The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, ten Democratic Senators sent letters to Judge Lagoa and Luck of the Eleventh Circuit. The Senators asked the Judges to "explain" their involvement in the Florida felon disenfranchisement cases. (I wrote about the recusal issue here). Explain, or else what? In my post, I wrote that Congress's only remedy against federal judges is impeachment. But on further thought, members of Congress could choose a far less intrusive remedy: a subpoena to testify. For example, could the House or Senate Judiciary Committee issue a subpoena to Judges Lagoa and Luck to testify why they decided not to recuse in this case.
Two years ago, I considered a related question during the Kavanaugh hearing. At the time, Rep. Jerrold Nadler, chair of the House Judiciary Committee, threatened to investigate Brett Kavanaugh if he was confirmed to the Court. He said, "We would have to investigate any credible allegations certainly of perjury and other things that haven't properly been looked into before." Presumably, such an investigation could have included a subpoena to Kavanaugh to testify before Congress. (I tend to start thinking and writing about events long before they happen; that is why I am always so quick to offer commentary when the event actually happens).
At the time, I asked Josh Chafetz, an expert on all things Congress, whether there was any precedent for Congress issuing a subpoena to a Supreme Court Justice. He identified one such instance. Here is an excerpt from pp. 196-197 of Congress's Constitution.
In 1953, the House Un-American Activities Committee subpoenaed Justice Tom Clark to testify about decisions he had made as attorney general. The committee simultaneously subpoenaed former president Truman, which was immediately and widely recognized as a political blunder. Both Truman and Clark refused to testify (on similar grounds of executive and judicial independence from Congress), although Clark announced that he would answer written questions; in the resulting political firestorm, the committee declined to put questions to him or to proceed against either him or Truman.
This subpoena did not concern actions Clark took while on the bench. It instead focused on actions he took as Attorney General. Here, the subpoena was issued, but not enforced. In this clash between the legislative branch and the judicial branch, the judiciary prevailed.
But what would have happened if HUAC asked a federal court to enforce the subpoena? Would it be enforceable? Chafetz wrote that such a subpoena could be enforced:
Is there any reason to think that it would be categorically inappropriate today to bring judges before congressional committees? As this book has emphasized from the outset, judges are political actors, although they of course inhabit political roles different from, say, those of executive-branch officials. These different roles may make it politically dicey for a house of Congress to subpoena them—but this is not categorically different from any other subpoena.
Chafetz makes a textual point. The Speech or Debate Clause provides express protection for members of Congress from being questioned. But there are no express protections for federal judges, or the President:
Judges have no explicit protection from being questioned in Congress—in contrast to members of Congress, who are, as we shall see in the next chapter, privileged against being questioned "in any other Place" for their official activity—so it is only by inducing an overriding, free-standing constitutional principle of judicial independence that one could argue that they are categorically immune from congressional subpoena. But why should we make such an inductive step for judges, especially given the other, explicit independence-protecting measures?
Chafetz wrote this book several years before Trump v. Mazars. I think the Chief Justices's opinion casts some doubt on the validity of congressional subpoenas for federal judges, but this issue is not clear cut.
First, Mazars put a lot of weight on the fact that the Court had never addressed "a congressional subpoena for the President's information." In contrast, the courts had considered the validity of subpoenas issued to the President in federal criminal proceedings (Burr and Nixon) and in a civil suit (Jones). Chief Justice Roberts found this novelty cut against the House's subpoena. The Court found, "congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed." Moreover, there has been a tradition of Congress and the Executive Branch voluntarily working out compromises over document requests.
There is no practice of Congress voluntarily requesting information from federal judges about internal judicial duties. I put aside the judiciary's annual reports about mundane budgetary matters, which is subject to Congress's oversight authority. During those hearings, the Justices routinely refuse to answer any substantive legal questions. As they should. And there is no practice of such subpoenas being issued to force a judge to testify about her official duties. The novelty of a congressional subpoena against a federal judge would cut against its validity.
Second, Roberts considered the separation of powers analysis: one branch was seeking information from another branch.
Here the President's information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees ofCongress that have set forth broad legislative objectives. Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed.1961) (J. Madison); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring).That distinctive aspect necessarily informs our analysis of the question before us.
The Court added that "congressional subpoenas for the President's information unavoidably pit the political branches against one another."
I think the same sort of "rivalry and reciprocity" exists between Congress and the federal courts. Federal judges are different from the President. But the unique nature of judicial independence suggests there are similar separation-of-powers concerns at play. Perhaps that reason explains why the notion of congressional standing has been deemed so controversial. In such cases, Congress asks the court to adjudicate disputes with the executive branch. And the courts usually refuse to get involved.
Third, Mazars declined to adopt the Nixon "demonstrated, specific need" standard for the President's tax returns. The President's financial records are not like the privileged tapes at issue in the Watergate case. The Court stated, "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."
It is generally understood that judicial deliberations are confidential. I don't think the phrase "privilege" is the correct descriptor, but the nature of internal proceedings come close to "privileged." Judges, and their staff, generally pledge to keep matters internal. When internal judicial deliberations leak, it is often scandalous–especially at the Supreme Court. I think internal judicial deliberations are closer to privileged, executive-branch documents, then they would be to the President's financial records. Therefore, a subpoena to a federal judge for internal discussions would have to meet some heightened standard–perhaps Nixon's "demonstrated, specific need" standard
Fourth, Mazars recognized that Congress has a power to request documents and testimony "in order to legislate." Subpoenas must serve a "valid legislative purpose." The Court added that Congress has an "important interests in conducting inquiries to obtain the information it needs to legislate effectively." What does it mean to "legislative effectively" with respect to federal courts?
I think the category of laws Congress could enact with respect to the courts is far narrower than the category of laws Congress can enact with respect to the executive branch. Congress can enact general ethics legislation. Congress can establish new federal courts and judicial positions. (I'll table for now whether Congress can eliminate federal courts and judicial positions). Congress can create new grounds for federal jurisdiction. (I'll table for now the validity of jurisdiction stripping). In certain cases, Congress can establish specific rules of decision. For example, AEDPA only permits certain habeas relief if a lower-court decision violates "clearly established Federal law, as determined by the Supreme Court of the United States." I think these sorts of legislation are all permissible.
But what about a subpoena to an individual federal judge to explain her decision in a specific case? Would this subpoena be appropriate to pursue any of these legislative ends? Or would such a request pursue a different, impermissible purpose? Specifically, would the subpoena in fact serve as a means to intimidate life-tenured federal judges? Chief Justice Roberts alluded to such impermissible purposes in Mazars. He wrote, "burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage." Congress should not be able to maintain an "institutional advantage" over the independent judiciary through the use of pretextual subpoenas.
Fifth, Congress retains the power to impeach federal judges. And as part of the impeachment process, I think the House would have a far greater interest to subpoena a judge. Consider an example where the House suspects a federal judge took a bribe in exchange for a favorable ruling. The House could request financial documents from the judge, as well as internal documents about that ruling. As a practical matter, the Department of Justice would likely investigate, and prosecute such corruption. But the House retains its own authority to request the documents, even in the absence of a federal prosecution.
What if the House chooses to impeach a judge because the House does not like a particular decision he rendered? (Think of the impeachment of Justice Samuel Chase.) Could the House subpoena the judge's private records of the case? Maybe request draft opinions? Would these requests be valid? A more difficult question.
In any event, these sorts of requests would be pursuing a specific purpose: impeachment. I do not think an interest in crafting general ethics legislation would support a subpoena for internal judicial deliberations.
Sixth, in some cases, it may not be necessary for Congress to subpoena a judge. For example, if a judge issues a published opinion explaining why she chose not to recuse, then that information should address the House's concern. Mazars recognized that "Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective." I think a published opinion could provide the requested information by other means. Congress may disagree with the reasoning in the opinion, or find it unpersuasive. But the opinion can speak for itself, without the need for compelled testimony.
I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.
One final issue. I do not think lower, federal court judges would stand in a different position than Supreme Court Justices. True enough, the Constitution recognized the establishment of the Supreme Court. But the Constitution did not establish the members of the Court; those positions were created by statute. If Congress can issue a subpoena to a lower-court judge, I think a subpoena could also be issued to a member of the Supreme Court. What about the Chief Justice, you may ask? Stay tuned for my new paper with Seth Barrett Tillman.