Case Highlights Weakness of Legislative Subpoena Enforcement as Congress Continues to Allow Executive Branch to Deny Access to Most Effective Enforcement Options and Forfeits its Contempt Authority to the Courts
Washington, D.C. – Dr. William J. Murphy, President of Good Government Now (GGN), issued the following statement in response to the McGahn ruling:
“The DC District Court ruling in the McGahn lawsuit is a Pyrrhic victory for Congress that further damages legislative subpoena enforcement authority by perpetuating a dysfunctional pattern that has been undermining congressional investigative power for over a decade.”
“Congress has again allowed the executive branch to deny it access to its most effective subpoena enforcement methods, forfeited its ultimate authority to decide contempts to the courts, subjected itself to the delays of prolonged civil litigation, and risked adverse judicial decisions further subversive of legislative enforcement authority without gaining anything other than an affirmation of the findings of a previous district court decision that considered the same questions over a decade ago. Most importantly, the ruling won’t solve the problem of compelling Mr. McGahn to testify and will instead result in prolonged appeals likely to consume most, if not all, of the remaining legislative session. The case therefore showcases the need for Congress to strengthen and diversify its enforcement arsenal by reviving inherent and criminal contempt.”
“To begin with, the very decision of the House to attempt to enforce the McGahn subpoena by filing a civil lawsuit itself is another congressional surrender to the executive branch in the long-running campaign of DOJ to deny Congress the ability to employ its constitutionally recognized and historically two most effective subpoena enforcement methods, the inherent and criminal contempt procedures, and instead forces it to rely on the inferior civil enforcement process.”
“Inherent and criminal contempt have produced superior results historically because they credibly threaten executive branch officials and others who defy congressional subpoenas with severe personal punishment including the possibility of fines and imprisonment. Civil enforcement has proven an inferior alternative precisely because it fails to confront defiant witnesses with any such credible threat of significant personal punishment, with the inevitable result that Congress has encountered more resistance, obstruction, and delaying tactics the more it relies on this method. When Congress goes to court to enforce subpoenas, it is not getting tough with the executive branch. Rather, it is acquiescing in executive branch manipulations that shut down its most powerful enforcement options.”
“Congress also unjustifiably forfeits its absolute final authority to rule on contempts to the courts when it relies on civil enforcement. There is no good reason for it to do so when each House possesses all necessary powers to decide and punish contempts itself internally and unilaterally through the inherent contempt process. This practice also undermines congressional authority by creating the false impression that courts are the appropriate final arbiter of disputes over subpoenas and executive privilege, a notion at the heart of an ill-informed conventional wisdom that has taken root in contemporary debates.”
“The McGahn case again illustrates how civil enforcement actions are plagued by prolonged litigation and other delays that render them unsuitable for achieving prompt and effective oversight actions. It has taken the House seven months to obtain an initial court decision since the Judiciary Committee issued the McGahn subpoena on April 22nd and the House authorized it to file suit on August 7th. Appeal of this decision, which was immediately initiated by DOJ to stay its effects, is likely to take at least another six to twelve months and could well leave this matter unresolved until after the end of the current session of Congress, a common occurrence in such civil enforcement proceedings.”
“Furthermore, Congress unnecessarily risks adverse judicial decisions potentially harmful to its future enforcement authority when it initiates civil enforcement, as has already occurred, most notably with the deliberative process privilege elements of the ruling in the Fast and Furious case. Although the district court ruled favorably for Congress on the McGahn matter in a comprehensive decision affirming three critical findings of the 2008 Miers opinion including that Congress could use courts to enforce executive branch subpoenas, alleged absolute testimonial immunity of presidential advisors was invalid, and judicial subject matter jurisdiction over subpoena disputes didn’t violate separation of powers; the practical effect of both opinions underscores the Pyrrhic nature of their result. Even if the current ruling is upheld on appeal, all the committee will have won is the opportunity to pose its questions to McGahn. If he claims executive privilege pursuant to the president’s direction and the committee rejects its applicability, another appeal process delay is certain. Moreover, despite its erudition, the McGahn decision did not adequately emphasize the most important judicial precedents and historical practices supportive of the inviolable congressional self-protective enforcement power, which clearly is not optimal for preserving legislative authority.”
“Finally, the enforcement weaknesses revealed by the McGahn experience also highlight the necessity for Congress to diversify its subpoena enforcement methods by reclaiming its lost inherent and criminal contempt powers. Congress should immediately implement the inherent contempt fines rule with independent prosecutions for criminal contempt provision recommended by Good Government Now (GGN) to achieve this goal. GGN’s proposal, authored by GGN Senior Fellow and congressional oversight expert Mort Rosenberg, would establish a process for the House to conduct trials of, convict, and directly sanction executive branch officials who defy congressional subpoenas with heavy personal fines. The rule also authorizes the House to appoint private attorneys to prosecute persistently recalcitrant executive branch officials for criminal contempt if stiff fines are not sufficient to compel their compliance with a subpoena, an unfortunate necessity given DOJ’s refusal to enforce the criminal contempt law faithfully since 2006.”
