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March 5, 2020

Note From Elie: The Scrawny, Slightly Awkward Subpoena for Don McGahn

Dear Reader,

Ask former prosecutors what they most miss about the job, and you’ll likely hear an answer like “my colleagues” or “the people.”  But once the sentimental stuff passes and you get down to brass tacks of the investigative and adversarial process, the most common answer is “the subpoena power.” 

Prosecutors tend to get spoiled.  You’ve got all the tools and advantages any attorney or investigator could ever wish for.  You largely have the power to determine who and when to investigate and charge; you’ve got the FBI and other well-resourced federal agencies at your side; and you have the institutional might and credibility of the United States Department of Justice behind everything you do.

Even within that privileged context, the subpoena power is especially potent.  The typical subpoena is unassuming: usually just a page or two, standard government-looking form, couple fill-in-the-blanks, and a prosecutor’s signature at bottom.  (Technically, criminal subpoenas are issued by a grand jury but, in practice, every prosecutor has a stack of blank subpoenas on his or her desk and can dash them off with a couple pen strokes).

But don’t be lulled by its unassuming form — the subpoena holds almost magical power to make things appear.  Need bank records on a target? Here’s a subpoena, Wells Fargo — hand ‘em over. Looking for a list of every call made to or from a particular cellular number over the past year?  Here’s your subpoena, Verizon, and I’m feeling generous so I’ll give you a week to comply. Want to compel a reluctant witness to testify under oath? Here’s your subpoena, sir — see you in the grand jury tomorrow, or else the U.S. Marshals can come get you. 

Sure, the recipient can contest a subpoena — too broad, irrelevant, calls for privileged information.  But courts are extraordinarily deferential to prosecutors here. Essentially, if the prosecutor can articulate any non-frivolous reason why the information might be relevant to an investigation, courts will enforce a criminal subpoena. 

The criminal subpoena is muscular and self-assured.  But it also has a scrawnier, slightly awkward cousin: the Congressional subpoena.  On its face, the Congressional subpoena looks like a criminal subpoena. But, in practice, the Congressional subpoena gets a second billing.  Courts tend to scrutinize Congressional subpoenas with a more skeptical eye than prosecutorial subpoenas. And there are no armed agents to enforce compliance with Congressional subpoenas.  Yet Congressional subpoenas enable the Senate or House to conduct core oversight of the Executive Branch, exposing scandal and rooting out abuse of the public trust. Without Congressional subpoena power, we likely would not know about (or at least know the full extent of scandals from Watergate to Fast and Furious to President Trump’s recent conduct towards Ukraine, which resulted in his impeachment.

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This is why the District of Columbia Court of Appeals ruling on the Don McGahn case is so important (if it stands).  After issuance of the Mueller report, the House subpoenaed McGahn, former Trump White House counsel and a key witness to his potentially criminal acts of obstruction of justice.  The White House tried to block McGahn,’s testimony, invoking a legally dubious claim of “absolute immunity” — which a federal district court judge promptly annihilated, branding it “a fiction” that gets the concept of constitutional separation of powers “exactly backwards.”

And that’s when the court of appeals stepped in.  Or, more precisely, bailed out.  Because the court of appeals didn’t actually address the substantive issue at hand — whether the White House could defy the subpoena based on ‘absolute immunity.”  Rather, the three-judge panel ruled (by a 2-1 split decision) that the case “asks us to settle a dispute that we have no authority to resolve,” and that the case is “unfit for judicial resolution.”  Essentially: Congress and the White House can slug this one out, and we’ll just stand over here on the sidelines.

In explaining its non-action, the court of appeals rationalized: “The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often.”  Well, boo hoo. The court might actually have to rule on other cases. What a horror. By that rationale, why even bother to unlock the courthouse doors at 9 a.m. every weekday?

By choosing to do nothing, the court of appeals delivered a major victory for the Trump administration and for the presidency in general, whichever party holds the White House.  Why would any Executive Branch agency comply with any Congressional subpoena — when it is so much easier to simply ignore it, secure in the knowledge that the courts will do nothing?

The court of appeals — seemingly understanding that its inaction clears the way for the Executive Branch to casually toss aside any inconvenient Congressional subpoena — notes that Congress holds “a series of [other] political tools to bring the Executive Branch to heel.”  But those tools range from politically precipitous to utterly impracticable. For example, the court of appeals tells us Congress can impeach a president who defies a subpoena.  Sure, but we just went through that process, and public and political appetite for serial impeachments is limited at best. And remember that Trump’s lawyers defended against the obstruction of Congress article of impeachment by arguing that the House first should have gone to court to litigate its subpoenas — while the McGahn decision now says the courts are incapable of ruling.  Heads I win, tails you lose.

The McGahn ruling is not the final word, yet.  The House will petition for review “en banc” (by the entire court of appeals) — which is rarely granted but could be in play here, given the stakes.  The losing party then almost certainly will seek review by the Supreme Court, which requires a vote of four justices to take on any new case.

The fact that McGahn will not testify (for now) is only the sub-plot here.  The bigger story is that the courts, by staying outside the fray, have effectively voided the ability of Congress to get vital information from the Executive Branch.  While subpoenas can be potent tools to discover truth, the McGahn decision has reduced their worth to no more than the paper they’re printed on. 

Stay Informed, 


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