The power of U.S. House of Representatives investigative committees to demand in-person testimony from Executive Branch officials during hearings was limited Monday when a District of Columbia Circuit Court of Appeals panel ruled that absent new legislation, House lawmakers lacked authority to enforce their subpoena against former White House counsel Don McGahn in federal court. If the decision stands, its reasoning also has the potential to fundamentally alter congressional oversight and investigations because it could impair the House’s ability to demand and obtain information from unwilling sources.
In U.S. House of Representatives v. McGahn, the D.C. Circuit ruled that the House did not have a cause of action to enforce its subpoena against Mr. McGahn in federal court. The House argued that a cause of action was implied under Article I and the Declaratory Judgment Act (DJA). In addressing the House’s Article I argument, the D.C. Circuit examined federal statutes that govern the enforcement of congressional subpoenas in federal court. The D.C. Circuit rejected the House’s Article I argument on the ground that current federal law exclusively authorizes the Senate to enforce subpoenas in federal court. That statute also expressly excludes cases involving the executive branch’s assertion of governmental privilege, which would include the McGahn subpoena. The court then noted that causes of action based on implied authority are disfavored when the cause of action would conflict with the express intent of Congress. As such, the court ruled that Article I did not provide the House with a cause of action to enforce its subpoena against Mr. McGahn.
The D.C. Circuit also rejected the House’s DJA argument because that statute does not authorize an independent cause of action. Instead, the DJA allows federal courts to declare actions unlawful when the plaintiff has already asserted an independent cause of action. Because the D.C. Circuit had already ruled that the House did not have authority under Article I, the court ruled that the House could not allege a cause of action to enforce subpoenas under the DJA.
House Speaker Nancy Pelosi, D-Calif., criticized the ruling in a statement Monday.
“If allowed to stand, this wrong-headed Court of Appeals panel ruling threatens to strike a grave blow to one of the most fundamental Constitutional roles of the Congress: to conduct oversight on behalf of the American people, including by issuing our lawful and legitimate subpoenas,” she wrote. “In the past, both Republicans and Democrats have successfully sought to enforce House subpoenas in court.”1
Speaker Pelosi said, “The House will immediately pursue an en banc rehearing of this decision.”2
In the meantime, and if McGahn stands, the reasoning of the decision could have important implications for companies and individuals that are subject to House inquiries. The issuance of a House subpoena is rare because the terms of an investigation are usually negotiated. But if the threat of an enforceable subpoena to compel compliance with investigation requests is removed, it could affect the balance of power. Of course, companies cannot ignore requests from Congress. First, they should be mindful that this new potential leverage does not equally apply to investigations conducted by the Senate. Subpoenas issued by the Senate are expressly judicially enforceable under 28 U.S.C. § 1365, which provides the Senate with broad authority to enforce subpoenas in federal court. Also, the House possesses significant formal power, including the threat of criminal prosecution for contempt of Congress and even potentially the use of its long-dormant “inherent contempt” power to unilaterally enforce its subpoenas.
1 See Pelosi Statement on Court of Appeals Panel Ruling in McGahn Case (August 31, 2020), https://www.speaker.gov/newsroom/83120.
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