The House generally uses two procedures for initiating or intervening in a civil lawsuit. First, the full House may approve a resolution to authorize such action. Second, the action can be authorized by the Bipartisan Legal Advisory Group (BLAG), which consists of the House Speaker and members of the majority and minority leadership and has authority under House Rule II(8)(b) to articulate the House position in litigation matters.
The House position is that it has an inherent constitutional right to issue and enforce subpoenas, relying on the Supreme Court’s decision in McGrain v. Daugherty that “the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function.” According to the House, the House and its authorized committees have standing to bring subpoena enforcement lawsuits because noncompliance injures House institutional interests and prevents the House from carrying out its investigative responsibilities. The House further maintains that the House has a cause of action to enforce investigative subpoenas under both (1) Article I of the Constitution, which is the source of authority for Congress to issue investigative subpoenas, and (2) the Declaratory Judgment Act, which provides that parties may obtain a judicial declaration of their “rights and other legal relations” in a case involving an actual controversy. An additional basis for obtaining judicial enforcement exists when the subpoena recipient is an executive branch official under the doctrine that federal courts have equitable powers to grant relief to address unlawful conduct by executive officials.
In 1978, Congress enacted a law codified at 28 U.S.C. § 1365 that authorizes judicial enforcement of Senate subpoenas issued to private parties. The House position is that this statute provides an additional avenue of enforcement for the Senate but does not limit existing House civil enforcement authority. In its legal briefings, the House has argued that nothing in the express language of that statute precludes House subpoena enforcement and that statements in the legislative history support this interpretation.
In recent years, the House has initiated lawsuits to enforce investigative subpoenas on five occasions:
In the first two lawsuits, the federal district court in Washington, D.C., upheld the House’s right to enforce its subpoenas. The third and fourth lawsuits were resolved by parties without a court ruling on legal claims relating to the House’s enforcement authority. In the fifth lawsuit, the en banc D.C. Circuit affirmed the House’s standing to file an enforcement action but did not resolve the cause of action issue because the matter became moot when McGahn agreed to voluntarily testify.
In 2008, the House approved a resolution authorizing the House Judiciary Committee to initiate civil proceedings to enforce subpoenas to Bush White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolton for documents and testimony relating to the Committee’s investigation of forced resignations of U.S. Attorneys in 2006. This action followed (1) the refusal by Miers to appear or produce documents on the grounds that senior advisors to the President have “absolute immunity” from compelled congressional process and (2) the refusal by Bolton to produce documents or provide a privilege log describing the documents on similar grounds.
In this case, Committee on Judiciary v. Miers, a federal district court in the District of Columbia held (1) that the Committee had met the Article III standing requirements because it was seeking judicial redress for an injury that consisted of “both the loss of information to which it is entitled and the institutional diminution of its subpoena power”; (2) that the Committee had a cause of action under the Declaratory Judgment Act, as well as an implied cause of action to seek relief that is derived from its Article I powers; and (3) that presidential advisors did not have absolute immunity from Congress.
During the Obama Administration, the House authorized the Committee on Oversight and Government Reform to initiate judicial proceedings to enforce a subpoena for documents and testimony to Attorney General Eric Holder relating to the Committee’s investigation of a gun smuggling interdiction initiative of the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). This action followed a refusal by Holder on executive privilege grounds to produce a subset of documents concerning why the Department had taken certain actions during the course of the congressional investigation of the operation.
Like the court in Miers, the federal court in the Holder case ruled the House Oversight Committee had established an institutional injury sufficient to establish standing, stating, “Here, the Committee has requested a particular set of documents in the course of an official investigation, it has issued a subpoena for that material, the Attorney General has withheld a clearly delineated subset of that material, and the House of Representatives has specifically authorized the initiation of this action to enforce the subpoena.” The court also determined that the Committee had established a cause of action by invoking the Declaratory Judgment Act to enforce its implied Article 1 constitutional right to issue subpoenas, stating that while “in most cases a plaintiff would need to identify a statutory (or a common law) cause of action to proceed in federal court,” no independent cause of action needs to be identified where the Constitution is “the source of the right allegedly violated.” The court rejected the executive branch’s motion to dismiss, ruling that the Constitution does not bar judicial review of the executive branch’s claim of privilege in response to a legislative demand nor did prudential considerations merit dismissal.
The courts in both Miers and Holder also declined to exercise their equitable discretion to dismiss the cases.
In July 2019, upon receiving authorization from the House BLAG, the House filed a lawsuit to enforce House Ways and Means Committee subpoenas, as well as requests by the Committee under the provisions of 26 U.S.C. § 6103(f), for tax return information relating to former President Donald J. Trump. The district court in January 2020 issued a stay pending Circuit Court proceedings in a case with related claims, Committee on Judiciary v. McGahn (discussed below). During the time of the stay, the Department of the Treasury agreed to comply with a new June 2021 request for certain tax return information related to President Trump by the Ways and Means Committee under 26 U.S.C. § 6103(f), and the House voluntarily dismissed its complaint to enforce its 2019 subpoenas and 2019 statutory request. (For a discussion of congressional access to tax information, see this Co-Equal summary.)
In November 2019, upon receiving authorization from the House Bipartisan Legal Advisory Group, the House filed a lawsuit to enforce subpoenas issued by the House Oversight Committee to Secretary of Commerce Wilbur Ross and Attorney General William Barr to investigate the Trump Administration’s plan to include a citizenship question on the 2020 U.S. Census. This step followed a June 2019 Supreme Court ruling that the Administration’s plan was based on a pretextual rationale and was illegal, and a July vote by the House of Representatives to hold Secretary Ross and Attorney General Barr in contempt for defying the subpoenas. After the election of President Biden, the parties reached an agreement that enabled the Committee to review the documents, which led the parties to dismiss the case without a court ruling on legal claims relating to the House’s enforcement authority.
In April 2019, the House approved a resolution authorizing civil action to enforce a House Judiciary Committee subpoena to former White House Counsel Donald McGahn relating to allegations that President Trump sought to obstruct the investigation by Special Counsel Robert Mueller into Russian interference in the 2016 presidential election. Pursuant to a directive from the Trump White House, McGahn refused to provide testimony to the Committee. In August 2019, the Committee filed suit in the federal district court in Washington, D.C., to enforce its testimonial subpoena to McGahn.
In November 2019, the district court ruled in favor of the Committee and ordered McGahn to comply with the subpoena. McGahn requested and was granted a stay of the order pending appellate review, and a three-judge appellate panel then dismissed the suit, ruling 2-1 that the Committee lacked standing. The D.C. Circuit reheard the case en banc and reversed the panel’s decision on standing 7-2 on August 7, 2020. The en banc Circuit remanded the case to the panel with instructions to consider the remaining legal claims.
The three-judge D.C. Circuit panel then dismissed the suit a second time on August 31, 2020, ruling 2-1 that the House failed to state a viable cause of action. The panel relied on the absence of any statute giving the House express authority to enforce its subpoenas in court. It further found that the Declaratory Judgment Act does not provide a cause of action as it is merely procedural and does not create substantive rights, and it declined to exercise equitable discretion to hear the case.
Following the three-judge action dismissing the suit, the en banc D.C. Circuit granted the Judiciary Committee’s request for a second rehearing. Before the D.C. Circuit could issue a second en banc opinion, however, the incoming Biden Administration resolved the dispute by agreeing that McGahn could testify behind closed doors and filed a joint motion with the House to dismiss the case and vacate the three-judge panel’s August 31, 2020, opinion. In July 2021, the D.C. Circuit accepted the motion and dismissed the case. The vacation of the panel decision and the absence of any other appellate court ruling to date leaves open the question of whether an express federal statute is a prerequisite for establishing a cause of action to obtain judicial enforcement of a congressional subpoena.
Title VII of the 1978 Ethics in Government Act addresses civil enforcement of a Senate subpoena. Section 703 (2 U.S.C. § 288b) requires adoption of a Senate resolution before Senate Counsel may bring a civil action to enforce a subpoena. Section 705(c) (2 U.S.C. § 288d(c)) specifies certain procedures the Senate must follow before adopting the resolution, such as the requirement that the committee or subcommittee seeking enforcement file a report describing the procedures followed in issuing the subpoena, the extent to which the target complied, objections or privileges the target raised, and “the comparative effectiveness” of bringing a civil action, certifying a criminal contempt of Congress, or initiating an inherent contempt proceeding. The Senate vote on a resolution to initiate a civil action is not privileged, so it can be subject to a filibuster.
Section 705(f) of the Ethics in Government Act amends the jurisdiction of the federal district courts by creating a new section, 28 U.S.C. § 1365, expressly authorizing judicial enforcement of Senate subpoenas. The statutory language, however, contains a major limitation. It states that the section “shall not apply to … any subpoena … issued to an officer or employee of the executive branch of the Federal Government acting within his or her official capacity.” During consideration of the legislation, the Senate Committee with jurisdiction over the bill stated that this language “is not intended to be a Congressional finding that the federal courts do not now have authority to hear a civil action to enforce a subpoena, against an officer or employee of the Federal Government.
Senate enforcement actions since enactment of the 1978 statute have concerned subpoenas to private parties. The most recent Senate civil enforcement action concerning a subpoena to the executive branch appears to be litigation initiated in 1973 to enforce a subpoena to President Nixon from the Senate Select Committee to Investigate Presidential Campaign Activities. In that proceeding, the Senate position was that the “federal question” statute codified at 28 U.S.C.
§ 1331 provides federal courts jurisdiction to review Senate enforcement actions. At the time that case was initiated, the federal question statute contained an “amount in controversy” requirement of $10,000. The court found that the Senate failed to establish that the amount in controversy met this threshold, so the federal question statute did not apply. The Senate appealed this ruling, and in the interim Congress swiftly enacted a statute specifically stating that the Senate Select Committee was authorized to sue to enforce a subpoena to the President and that the federal district court in the District of Columbia had jurisdiction to review civil subpoena enforcement actions brought by that Committee “without regard to the sum or value of the matter in controversy.” The D.C. Circuit subsequently reviewed and ruled on the merits of the Select Committee’s claim, declining to enforce the subpoena to the President on grounds of executive privilege. In 1976, Congress enacted legislation removing the amount in controversy requirement from the federal question statute with respect to suits against the United States or its officers, and in 1980 Congress enacted legislation removing the amount in controversy requirement from the federal question statute altogether.
Going forward it is likely that Senate efforts to enforce subpoenas against executive branch officials will encounter challenges similar to those faced by the House regarding whether there is an existing cause of action for such suits, given that the recent McGahn litigation left that issue unresolved.
