The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The House Judiciary Committee issued a subpoena to former White House Counsel Don McGahn. McGahn, and the Department of Justice, asserted absolute immunity from the subpoena. The District Court rejected the claim of absolute immunity and DOJ appealed. After the House voted on the impeachment resolutions, a panel of the D.C. Circuit requested supplemental briefing "addressing the effect of the articles of impeachment on the issues in this case, including whether the articles of impeachment render this case moot and whether expedited consideration remains necessary."
DOJ has now filed that supplemental brief.
First, DOJ contends that the case is not moot. The subpoena was premised on the House's oversight and legislative powers, apart from its impeachment powers. More importantly, DOJ contends that the Court no longer needs to decide if "the subpoena was ever validly justified by the House's impeachment power in the first place." I suspect this argument is a preview of arguments the President would make to the Supreme Court if other impeachment-related cases arrive.
Second, DOJ explains that the impeachment vote does have one immediate implication: the proceedings should slow down. In short, the House has already voted on its articles of impeachment. Therefore, expedited consideration of this subpoena is no longer necessary. DOJ strongly suggests that the House's impeachment investigation is over. Is this argument correct? To be sure, the House only approved two articles. It will likely contend that its impeachment inquiry of other matters–such as Mueller and obstruction of justice–remain ongoing. This fact may have supported Leadership's decision to not bring articles directly premised on the Mueller Report and obstruction of justice–doing so could have potentially mooted pending litigation.
Third, DOJ argues that the Committee's "primary justification to sue no longer exists." That is, the need to facilitate the impeachment inquiry process. Again, the House will likely contend that the impeachment inquiry into Mueller and obstruction continues, without regard to the two approved Articles.
Fourth, DOJ contends that obstruction of congress article does implicate the district court's opinion, which was premised on obstruction of justice.
Second, the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case. The House Judiciary Committee's impeachment report, for example, cites the district court's characterization of the Justice Department's litigating position in this case for the proposition that the President "insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses." H.R. Rep. No. 116-__, Impeachment of Donald J. Trump, President of the United States: Report of the Committee on the Judiciary 165 (2019). Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is "far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement." Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is to "embroil the federal courts in a power contest nearly at the height of its political tension." Id
One of the risks of incorporating the judicial decisions into the article is that the courts may now avoid getting further entangled. This argument will resonate well with the Supreme Court:
Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993). The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has "traditionally thought to be capable of resolution through the judicial process." Raines, 521 U.S. at 819. This Court should decline the Committee's request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction.
This argument creates potential recusal issues for Chief Justice Roberts. He will likely have to preside over these issues during the impeachment trial. Could he then hear this appeal from the D.C. Circuit? Or what about in reverse? What would happen first? The impeachment trial? Or an emergency appeal to the Supreme Court? Or might they happen at the same time.
DOJ filed a separate brief on Thursday, that closed with an ominous footnote:
The Committee has requested (Br. 53) that this Court should "vacate its administrative stay and affirm the district court's order without delay." Although the judgment instead should be reversed and the case dismissed, if the Court were to disagree, it should at least leave the stay in place for a reasonable period to allow the Solicitor General to seek appropriate relief from the Supreme Court, especially given the serious question whether McGahn's testimony is even relevant to the now-passed articles of impeachment.
In other words, if the D.C. Circuit agrees with the District Court, then the Solicitor General has asked for a "reasonable period" of time to file an immediate appeal to the Supreme Court. The D.C. Circuit will hear oral argument on January 3. I imagine a decision would be rendered shortly thereafter. Perhaps, at that juncture, the impeachment trial will have started. Or perhaps not.
Maybe the House follows the Tribe proposal, and refuses to transmit the articles, altogether. To resolve the mootness inquiry, the Court may have to decide if the President has in fact been impeached.
Update: The House has also filed its supplemental brief. The House contends that the controversy is not moot: newly uncovered information could lead to additional articles of impeachment:
The Committee thus continues to have an urgent need for McGahn's testimony to further support the misconduct described in the second Article. For example, if McGahn confirms to the Committee that the President ordered him to fire Special Counsel Mueller—an event that President Trump has publicly disputed— and then tried to cover it up, that testimony would constitute powerful evidence of the pattern of obstructive behavior described in the second Article. See id. at 167 ("There, President Trump used the powers of his office to obstruct and seek to fire the Special Counsel; here, President Trump used the powers of his office to obstruct and embargo the House impeachment inquiry."). The Committee—and the House— thus have a continued interest in ensuring that the Senate has before it any relevant information from McGahn's testimony in deciding whether to remove President Trump from office.
McGahn's testimony also remains central to the Committee's ongoing inquiry into the President's obstructive conduct. If McGahn's testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly—including, if necessary, by considering whether to recommend new articles of impeachment. The Committee's interest in obtaining McGahn's testimony pursuant to its ongoing impeachment investigations plainly suffices to preserve a live case or controversy.
We may yet enter a state of perpetual impeachment inquiries.