest an executive branch official and executive branch law
enforcement charged with protecting that official). Criminal contempt appears to be of limited utility as
executive branch policy makes criminal prosecutions against executive branch officials unlikely. And
finally, a decision in McGahn that mirrors the panel decision would largely foreclose civil enforcement
lawsuits.
The Possibility of Subpoena Enforcement Without the Courts
Although any opinion in McGahn would bind only courts within the D.C. Circuit, it is particularly
consequential because Congress, the White House, and most federal agency headquarters are located
within the circuit, and for that reason, it is where congressional subpoena enforcement lawsuits against
executive branch officials have generally been brought. Still, there could be specific scenarios in which a
chamber of Congress may be able to file subpoena enforcement lawsuits in other courts that are not bound
by any D.C. Circuit opinion—for example if a federal official lives or works outside of the District of
Columbia. That limited option notwithstanding, the en banc decision in McGahn will likely govern the
vast majority of subpoena enforcement lawsuits.

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The en banc court could resolve McGahn in a number of different ways. It could, for example, avoid the
separation of powers issues—based on McGahn’s current status as a private citizen rather than an
executive branch official—by disagreeing with the earlier opinion’s characterization of the case as a “pure
interbranch dispute.” That would likely result in the court then simply addressing whether McGahn can be
made to appear. But if the court views the case as a dispute between the branches, and concludes both that
the House has standing and that the courts can hear interbranch subpoena enforcement cases, it would be
the first appellate level decision to so hold. Such an opinion would likely go a long way to solidify a
chamber of Congress’s ability to use the courts as a means of resolving informational access disputes with
the executive branch.
But the en banc court could also reach a holding similar to the three-judge panel. Given that possibility, it
is important to consider what losing the courts as an option for subpoena enforcement would mean for
Congress. The remainder of this Sidebar considers possible congressional responses to a potential new
landscape in which the D.C. Circuit determines that the courts lack authority to adjudicate investigative
disputes between the branches. In such a scenario, Congress—as it has in the past—may be compelled to
adjust its approach.
Statutory Authorization for Subpoena Enforcement Lawsuits
If Congress wished to retain the courts as an enforcement option, it could attempt to enact a statute that
clearly authorizes the federal judiciary to hear House and Senate lawsuits to enforce subpoenas against
executive branch officials. (An existing statute authorizes Senate subpoena enforcement lawsuits, but
does not apply to suits against executive branch officials asserting a “governmental privilege”; whether
this statute complements or circumscribes the Senate’s ability to enforce subpoenas against executive
branch officials through other means is briefly discussed in a CRS Report.)
The lead opinion in the February McGahn opinion suggested that a statute specifically authorizing
judicial enforcement of congressional subpoenas “might” cause the court to reassess the House’s
standing. Such a statute, the court reasoned, “could mitigate the separation-of-powers considerations that
counsel against adjudicating interbranch disputes” by “reflect[ing] Congress’s (and perhaps the
President’s) view that judicial resolution of interbranch disputes is” appropriate. The dissenting judge,
however, contended that because the lead opinion rooted its decision in constitutional separation of
powers and standing principles, its invitation contradicts the well-established principle that Congress
cannot “overrule a constitutional holding of [a] court” through enactment of a statute. As such, the
effectiveness of such a statute remains uncertain. (The lead opinion specifically declined to assess
whether a current statute authorizing Senate subpoena enforcement was permissible either generally or in
application to executive branch officials.)
Leveraging Legislative Powers to Encourage Compliance
Congress could also take another recommendation from the lead opinion in the February McGahn
decision and—rather than “dragging judges into the fray”—exercise its own legislative powers to enforce
congressional demands for information from the Executive. Congress, the court noted, has a variety of
“political tools” to encourage the executive branch to comply with informational requests, and using (or
threatening to use) those powers has always been part of each chamber’s approach to compelling reluctant
executive branch witnesses to disclose information. Congress’s toolbox in this respect is indeed “ample.”
Most powerful among these tools are Congress’s legislative and appropriations powers which can be
wielded to either directly compel executive branch disclosures or to indirectly incentivize compliance
with congressional requests.
But these tools are also “imperfect.” As the dissenting judge in the February McGahn decision noted,
Congress generally may only exercise its legislative powers through the “finely wrought and exhaustively

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considered[] procedure” set forth in Article I, Section 7 of the Constitution, which requires that legislation
pass both houses of Congress and be presented to the President before it is given legal effect. In the
current environment, in which control of the House and Senate is split between the two major political
parties, agreement among the two chambers has often been elusive. Moreover, even if the House and
Senate did agree on a legislative response to executive branch failures to comply with investigative
subpoenas, any measure, especially a freestanding one, would likely be opposed by the President and fall
victim to a veto. Thus, Congress’s most powerful tools could be limited to situations in which both the
House and Senate are substantially unified, such that Congress as a whole could override a possible veto.
Nevertheless, to the extent consensus is possible, a D.C. Circuit decision eliminating the civil
enforcement option could act as a catalyst for a potentially more prompt and effective approach to
subpoena enforcement by incentivizing the use of legislative powers to support committee investigations.
Absent that unity, however, each chamber of Congress would be left only with those enforcement tools
that it can wield on its own. As noted above, the two primary single-chamber subpoena enforcement tools
would be severely limited if the D.C. Circuit were to rule against the House in a manner similar to the
three-judge panel, as citing officials with criminal contempt of Congress has not proven successful in
compelling executive compliance with a chamber’s information requests and judicial enforcement of
congressional subpoenas by a chamber against executive officials would be greatly circumscribed.
Other available one-house tools like censure, committee hearings, resolutions of inquiry, or harnessing
public opinion generally can only be used to influence, rather than compel, executive branch action. And
while each chamber has additional, unique tools to pressure the executive branch, the effectiveness of
these tools may depend on a number of factors. The House, for example, could potentially threaten to
impeach an executive officer who fails to comply with a House subpoena, but this tool may be of limited
utility if the Senate is unlikely to convict and remove the official from office for a failure to cooperate
with a congressional investigation. And while the Senate may threaten to withhold its advice and consent
to treaties or appointments to important government offices until certain subpoenas are complied with, the
effectiveness of this threat may depend on how the executive branch weighs the importance of Senate
approval of a treaty or appointment against its interest in maintaining the confidentiality of the
information it is withholding from the legislature.
Besides these tools, what would be left for a chamber of Congress that seeks to pressure the Executive to
comply with an information request? There appear to be two primary options. First, a chamber may
attempt to attach legislative language combating executive branch withholding of information to “must
pass” legislation likely to be approved by the other chamber and either signed by the President or passed
with a veto-proof majority. For example, a chamber could add a rider to an important appropriations bill
that limits funds to a specific executive branch agency until it complies with an outstanding committee
subpoena. Second, the House or Senate could simply withhold its consent to legislation—particularly
appropriations bills or measures that align with the executive branch’s legislative priorities—until the
Executive complies with certain subpoenas. Although a chamber of Congress cannot, on its own, enact
affirmative restrictions or prohibitions on the executive branch, it can prevent the enactment of legislation
that the executive branch desires.
If the House or Senate withholds its consent to legislation as a tool to enforce subpoenas, then the
unavailability of the courts to enforce subpoenas may not only impact how Congress investigates, but also
how it legislates. Indeed, with only limited practical mechanisms to force compliance with its subpoenas
at each chamber’s disposal, it is possible that one impact of the courts refusing to hear congressional
subpoena enforcement lawsuits may be an increase in the frequency of disagreements between the House
and Senate on legislative matters. Withholding consent to legislative measures a chamber may otherwise
have approved in order to support investigative inquiries may be a powerful tool of leverage for
encouraging executive branch compliance with committee subpoenas. But doing so may also make House
and Senate agreement on consequential legislation more difficult to achieve if each chamber regularly

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makes its support contingent upon executive compliance with its information demands. As the Judiciary
Committee asserted in its petition for rehearing en banc, use of political tools to enforce subpoenas could
“invite further constitutional brinksmanship and are poor substitutes for judicial subpoena enforcement.”
Giving New Life to Inherent Contempt
One or both houses of Congress could also choose to reinvigorate the inherent contempt power. This
would likely be done through alterations to each chamber’s rules, and thus would not require any
agreement or participation from the other chamber or the President. When McGahn initially was heard
before the three-judge circuit panel, the dissent cast some doubt on the practicality of this option, but that
was “so long as a more peaceable judicial alternative remains available.” It is important to note that only
two executive branch officials have been detained using inherent contempt, neither of which involved
claims of executive privilege. And the executive branch, as the dissent noted, contends that inherent
contempt cannot be used to arrest and detain an executive official asserting a claim of executive privilege.
Nevertheless, the House or Senate could, for example, attempt to use the inherent contempt power to levy
fines on non-compliant witnesses rather than to detain them. This option, and others, are discussed in
greater detail in a CRS report.
Conclusion
Congress’s approach to enforcing its subpoenas has evolved as the House and Senate have adapted to
changing circumstances in order to maintain effective ways of forcing the executive branch to comply
with congressional demands for information. Depending on how the D.C. Circuit rules, the McGahn case
could represent either another significant turning point in this long history or confirm Congress’s
authority to enlist the aid of the courts in adjudicating subpoena disputes between the branches. If the
latter, Congress would retain what has become an important tool for responding to executive branch non-
compliance with congressional subpoenas. If the former, Congress could respond by reasserting its own
powers in a way that ultimately develops into an effective approach to enforcing committee subpoenas.
But if the courts remove themselves from these interbranch disputes, and Congress does not adjust to the
changing landscape, it is possible that Congress’s ability to enforce its investigative powers could
deteriorate until subpoenas to the executive branch are reduced to formalized requests for information
rather than enforceable demands.

Author Information

Todd Garvey

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of

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