A divided federal appeals court panel dealt a severe blow to the U.S. House of Representatives’ investigative power Monday, ruling that the House can’t go to court to enforce subpoenas because there is no statute giving that chamber the authority to do so.
The 2-1 ruling marked the second time a D.C. Circuit Court of Appeals panel essentially voided a subpoena the House issued last year to Donald McGahn demanding the former White House counsel testify about his dealings with President Donald Trump related to the investigation into alleged ties between the Trump campaign and Russia.
If the decision stands, it could cripple the House’s ability to demand information from sources unwilling to give it up readily. That would upend decades of congressional oversight and investigations and could snuff out several legal fights pending in Washington over House subpoenas, including one involving Trump’s financial records and another involving a demand for records about the administration’s effort to add a citizenship question to the 2020 census.
The panel majority said Congress is free to pass a law making House subpoenas enforceable, but the courts can’t create a legal mechanism to mandate compliance in the meantime. The House is likely to ask the full bench of the appeals court to take up the question.
“This decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” Judge Thomas Griffith wrote in a nine-page opinion joined by Judge Karen Henderson.
House Speaker Nancy Pelosi quickly vowed to appeal the ruling, seeking a rehearing by the full bench of the appeals court. "The ruling represents a flawed judicial attack on the entire House of Representatives; in the past, both Republicans and Democrats have successfully sought to enforce House subpoenas in court," Pelosi said in a statement.
Several House committee chairs, including Reps. Adam Schiff, Jerrold Nadler and Carolyn Maloney, described the ruling as "clearly in error" and said the ruling would destroy a critical check on the Executive Branch if allowed to stand.
The House will have some legal support for its position from a dissent filed by Judge Judith Rogers, who said Congress’ power to enforce subpoenas is implied in the Constitution and was reinforced by the recent Supreme Court ruling in the House’s quest for Donald Trump’s financial documents.
"The power that the Committee seeks to exercise in the present lawsuit flows from the Constitution,” Rogers wrote.
In February, the same appeals court panel split along the same lines , with the Republican-appointed judges holding that the Constitution obligates the courts to bow out of any attempt by the House to enforce a subpoena for executive branch information and the Democratic-appointed judge rejecting that position.
Three weeks ago, a broader set of D.C. Circuit judges voted, 7-2, to effectively overturn that decision. The court’s majority said such fights are “justiciable” in the judicial system , but they left open several other potential obstacles to enforcement, including the issue the smaller panel used to toss out the subpoena dispute again on Monday.
The decision is likely to spark a renewed debate over the House’s power of “inherent contempt” — its long-dormant ability to fine or jail witnesses who refuse to comply with its oversight requests. Though courts have acknowledged this power exists, it has been in disuse since World War II. The House has emphasized that resorting to such heavy-handed tactics would only worsen government dysfunction. Court proceedings are far more desirable — to the House and to society — House counsel Doug Letter has argued during the House’s legal battles.
The new ruling appears to leave in place one other option for enforcing House subpoenas: the threat of criminal prosecution for contempt of Congress. However that option does not seem viable in cases involving fights over demands for testimony or records from the executive branch, since the Justice Department has long taken the position that it will not prosecute in cases where an official or ex-official was complying with a presidential assertion of executive privilege.