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Favorable McGahn Decision Won’t Remedy Congressional Subpoena Enforcement Failures

Tuesday, August 11, 2020 8:00am
Media Contact: Bill Murphy •
(610) 529-6494 (m)

*Reliance on civil litigation fails to establish credible threat of personal punishment necessary to motivate witness cooperation

*Congress continues to forfeit the absolute right of its committees to make initial rulings on all claims of executive privilege

*McGahn ruling won’t change that prolonged delays of civil litigation render it useless as an effective support of legislative inquiry  

*Inherent contempt fines proposal introduced by Rep. Lieu and co-sponsors offers a promising solution to these shortcomings

Washington, DC – Advocacy group Good Government Now (GGN) said in a statement today that despite several favorable elements of Friday’s DC Circuit Court decision in the McGahn case, the dominant theme of congressional oversight efforts continues to be unmitigated failure to enforce legislative subpoenas contested by executive branch officials.

The group noted that although the circuit court’s clarification that the houses of Congress have standing to enforce subpoenas in federal court and related findings are unquestionably beneficial, this ruling, like the earlier favorable district court decision in this case, ultimately represents a Pyrrhic victory in which Congress continues its pattern of damaging its authority by ill-considered reliance on civil litigation to attempt to enforce legislative subpoenas.

GGN President Dr. William J. Murphy said, “In electing to pursue civil enforcement of the McGahn subpoena, Congress has again: (1) allowed the executive branch to deny it access to its historically most effective enforcement methods, (2) failed to establish a credible threat of significant personal penalties for noncompliant witnesses, (3) forfeited to the courts its absolute authority to make initial rulings on all claims of executive privilege, (4) subjected itself to the delays of prolonged civil litigation, and (5) risked adverse judicial decisions further subversive of legislative enforcement authority concerning questions upon which it prevailed in earlier cases.”

“The Inherent Contempt Resolution introduced in the House by Rep. Ted Lieu (D-CA) in June and now supported by 17 co-sponsors offers a promising solution to these problems by providing for fines up to $100,000 for contempt of Congress imposed in an expeditious procedure that would fully assert the authority of committees to rule on all executive branch objections to their information demands as well as establish summary floor trials to quickly convict and penalize government officials who defy subpoenas,” Murphy said.

Even in a decision so favorable to Congress, the review of facts and circumstances accompanying the court’s findings reveals an undeniable failure by the House to effectively enforce the subpoena to former White House Counsel McGahn, GGN observed. 

For example, one of the most important elements of the decision was the majority’s explanation of the necessity of a credible legislative enforcement threat as an incentive for executive branch officials to reach an agreement with Congress during the negotiation and accommodation process. But in opting to pursue civil litigation to enforce the McGahn subpoena, Congress has chosen the weakest of the available enforcement methods and one that fails to confront individual witnesses with the type of credible threat of personal punishment necessary to motivate them to cooperate.

GGN Senior Fellow Morton Rosenberg also emphasized that, “The McGahn case is again illustrating how civil enforcement actions are crippled by prolonged litigation and other delays that render them unsuitable for achieving prompt and effective oversight actions.  The en banc circuit court decision comes almost sixteen months after the House Judiciary Committee issued the McGahn subpoena on April 22, 2019.”

To make matters worse, the en banc court has remanded consideration of the threshold issues of subject matter jurisdiction and an applicable cause of action back to the circuit court panel. This litigation and related appeals won’t be resolved before the end of the current session of Congress rendering them useless for effective oversight and leaving Congress in default of proper execution of this constitutionally mandated responsibility.

Even more problematically, the court has ruled only that Mr. McGahn must appear for testimony.  Any objections he raises to questions propounded by Congress are likely to become the subjects of additional litigation that will become mired in further delay. These intolerable results are common occurrences in civil enforcement proceedings that render them unsuitable supports to effective legislation and oversight.

“Congress cannot allow its enforcement powers to be paralyzed by the infirmities of the civil enforcement method,” Murphy said. “Rather, the House should immediately adopt the inherent contempt fines proposal introduced by Rep. Ted Lieu and his co-sponsors on June 29th.” 

“Both Houses of Congress should also consider imposing fines up to $250,000 if necessary as well as supplementing this enhanced monetary penalty with independent criminal prosecutions of persistently recalcitrant witnesses by congressionally-appointed attorneys that could impose an additional $100,000 in criminal fines and up to one year in prison in the event the inherent contempt fines alone are insufficient to motivate compliance with a subpoena.  These proposals would directly and effectively address the root cause of declining congressional enforcement authority by restoring a credible threat of significant personal punishment for those who defy congressional subpoenas,” Murphy explained.

GGN’s statement concluded by emphasizing that the inherent contempt fines procedure and provision for independent criminal contempt prosecutions by congressionally-appointed attorneys can be implemented by passage of a simple House or Senate resolution.  Moreover, penalties imposed through these enforcement mechanisms are not subject to the presidential pardon power. Most important of all, these inherent contempt powers are constitutionally indispensable and cannot be encroached upon or diminished in any way by the other branches nor ceded by Congress itself, either voluntarily or involuntarily.

Bill Murphy is available for interviews and comment at
(610) 529-6494 or

More information about Good Government Now’s subpoena enforcement proposals are available on our website at

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— End of Press Release —

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