United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 3, 2020 Decided February 28, 2020

No. 19-5331

COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE 

OF REPRESENTATIVES,

APPELLEE

v.

DONALD F. MCGAHN, II,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02379)

Hashim M. Mooppan, Deputy Assistant Attorney General, 

U.S. Department of Justice, argued the cause for appellant. 

With him on the briefs were Mark R. Freeman, Michael S. 

Raab, and Martin Totaro, Attorneys.

Megan Barbero, Associate General Counsel, U.S. House 

of Representatives, argued the cause for appellee. With her on 

the briefs were Douglas N. Letter, General Counsel, Todd B. 

Tatelman, Deputy General Counsel, Josephine Morse, 

Associate General Counsel, Adam A. Grogg and William E. 

Havemann, Assistant General Counsel, Jonathan B. Schwartz, 

Attorney, and Annie L. Owens.
2

Steven A. Hirsch, Justin Florence, Jamila G. Benkato, and 

Cameron O. Kistler were on the brief for amici curiae 

Republican Legal Experts, et al. in support of plaintiffappellee.

Before: HENDERSON, ROGERS, and GRIFFITH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge ROGERS.

GRIFFITH, Circuit Judge: The Committee on the Judiciary 

of the House of Representatives ordered the former White 

House Counsel, Donald F. McGahn, II, to testify before the 

Committee. President Donald Trump instructed McGahn to 

refuse, asserting that certain presidential advisers possess 

“absolute testimonial immunity” from compelled 

congressional process. The Committee now seeks to invoke 

this court’s jurisdiction to enforce its subpoena. The 

Department of Justice (DOJ), on behalf of McGahn, responds

that Article III of the Constitution forbids federal courts from 

resolving this kind of interbranch information dispute. We 

agree and dismiss this case.

I

A

In May 2017, the Deputy Attorney General appointed 

Special Counsel Robert Mueller to investigate whether

President Trump’s campaign coordinated with the Russian 

government during the 2016 presidential election. See ROBERT 
3

S. MUELLER, III, REPORT ON THE INVESTIGATION INTO RUSSIAN 

INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION, vol. I, at 

1-2 (2019). This investigation’s scope soon expanded when the 

President took several actions that “raised questions about 

whether he had obstructed justice.” Id. vol. II, at 1. As part of 

his investigation, the Special Counsel interviewed McGahn, 

who was then the White House Counsel. McGahn witnessed 

several of the President’s efforts to thwart the Special 

Counsel’s investigation, including the President’s aborted 

attempt to fire the Special Counsel. Id. vol. II, at 77-90, 113-20; 

see also Committee Br. 6 n.3.

On March 4, 2019, pursuing leads developed by the 

Special Counsel, the Committee began an investigation into the 

President’s possible “obstruction of justice, public corruption, 

and other abuses of power.” J.A. 542. The Committee sent a 

letter asking McGahn to turn over certain White House 

documents relating to the President’s possible obstruction, but 

McGahn did not comply. On April 22, the Committee issued a 

duly authorized subpoena ordering McGahn to produce these

documents and to testify before the Committee on May 21.

On May 20, McGahn’s successor as White House 

Counsel, Pat A. Cipollone, informed the Committee that the

President had “directed Mr. McGahn not to appear at the 

Committee’s scheduled hearing.” J.A. 304. Cipollone wrote 

that the DOJ’s Office of Legal Counsel (OLC) advised him that 

certain presidential aides, including McGahn, are “absolutely 

immune from compelled congressional testimony with respect 

to matters occurring during [their] service . . . to the President.”

J.A. 303. Cipollone enclosed the memorandum from OLC 

setting forth this theory of absolute testimonial immunity. See 

Testimonial Immunity Before Congress of the Former Counsel 

to the President, 43 Op. O.L.C. (May 20, 2019).
4

McGahn’s private attorney likewise informed the 

Committee that McGahn would not testify, though he would

agree to comply with any “accommodation” reached by the 

Committee and the White House. J.A. 631-32. The Committee 

and the White House later reached such an accommodation 

regarding the subpoenaed documents, but they could not agree 

to terms for McGahn’s testimony.

B

On August 7, the Committee sued McGahn in the District 

Court for the District of Columbia, claiming that McGahn 

“enjoys no absolute immunity from appearing before the 

Judiciary Committee.” Compl. ¶ 111, J.A. 63. The Committee 

alleged that McGahn’s refusal to testify frustrated its efforts to 

“determin[e] whether to approve articles of impeachment”

against the President, “assess the need for remedial 

legislation,” and “conduct oversight of DOJ.” Id. ¶ 10, J.A. 17. 

The Committee asked the court to declare that McGahn’s 

refusal to appear at all was “without legal justification,” and to 

enjoin McGahn “to appear and testify forthwith.” Id. at 53, J.A. 

64. 

The parties filed cross-motions for summary judgment. 

The district court granted the Committee’s motion and denied 

McGahn’s. Mem. Op. at 118, J.A. 966.

The district court first rejected DOJ’s threshold arguments, 

concluding that (1) the court had subject-matter jurisdiction 

under 28 U.S.C. § 1331, id. at 41-45, J.A. 889-93; (2) the 

dispute was justiciable because it raised “garden-variety legal 

questions that the federal courts address routinely and are wellequipped to handle,” id. at 47-48, J.A. 895-96; (3) the 

Committee had Article III standing because it “alleged an 

actual and concrete injury to its right to compel information,”
5

id. at 75, J.A. 923; and (4) the Committee possessed an implied 

cause of action under Article I of the Constitution, id. at 77-81, 

J.A. 925-29.

On the merits, the district court rejected DOJ’s assertion 

of absolute testimonial immunity and ordered McGahn to 

appear before the Committee. Id. at 89-118, J.A. 937-66. The 

court concluded that presidential aides “who have been 

subpoenaed for testimony by an authorized committee of 

Congress must appear.” Id. at 116, J.A. 964. Only then may an

aide assert “any legally applicable privilege in response to the 

questions asked of them.” Id. McGahn timely appealed.

C

The House of Representatives has since passed two 

articles of impeachment against the President. H.R. Res. 755, 

116th Cong. (2019). The first article charges the President with 

“abuse of power”; the second with “obstruction of Congress.” 

Although the second article does not mention McGahn 

expressly, it alleges that the President unlawfully directed 

officials “not to comply with” congressional subpoenas and 

asserts that these directives “were consistent with President 

Trump’s previous efforts to undermine United States 

Government investigations into foreign interference in United 

States elections.” Id. at 6-8. The Senate voted to acquit the 

President on February 5. See 166 CONG. REC. S936-39 (daily 

ed. February 5, 2020).

The Committee also issued a report detailing the 

President’s alleged wrongdoing, see H.R. REP. NO. 116-346

(2019), that explains the Committee’s continued interest in 

McGahn’s testimony. Specifically, the Committee explained

that it intended to use McGahn’s testimony “in a Senate trial 

on these articles of impeachment” and to continue investigating 
6

“President Trump’s obstruction of the Special Counsel.” Id. at 

159 n.928; see also Committee Suppl. Br. 5-8. If the 

Committee obtains McGahn’s testimony, it may “consider[] 

whether to recommend new articles of impeachment.” Id. at 7.

The Committee also claims that it needs McGahn’s testimony 

“for pressing legislative and oversight purposes,” including the 

consideration of certain legislation. Id. at 8-9.

II

When a litigant asks a federal court to resolve a dispute, 

the Constitution requires that court first to decide whether the 

matter is a “Case” or “Controversy” within the meaning of 

Article III. This limitation is essential to the democratic 

structure of the Constitution enacted by “We the People” in 

1789. U.S. CONST. pmbl. Compared to Congress and the 

President, unelected and unaccountable federal judges sit at the 

furthest remove from the citizenry. To the Framers, “[n]o 

liberty was more central than the people’s liberty to govern 

themselves under rules of their own choice.” AKHIL REED 

AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 10 (2005).

And those rules must be made by the people’s politically 

accountable representatives, not by life-tenured judges. Article 

III comes third for a reason; if Congress is “first among 

equals,” the judiciary is last. Id. at 208.

To protect the elected branches from undue interference, 

Article III carefully circumscribes the jurisdiction of the courts. 

See Antonin Scalia, The Doctrine of Standing as an Essential 

Element of the Separation of Powers, 17 SUFFOLK U. L. REV.

881, 881 (1983) (Article III prevents the “overjudicialization 

of the processes of self-governance”). If federal courts had 

power to answer “every question under the constitution,” they 

could reach “almost every subject proper for legislative 

discussion and decision.” DaimlerChrysler Corp. v. Cuno, 547 
7

U.S. 332, 341 (2006) (quoting 4 PAPERS OF JOHN MARSHALL

95 (C. Cullen ed. 1984) (emphasis omitted)). The separation of 

powers “could exist no longer, and the other departments 

would be swallowed up by the judiciary.” Id. Our government 

would become one not of laws, but of lawyers.

Of course, judicial exposition of the Constitution’s 

meaning is an “indispensable feature of our constitutional 

system,” Cooper v. Aaron, 358 U.S. 1, 18 (1958), but Article 

III grants federal courts “‘Power’ to resolve not questions and 

issues but ‘Cases’ or ‘Controversies,’” Ariz. Christian Sch. 

Tuition Org. v. Winn, 563 U.S. 125, 132 (2011) (quoting U.S.

CONST. art. III). We may not disregard this limitation simply to 

“settle” a dispute “for the sake of convenience and efficiency.” 

Raines v. Byrd, 521 U.S. 811, 820 (1997).

“Standing to sue is a doctrine rooted in the traditional 

understanding of a case or controversy.” Spokeo, Inc. v. Robins, 

136 S. Ct. 1540, 1547 (2016). Given the separation-of-powers 

principles animating Article III,standing analysis is “especially 

rigorous” when we are asked to decide whether the action of 

“one of the other two branches of the Federal Government was 

unconstitutional.” Raines, 521 U.S. at 819-20. Accordingly, we

must ask whether adjudicating the dispute is “consistent with a 

system of separated powers” and whether the claim is 

“traditionally thought to be capable of resolution through the 

judicial process.” Allen v. Wright, 468 U.S. 737, 752 (1984) 

(internal quotation marks omitted); see also Rucho v. Common 

Cause, 139 S. Ct. 2484, 2494 (2019); Raines, 521 U.S. at 818-

20; Flast v. Cohen, 392 U.S. 83, 97 (1968). This interbranch 

quarrel satisfies neither condition. See Part II.A (separation-ofpowers principles); Part II.B (history). And even Congress—

from the statutes it has passed—seems to agree that suits like 

this one do not belong in federal court. See Part II.C.
8

A

1

The Committee’s suit asks us to settle a dispute that we 

have no authority to resolve. The Constitution does not vest 

federal courts with some “amorphous general supervision of 

the operations of government.” Raines, 521 U.S. at 829 

(internal quotation marks omitted); Youngstown Sheet & Tube 

Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., 

concurring) (“The Framers, however, did not make the 

judiciary the overseer of our government.”). Instead, as Chief 

Justice Marshall explained, federal courts sit “to decide on the

rights of individuals.” Marbury v. Madison, 5 U.S. (1 Cranch) 

137, 170 (1803) (emphasis added). To that end, we lack 

authority to resolve disputes between the Legislative and 

Executive Branches until their actions harm an entity “beyond 

the [Federal] Government.” Raines, 521 U.S. at 834 (Souter, J., 

concurring in the judgment). Without such a harm, any dispute

remains an intramural disagreement about the “operations of 

government” that we lack power to resolve.

In this case, the Committee’s dispute with the Executive 

Branch is unfit for judicial resolution because it has no bearing 

on the “rights of individuals” or some entity beyond the federal 

government. Marbury, 5 U.S. at 170. The Committee is not a 

private entity seeking vindication of its “constitutional rights 

and liberties . . . against oppressive or discriminatory 

government action.” Raines, 521 U.S. at 829 (internal 

quotation marks omitted). Nor does the Committee seek the 

“production or nonproduction of specified evidence . . . in a 

pending criminal case”—the “kind of controversy” threatening 

individual liberty that “courts traditionally resolve.” United 

States v. Nixon, 418 U.S. 683, 696-97 (1974).
9

Instead, the Committee claims that the Executive Branch’s 

assertion of a constitutional privilege is “obstructing the

Committee’s investigation.” Committee Br. 15. That

obstruction may seriously and even unlawfully hinder the 

Committee’s efforts to probe presidential wrongdoing, but it is 

not a “judicially cognizable” injury. Raines, 521 U.S. at 819; 

Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009)

(“[T]he traditional role of Anglo-American courts . . . is to 

redress or prevent actual or imminently threatened injury to 

persons caused by private or official violation of law.”); 

Raines, 521 U.S. at 833 (Souter, J., concurring in the judgment) 

(“[A] dispute involving only officials . . . who serve in the 

branches of the National Government lies far from . . . the 

conceptual core of the case-or-controversy requirement.”). If 

the law were otherwise, then the branches’ mere assertions of 

institutional harms would compel us to resolve generalized 

disputes about the “operations of government.” Id. at 829 

(majority opinion) (internal quotation marks omitted). But as 

the Supreme Court has repeatedly made clear, the Constitution 

denies us that role.

2

The Constitution imposes limitations on the “judicial 

Power” for good reason. Interbranch disputes are deeply 

political and often quite partisan. Compare, e.g., Comm. on 

Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 

(D.D.C. 2013), with Sandra Hernandez, Partisan Politics 

Plague Probe of “Fast and Furious,” L.A. TIMES (Mar. 29, 

2012). By restricting the role of the judiciary, Article III 

preserves the “public confidence” in the federal courts by 

preventing “[r]epeated and essentially head-on confrontations 

between the life-tenured branch and the representative 

branches of government.” Valley Forge Christian Coll. v. Ams. 

United for Separation of Church & State, Inc., 454 U.S. 464, 
10

474 (1982) (internal quotation marks omitted). If we throw 

ourselves into “a power contest nearly at the height of its 

political tension,” Raines, 521 U.S. at 833 (Souter, J., 

concurring in the judgment), we risk seeming less like neutral 

magistrates and more like pawns on politicians’ chess boards.

In this case, the dangers of judicial involvement are 

particularly stark. Few cases could so concretely present a 

direct clash between the political branches. The Committee 

opened an investigation into possible presidential wrongdoing, 

which culminated in articles of impeachment against the 

President. The Committee claims that, in furtherance of this 

investigation, McGahn must testify about events that occurred 

during his tenure as White House Counsel. Meanwhile, the 

President denies all wrongdoing, and he has instructed 

McGahn not to testify.

The branches are thus locked in a bitter political 

showdown that raises a contentious constitutional issue: The 

Committee claims an absolute right to McGahn’s testimony,

and the President claims an absolute right to refuse it. We 

cannot decide this case without declaring the actions of one or 

the other unconstitutional, and “occasions for constitutional 

confrontation . . . should be avoided whenever possible.” 

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 389-90 

(2004) (internal quotation marks and alterations omitted). 

Indeed, the House cited the Executive Branch’s litigating 

position in this very case in support of its “obstruction of 

Congress” article of impeachment. See H.R. REP. NO. 116-346,

at 155 & n.906. In turn, the White House Counsel cited the 

Committee’s litigating position in the President’s defense. See 

Trial Memorandum of President Donald J. Trump, In 

Proceedings Before the United States Senate 49, 53 (Jan. 20, 

2020).
11

Judicial entanglement in the branches’ political affairs

would not end here. If the Committee can enforce this 

subpoena in the courts, chambers of Congress (and their duly 

authorized committees) can enforce any subpoena. Though 

momentous, the legal issue in this case is quite narrow: whether 

the President may assert absolute testimonial immunity on 

behalf of McGahn. But future disagreements may be 

complicated and fact-intensive, and they will invariably put us 

in the “awkward position of evaluating the Executive’s claims 

of confidentiality and autonomy,” Cheney, 524 U.S. at 389, 

against Congress’s need for information, e.g., Trump v. Mazars 

USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), cert. granted, 140 

S. Ct. 660 (2019).

In such disputes, we would have few authorities to guide 

us—sparse constitutional text, no statute, a handful of out-ofcontext cases, and a set of more-or-less ambiguous historical 

sources. Cf. Youngstown, 343 U.S. at 634 (Jackson, J., 

concurring) (“A judge . . . may be surprised at the poverty of 

really useful and unambiguous authority applicable to concrete 

problems of executive power.”). We would be forced to 

supervise the branches, scrutinize their asserted constitutional 

interests, and elaborate a common law of congressional

investigations. Article III confines us to the “proper—and 

properly limited—role of the courts in a democratic society,” 

Summers, 555 U.S. at 492-93 (internal quotation marks 

omitted), and that constraint precludes us from becoming an 

ombudsman for interbranch information disputes.

We needn’t speculate. Just one day after the district court 

issued its order in this case, the House Committee on Oversight 

and Reform sued to enforce congressional subpoenas against 

the Attorney General and the Secretary of Commerce. See 

Complaint, Comm. on Oversight & Reform v. Barr, No. 19-cv3557 (D.D.C. Nov. 26, 2019), Dkt. No. 1. The Oversight 
12

Committee seeks documents related to yet another politically 

charged dispute: the administration’s decision to add a 

citizenship question to the census. See id. at 83-84; Catie 

Edmondson, House Committee Sues Barr and Ross Over 2020 

Census Documents, N.Y. TIMES (Nov. 26, 2019).

Or simply consider this case. If we order McGahn to 

testify, what happens next? McGahn, compelled to appear, 

asserts executive privilege in response to the Committee’s 

questions. The Committee finds those assertions baseless. In 

that case, the Committee assures us, it would come right back 

to court to make McGahn talk. See Oral Arg. Tr. 60:25-61:1.

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.

3

Extending our jurisdiction beyond the constitutional 

boundary would also displace the long-established process by 

which the political branches resolve information disputes. The 

Constitution “contemplates that practice will integrate the 

dispersed powers into a workable government,” Youngstown, 

343 U.S. at 635 (Jackson, J., concurring), and the political 

branches have long resolved most of their differences through

“negotiation and accommodation,” Josh Chafetz, Executive 

Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1132 

(2009); see also Neal Devins, Congressional-Executive 

Information Access Disputes: A Modest Proposal—Do 

Nothing, 49 ADMIN. L. REV. 109 (1996); Irving Younger, 

Congressional Investigations and Executive Secrecy: A Study 

in the Separation of Powers, 20 U. PITT. L. REV. 755 (1959). 

Sometimes negotiations fail, see History of Refusals by 

Executive Branch Officials to Provide Information Demanded 

by Congress, 6 Op. O.L.C. 751 (1982), but for almost two 
13

centuries, neither branch thought to “submit[] their disputes to 

the courts,” Chafetz, supra, at 1146-47.

The absence of a judicial remedy doesn’t render Congress

powerless. Instead, the Constitution gives Congress a series of 

political tools to bring the Executive Branch to heel. See

Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (opinion of 

Rehnquist, J.) (noting that the “coequal branches of our 

Government” have “resources available to protect and assert 

[their] interests”). Congress (or one of its chambers) may hold 

officers in contempt, withhold appropriations, refuse to 

confirm the President’s nominees, harness public opinion,

delay or derail the President’s legislative agenda, or impeach 

recalcitrant officers. See Chafetz, supra, at 1152-53; see also 

H.R. Res. 755, 116th Cong., at 6 (2019) (impeaching President 

Trump for “obstruction of Congress”). And Congress can wield 

these political weapons without dragging judges into the fray.

Adjudicating these disputes would displace this flexible 

system of negotiation, accommodation, and (sometimes) 

political retaliation with a zero-sum game decided by judicial 

diktat. The Constitution enjoins the branches to conduct their 

business with “autonomy but reciprocity.” Youngstown, 343 

U.S. at 635 (Jackson, J., concurring). But why compromise 

when the federal courts offer the tantalizing possibility of total 

victory? And why would the Executive Branch negotiate if it

can force litigation and “delay compliance for years”? Chafetz, 

supra, at 1154. Letting political fights play out in the political 

branches might seem messy or impractical, but democracy can 

be a messy business, and federal courts are ill-equipped to

micromanage sprawling and evolving interbranch information 

disputes. Cf. Youngstown, 343 U.S. at 635 (Jackson, J., 

concurring) (“The actual art of governing under our 

Constitution does not and cannot conform to judicial 
14

definitions of the power of any of its branches.”). Perhaps that’s 

why these lawsuits were unheard-of for almost two centuries.

To be sure, as the Committee notes, courts in this circuit

have agreed to resolve a handful of interbranch information 

disputes beginning in the 1970s. See Committee Br. 17-20; 

United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) 

(“AT&T I”); Senate Select Comm. on Presidential Campaign 

Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (“Senate 

Select Comm.”); Holder, 979 F. Supp. 2d at 1; Comm. on the 

Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). But as 

we explain below, the legal basis for that practice is dubious, 

see infra Part III.C; Chafetz, supra, at 1154 (“The courts have 

never offered a persuasive reason why a congressional 

subpoena to an executive branch official is a matter of which 

the judiciary can properly take notice.”), and the innovations of 

the 1970s shouldn’t displace the established practice of the

1790s.

B

Speaking of history: Past practice leads to the same 

conclusion as these separation-of-powers principles. The 

Supreme Court has said—time and again—that an Article III 

case or controversy must be one that is “traditionally thought 

to be capable of resolution through the judicial process.” Allen, 

468 U.S. at 752 (internal quotation marks omitted); see also 

Rucho, 139 S. Ct. at 2494; Summers, 555 U.S. at 492; Raines, 

521 U.S. at 819; Nixon, 418 U.S. at 696; Flast, 392 U.S. at 97;

Youngstown, 343 U.S. at 594 (Frankfurter, J., concurring) 

(“Judicial power can be exercised only as to matters that were

the traditional concern of the courts at Westminster.”). In this 

case, the history cuts decisively against the Committee. Neither 

interbranch disputes (in general) nor interbranch information 
15

disputes (in particular) have traditionally been resolved by

federal courts.

1

Begin with interbranch disputes in general. In Raines v. 

Byrd, six Members of Congress sued to challenge the 

constitutionality of the Line Item Veto Act, which authorized 

the President to “cancel” spending provisions in appropriations 

statutes. 521 U.S. at 814-15. The Supreme Court concluded 

that the “individual members of Congress” lacked standing, 

attaching “some importance to the fact that [the congressmen] 

ha[d] not been authorized to represent their respective Houses 

of Congress.” Id. at 829-30. But of special significance here, 

the Court noted that the Members’ attempt to litigate against 

the Executive Branch was “contrary to historical experience.” 

Id. at 829.

That historical conclusion is critical. In “analogous 

confrontations between one or both Houses of Congress and 

the Executive Branch,” the Court reasoned, “no suit was 

brought on the basis of claimed injury to official authority or 

power.” Id. at 826. But if, as the Members argued, the 

Constitution countenanced suits based on “diminution of . . . 

official power,” then President Andrew Johnson could have 

challenged the Tenure of Office Act, which prevented him 

from removing Senate-confirmed officers “without the consent 

of the Senate.” Id. at 826-27. Or a President could have 

challenged the for-cause removal provision for the Post Office 

Department (enacted in 1872) long before the Supreme Court 

adjudicated its constitutionality in Myers v. United States, 272 

U.S. 52 (1926). See Raines, 521 U.S. at 827-28.

But the branches never brought these kinds of suits. 

Instead, the Supreme Court only ever resolved these 
16

interbranch skirmishes after one branch’s allegedly 

unconstitutional actions harmed the concrete interests of 

private actors. See Raines, 521 U.S. at 826-28. In INS v. 

Chadha, for instance, the Supreme Court found that Chadha, 

an immigrant, had standing to challenge the one-House 

legislative veto because success on the merits would entitle him 

to “cancell[ation]” of a “deportation order against [him].” 462 

U.S. 919, 936 (1983); see also Buckley v. Valeo, 424 U.S. 1, 12 

n.10 (1976) (challenge to the Federal Election Campaign Act

by parties raising separation-of-powers problems with “an 

agency designated to adjudicate their rights” and by 

organizations asserting unlawful “compelled disclosure” “on 

behalf of [their] members”); The Pocket Veto Case, 279 U.S. 

655, 673 (1929) (challenge to President Coolidge’s pocket veto

by “Indian tribes” that “filed a petition in the Court of Claims 

setting up certain claims in accordance with the terms of the 

bill”).

Since Raines, the Supreme Court has adjudicated other 

major separation-of-powers cases, but not one of them arose 

out of a pure interbranch dispute. E.g., Zivotofsky v. Kerry, 576 

U.S. 1 (2015); NLRB v. Noel Canning, 573 U.S. 513 (2014); 

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 

U.S. 477 (2010). Instead, every single one of these decisions 

implicated the concrete rights of private actors. Raines

reasoned that the abject absence of interbranch lawsuits meant 

that adjudicating one would be “contrary to historical 

experience,” 521 U.S. at 829, and history hasn’t changed since.

2

Lawsuits to resolve interbranch information disputes, 

likewise, have few historical antecedents. The Committee’s 

first example of a suit by a chamber of Congress to enforce a 

subpoena against the Executive Branch comes from 1974. See 
17

Senate Select Comm., 498 F.2d at 725. And the Committee’s

earliest case is its only appellate precedent for such a suit. See 

also TODD GARVEY, CONG. RESEARCH SERV., R45983,

CONGRESSIONAL ACCESS TO INFORMATION IN AN 

IMPEACHMENT INVESTIGATION 21 (2019) (“[N]either Congress 

nor the President appears to have turned to the courts to resolve 

an investigative dispute until the 1970s.”); Chafetz, supra, at 

1083-84 (similar).

But interbranch information disputes long predate Senate 

Select Committee. For instance, in 1794, President Washington 

withheld papers that “in [his] judgment, for public 

considerations, ought not to be communicated.” History of 

Refusals by Executive Branch Officials to Provide Information 

Demanded by Congress, 6 Op. O.L.C. 751, 752-53 (1982)

(internal quotation marks omitted). Likewise, many other 

Presidents refused to give information to one of the chambers 

of Congress. E.g., id. at 751-81 (listing refusals of Presidents 

Adams, Jefferson, Monroe, Lincoln, Theodore Roosevelt, 

Franklin Roosevelt, Truman, Carter, and Reagan, among 

others). And yet, as the Committee concedes, none of these 

refusals resulted in a “suit[] to enforce subpoenas before the 

mid-1970s.” Committee Br. 26.

That concession seriously undermines the Committee’s 

case. In Raines, the Court knew that our circuit allowed

legislators to bring lawsuits alleging “injury to their 

institutional power as legislators,” 521 U.S. at 820 n.4; see also 

infra Part III.C, but the Court still concluded that such litigation

was “contrary to historical experience,” id at 829. So too here, 

a single appellate precedent from 1974 cannot establish 

historical bona fides for the Committee’s suit.

Indeed, in every litigated information dispute since Raines, 

the Executive Branch has argued that these information 
18

disputes have no place in federal court. In Holder, the Obama 

Administration argued that congressional committees could 

not “circumvent [the] historical . . . process of negotiation and 

accommodation by seeking resolution of [an] inherently 

political dispute in federal court.” See Mem. in Supp. of Def.’s 

Mot. to Dismiss at 30, Comm. on Oversight & Reform v. 

Holder, No. 12-cv-1332 (D.D.C. Oct. 15, 2012), Dkt. No. 13-

1. Likewise, in Miers, the Bush Administration claimed that 

federal courts lacked jurisdiction to resolve these disputes, 

arguing that the branches had “for centuries” followed a 

“political accommodation process” to “resolv[e] inter-branch 

disputes over requests for information.” See Mem. in Supp. of 

Def.’s Mot. to Dismiss at 24, Comm. on the Judiciary v. Miers,

No. 08-cv-0409 (D.D.C. May 9, 2008), Dkt. No. 16-1. 

Principles and practice thus agree: The Committee may not 

invoke the jurisdiction of the federal courts to enforce its 

subpoena.

C

Congress seems to agree, too. The current statutory regime 

for enforcement of congressional subpoenas reflects 

Congress’s judgment that information disputes between the 

political branches do not belong in federal court. Under this

regime, only the Senate—and not the House—has statutory 

authority to enforce a subpoena in federal court. See 2 U.S.C. 

§ 288d; In re U.S. Senate Permanent Subcomm. on 

Investigations, 655 F.2d 1232, 1238 & n.28 (D.C. Cir. 1981).

What is more, Congress expressly excluded federal jurisdiction 

over suits involving Executive Branch assertions of 

“governmental privilege.” 28 U.S.C. § 1365(a).

The obvious effect of section 1365(a)’s carve-out is to 

keep interbranch information disputes like this one out of court. 

Indeed, the legislative history confirms what the statute’s plain 
19

text says. As the sponsors of a Senate bill amending section 

1365 explained, the law’s “purpose is to keep disputes between 

the executive and legislative branches out of the courtroom.” 

142 Cong. Rec. 19412 (1996) (statement of Sen. Specter); see 

also id. at 19413 (statement of Sen. Levin) (explaining that the 

provision “seeks to keep interbranch disputes out of the 

courtroom”). The Committee asks us to decide this case, but 

Congress expresses its will through statutes—not through the 

litigating positions of one part of one half of the bicameral 

body. We will not second-guess the judgment of Congress at 

the Committee’s behest, and the absence of congressional 

authorization is the third strike against the Committee’s case.

* * *

We conclude that separation-of-powers principles and 

historical practice compel us to dismiss for lack of jurisdiction

the Committee’s suit to enforce a congressional subpoena 

against the Executive Branch.

III

The Committee (and the district court’s opinion) rely on 

three core arguments to the contrary. First, the Committee 

attempts to frame the case as a run-of-the-mill dispute about 

the effect of a duly issued subpoena—the kind of “legal 

question” that courts have long adjudicated. Committee Br. 10, 

17-20, 23-25. Second, relying largely on Arizona State 

Legislature v. Arizona Independent Redistricting Commission, 

135 S. Ct. 2652 (2015), the Committee argues that it may assert 

an “institutional injury” to satisfy Article III, even in a suit 

against the Executive Branch. Committee Br. 20-23. Third, the 

Committee insists that circuit precedent before Raines requires 

that we resolve this dispute. Committee Br. 17-20. None of 

these arguments is persuasive.
20

A

Seeking to minimize the significant separation-of-powers 

concerns raised by this suit, the Committee—like the district 

court—describes this matter as nothing more than a “gardenvariety” information dispute that “federal courts address 

routinely.” Mem. Op. at 47-48, J.A. 895-96; see also 

Committee Br. 24-25.

Not so. As even the district court acknowledged, “for two 

hundred years after the Founding[,] lawsuits between the 

Congress and the Executive branch did not exist, even though 

disputes between the Legislative and Executive Branches over 

congressional requests for information have arisen since the 

beginning of the Republic.” Mem. Op. at 51, J.A. 899 

(emphasis added) (internal quotation marks omitted). But the 

district court discounted this history. It saw no reason to 

distinguish disputes “between [the] branches of government” 

from those “between Congress and an individual party.” Id. at 

54, J.A. 902.

By focusing on the abstract legal question presented while 

ignoring the parties’ identities, the district court gave short 

shrift to the separation-of-powers principles at stake. In the 

district court’s view, “[j]urisdiction exists because the 

Judiciary Committee’s claim presents a legal question, and it is 

‘emphatically’ the role of the Judiciary to say what the law is.”

Id. at 4, J.A. 852 (citing Marbury, 5 U.S. at 177). But that’s not 

how Article III works. “The Federal Judiciary is vested with 

the ‘Power’ to resolve not questions and issues but ‘Cases’ or 

‘Controversies.’” Ariz. Christian Sch. Tuition Org., 563 U.S. at

132. We resolve legal questions “in the course of carrying out 

the judicial function of deciding cases,” DaimlerChrysler 

Corp., 547 U.S. at 340, not the other way around. Were it 
21

otherwise, there would be no prohibition on advisory opinions; 

no doctrines on standing, ripeness, or mootness.

The Committee and the district court thus ask the wrong 

question: Have we resolved this type of legal issue before? 

Article III compels us to ask instead: Have we resolved this 

type of case or controversy before?

Here, the answer is clearly no. First, the Committee 

gestures at instances in which federal courts have resolved 

disputes over executive privilege. “For more than two hundred 

years,” the Committee argues, “courts have adjudicated the 

Executive’s legal obligations to respond to subpoenas.” 

Committee Br. 24. But those cases arose out of efforts to 

enforce judicial subpoenas in criminal cases—not, as here, 

congressional subpoenas. See Nixon, 418 U.S. at 683; United 

States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, 

C.J.); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).

In United States v. Nixon, for instance, the Supreme Court 

resolved President Nixon’s claims of executive privilege 

against a subpoena issued by a district court. That case was 

clearly within a federal court’s power to adjudicate; it involved 

a subpoena issued under the court’s own authority in the 

“regular course of a federal criminal prosecution.” Nixon, 418 

U.S. at 697. Indeed, the Supreme Court reiterated that “the 

primary constitutional duty of the Judicial Branch [is] to do 

justice in criminal prosecutions.” Id. at 707; see also Cheney, 

542 U.S. at 384 (“The distinction Nixon drew between criminal 

and civil proceedings is not just a matter of formalism.”). 

Unlike Nixon, this case involves an effort to enforce a 

congressional subpoena lacking the same impact on the rights 

of private actors.
22

Second, federal courts also have considered the 

permissibility of congressional subpoenas, but such cases arose 

in three discrete procedural contexts different from this one: (1) 

prosecutions for criminal contempt of Congress, see, e.g., 

Watkins v. United States, 354 U.S. 178 (1957); 2 U.S.C. 

§§ 192-194; (2) applications for writs of habeas corpus, see, 

e.g., McGrain v. Daugherty, 273 U.S. 135 (1927); and (3) civil 

suits affecting the rights of private parties, see, e.g., Kilbourn 

v. Thompson, 103 U.S. 168 (1880); Mazars, 940 F.3d at 710. 

Like subpoenas issued in the context of a criminal prosecution, 

and unlike this litigation, all three of these settings directly 

implicate the “rights of individuals,” Marbury, 5 U.S. at 170, 

and thus fall within the heartland of federal jurisdiction.

B

The Committee next asserts that it has suffered an 

“institutional injury” that gives it standing to pursue this suit.

Committee Br. 15. The Committee argues that the House 

possesses the “sole Power of Impeachment,” along with a

broad power to investigate. See U.S. CONST. art. I, § 2, cl. 5 

(impeachment); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 

491, 504-06 (1975) (investigations). In turn, the House 

delegated to the Committee the authority “to conduct 

investigations and issue subpoenas.” Committee Br. 15-16.

McGahn’s refusal to appear impedes that investigation, so the 

Committee concludes that it “has alleged an actual and 

concrete injury to its right to compel information.” Id. at 15. 

The Committee’s argument fails. Its seemingly 

straightforward theory is incompatible with the Supreme 

Court’s case law on legislative standing. Worse, the theory

lacks a sensible limiting principle.
23

The Committee claims that Arizona State Legislature, 135 

S. Ct. at 2652, “puts to rest any notion that a legislative 

body . . . lacks standing to redress an injury to its rights and 

powers.” Committee Br. 21. There, the Supreme Court held 

that a state legislature had Article III standing to assert an 

“institutional injury” to its redistricting powers under the 

Constitution’s Election Clause. Ariz. State Legislature, 135 

S. Ct. at 2664-65. If the Arizona State Legislature had standing 

to sue there, the Committee argues, then surely the Committee 

has standing to sue here.

We reject the Committee’s extension of Arizona State 

Legislature to this very different dispute. For one thing, the 

Court made abundantly clear that its decision did “not touch or 

concern” the question presented here: “whether Congress has 

standing to bring a suit against the President.” Id. at 2665 n.12. 

The Court acknowledged that a suit between components of the 

federal government would raise “separation-of-powers 

concerns absent [in suits involving state legislatures].” Id.

In any event, the Committee’s reading of Arizona State 

Legislature is also flatly inconsistent with Raines. True, that 

decision’s specific holding is that “individual legislators . . . 

seeking to advance an institutional interest” lack standing. 

Committee Br. 20. But Raines says much more, and its 

reasoning forecloses the Committee’s theory. As explained 

above, “confrontations between one or both Houses of 

Congress and the Executive Branch” were never resolved “on 

the basis of claimed injury to official authority or power.” 

Raines, 521 U.S. at 826. It wasn’t just Members of Congress 

that never sued; Congress itself never sued either. We decline 

the Committee’s invitation to treat Raines’s reasoning as dicta, 

but to read Arizona State Legislature to hold what the Court 

expressly said it did not.
24

The Committee’s theory of institutional injury is also 

boundless. If one component of the federal government may 

assert an institutional injury against another, the Committee’s 

theory sweeps in a huge number of seemingly nonjusticiable 

claims. See Barnes v. Kline, 759 F.2d 21, 44-47 (D.C. Cir. 

1985) (Bork, J., dissenting), vacated sub nom. Burke v. Barnes, 

479 U.S. 361 (1987).

Consider some possible suits: The House could sue the 

Senate for “adjourn[ing] for more than three days” “without 

[its] Consent,” U.S. CONST. art. I, § 5, cl. 4, or for violating the 

House’s prerogative to originate “Bills for raising Revenue,” 

id. § 7, cl. 1. Congress could sue the President for failing to 

“from time to time give . . . Information of the State of the 

Union,” id. art. II, § 3, cl. 1, or for engaging in armed conflict 

in violation of the Declare War Clause, id. art. I, § 8, cl. 11. 

And why stop with the federal government? Congress could 

sue a State for “lay[ing] any Duty of Tonnage” or “enter[ing] 

into any Agreement or Compact with Another State” without 

“the Consent of Congress.” Id. art. I, § 10, cl. 3. 

Perhaps enterprising litigants could distinguish these other 

institutional injuries from the House’s interest in 

investigations, but even then the Committee’s argument fares 

no better: Either the Committee’s asserted “institutional injury” 

is sui generis—a ticket good for one ride only—or its theory 

throws open the courthouse doors to lawsuits that seem not to 

belong. We reject the Committee’s extension of Arizona State 

Legislature to suits between the Legislative and Executive 

Branches.

C

The Committee also relies on our circuit precedent. In the

past, the Committee’s standing claims would have fared better 
25

under our case law, but not so today. Beginning in 1974, the 

D.C. Circuit experimented with an expansive view of 

legislative standing, permitting even individual Members of 

Congress to assert institutional injuries against the Executive

Branch. See, e.g., Moore v. U.S. House of Representatives, 733 

F.2d 946, 951 (D.C. Cir. 1984) (suit alleging a violation of the 

Origination Clause); Goldwater v. Carter, 617 F.2d 697, 702 

(D.C. Cir. 1979) (en banc) (suit alleging a violation of the 

Treaty Clause), vacated, 444 U.S. 996 (1979); Kennedy v. 

Sampson, 511 F.2d 430, 435-36 (D.C. Cir. 1974) (suit 

challenging a pocket veto); see also Raines, 521 U.S. at 820 n.4 

(collecting cases). 

Since Raines, however, we have three times considered 

and three times rejected efforts to assert congressional 

standing. See Blumenthal v. Trump, No. 19-5237, slip op. (D.C. 

Cir. Feb. 7, 2020) (per curiam); Campbell v. Clinton, 203 F.3d 

19 (D.C. Cir. 2000); Chenoweth v. Clinton, 181 F.3d 112 (D.C. 

Cir. 1999). Although we have never formally overruled our 

earlier legislative-standing cases, Raines’s reasoning casts 

serious doubt on their continued vitality. Nevertheless, the

Committee argues that three of our pre-Raines decisions 

compel a conclusion that the Committee has standing: AT&T I,

551 F.2d at 391; United States v. AT&T, 567 F.2d 121 (D.C. 

Cir. 1977) (“AT&T II”); and Senate Select Committee, 498 F.2d 

at 725. None of these cases authorizes the Committee’s suit.

In AT&T I, a House subcommittee issued a subpoena to 

AT&T instructing it to turn over certain national-security 

documents arising out of an executive-branch wiretapping 

program. 551 F.2d at 385-86. After negotiations between the 

subcommittee and the Executive Branch broke down, DOJ

filed suit, seeking an injunction to prevent AT&T from 

releasing the documents. Id. at 387. The subcommittee 

authorized a member of the House to intervene as a defendant, 
26

and we concluded that “the House as a whole has standing to 

assert its investigatory power, and can designate a member to 

act on its behalf.” Id. at 387, 391. The Committee seizes on this 

language, claiming that McGahn’s argument that it lacks

standing is foreclosed by circuit precedent.

The Committee is wrong. First, the entire analysis of the 

House’s standing to intervene in AT&T I consists of a single 

sentence, followed by no citations. “[D]rive-by jurisdictional 

rulings of this sort” typically “have no precedential effect.” 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998).

Second, Raines casts serious doubt on this circuit’s line of 

cases that freely dispensed legislative standing. See 

Chenoweth, 181 F.3d at 117 n.* (concluding that Raines left 

“no room for the broad theory of legislative standing that we 

adopted in Moore and Kennedy”). As discussed, Raines’s 

emphasis on separation-of-powers issues and “historical 

practice,” 521 U.S. at 826-29, compels the conclusion that we 

lack jurisdiction to consider lawsuits between the Legislative 

and Executive Branches. Indeed, the Raines Court knew that 

we had authorized Members of Congress to “assert injury to 

their institutional power as legislators,” id. at 820 n.4, but the 

Court still concluded that “no suit was brought on the basis of 

claimed injury to official authority or power,” id. at 826 

(emphasis added). The Court’s historical analysis thus 

discounted our brief forays into legislative standing, and we are 

accordingly hesitant to find standing based solely on AT&T I.

Third, AT&T I is distinguishable. Before Raines, we kept 

“distinct our analysis of standing and our consideration of the 

separation of powers issues raised when a legislator [brought] 

a lawsuit concerning a legislative or executive act.” 

Chenoweth, 181 F.3d at 114 (emphases added). In other words, 

a holding that Congress had standing was not necessarily a 
27

holding that the case was justiciable. But in Raines, the 

Supreme Court was “unmoved by [our circuit’s] concern . . . 

that the separation of powers issues would distort [the] standing 

analysis.” Id. at 115 (internal quotation marks omitted). After 

Raines, we recognized that we should “merge our separation of 

powers and standing analyses” when applying the old

legislative-standing cases. Id. at 116. 

Although AT&T I said that “the House as a whole has 

standing to assert its investigatory power,” 551 F.2d at 391, that 

wasn’t the end of the analysis. The court also considered 

whether the suit presented a nonjusticiable political question—

an issue it found “difficult” and chose to “leave open pending 

further proceedings.” Id. Together, AT&T I’s standing holding 

and its (lack of a) separation-of-powers holding nullify the 

case’s precedential effect. Under Chenoweth, we “merge” our 

separation-of-powers and standing analyses. 181 F.3d at 116. 

And AT&T I’s “merged” holding decides not to decide whether 

the case was justiciable.

AT&T I was not the end of the matter. Unable to strike a 

bargain, the parties returned to court to seek a judicial 

resolution. See AT&T II, 567 F.2d at 121. After laying out the 

serious separation-of-powers concerns, we ultimately held that 

“complete judicial abstention on political question grounds is

not warranted” if “it is or may be possible to establish an 

effective judicial settlement.” Id. at 123, 127 (emphasis added). 

We then adopted a “gradual approach” designed to encourage 

an “accommodation between the two branches.” Id. at 131. 

Here, by contrast, there is no prospect of a judicially managed 

settlement. The Committee claims an absolute right to compel 

McGahn’s testimony; the President an absolute right to 

withhold it. J.A. 845 (“Defendant agrees [with the plaintiff] 

that the parties’ negotiations have now reached a stage at which 

it is clear that fundamental disagreements remain [and] . . . it 
28 

appears unlikely the parties will reach a mutually acceptable 

accommodation.”). Therefore, neither AT&T I nor AT&T II 

permits the Committee to bring suit to enforce its subpoena. 

The Committee next argues that Senate Select Committee, 

498 F.2d at 725, authorizes this suit. Committee Br. 18. Again, 

the Committee is wrong. First, Senate Select Committee did not 

address standing at all, and “the existence of unaddressed 

jurisdictional defects has no precedential effect.” Lewis v. 

Casey, 518 U.S. 343, 352 n.2 (1996). Second, for the reasons 

already given, Raines casts doubt on our prior legislative 

standing decisions. Finally, and in any event, Senate Select 

Committee is distinguishable. There, Congress passed a statute 

that expressly authorized the lawsuit. See 498 F.2d at 727 n.10; 

Pub. L. No. 93-190, 87 Stat. 736 (1973). A statute could 

mitigate the separation-of-powers considerations that counsel 

against adjudicating interbranch disputes. If Congress passed 

such a statute here, the analysis might be different. See infra 

Part V. But the fact that no such statute exists is enough to 

distinguish Senate Select Committee. 

* * * 

Ultimately, the Committee’s reliance on our old 

legislative-standing cases cannot save it from confronting 

Raines. Our expansive approach to legislative standing was 

doubtful then, see Barnes, 759 F.2d at 44 (Bork, J., dissenting) 

(challenging legislative standing); Moore, 733 F.2d at 956 

(Scalia, J., concurring in the judgment) (same), and is even 

more so now. Regardless, AT&T I, AT&T II, and Senate Select

Committee are distinguishable from this case, and nothing in 

our precedent compels us to ignore the serious separation-ofpowers problems raised by the Committee’s lawsuit. 
29

IV

The dissent would hold that the Committee has standing.

It reasons that (1) Raines does not foreclose the Committee’s

lawsuit, see Dissent at 5-14; that (2) we can and should resolve 

this interbranch dispute because the federal courts are the 

Committee’s “last resort,” see id. at 15-19; and that (3) 

declining to decide this matter will frustrate Congress’s 

capacity to perform its constitutional functions, see id. at 1-5, 

18-19.

Respectfully, each argument is wrong. The dissent 

misreads Raines, and it wrongly assumes that our jurisdiction 

expands or contracts depending on a legal question’s 

importance or a litigant’s alternative remedies. Worse still, the 

dissent imagines Congress to be politically impotent, then uses 

that supposed powerlessness to justify intrusive judicial 

supervision of the elected branches.

A

Begin with Raines. The dissent suggests that Raines never 

held that the Constitution bars Congress from asserting a 

cognizable institutional injury against the Executive Branch.

See Dissent at 6-7, 10-11. But the Court recognized that suits 

brought by Congress raise special “separation-of-powers 

concerns.” Raines, 521 U.S. at 824 n.8; see also Ariz. State 

Legislature, 135 S. Ct. at 2665 n.12. And the Court made clear 

that history “cut[s] against” congressional standing, 

emphasizing that “in analogous confrontations between one or 

both Houses of Congress and the Executive Branch, no suit was 

brought on the basis of claimed injury to official authority or 

power.” Raines, 521 U.S. at 826 (emphasis added). If Raines 

were as narrow as the dissent would have it, the Court would 

not have indulged in pages of superfluous historical analysis.
30

And the dissent has no real answer to that history. It 

protests that interbranch information disputes have been

“traditionally” amenable to judicial resolution; for support, the 

dissent cites the same two pre-Raines appellate decisions from 

1974 and 1976. Dissent at 8-9 (citing Senate Select Committee

and AT&T I). But the 25 odd years between 1974 and 1997

represent a narrow slice of a constitutional tradition that began 

over 225 years ago. Unsurprisingly, Raines took a broader view 

of the history, and from that perspective, the legislativestanding doctrine of the 1970s was a blip on the radar. Indeed, 

the Supreme Court ignored our circuit’s pre-Raines legislativestanding cases when it surveyed the historical record and found

“no suit” had been brought in “analogous confrontations.” 

Raines, 521 U.S. at 826. We too decline to rest our decision on 

a fleeting diversion from otherwise uniform historical 

experience.

B

Unmoored from Raines, the dissent then asserts that

federal courts may resolve interbranch disputes “as a last 

resort.” Dissent at 15 (internal quotation marks omitted). The 

dissent identifies a few factors that make it “appropriate” to 

“exercise jurisdiction.” Id. Here, we must answer only a 

“narrow” legal question, Congress’s “alternative remedies” are 

“impracticable,” and “there is nothing political about the case 

itself.” Dissent at 16, 17, 22.

But Article III limits us to “Cases” and “Controversies,” 

and an interbranch dispute does not transform into a justiciable 

suit simply because Congress has exhausted its political 

remedies and packaged its grievance as a tidy constitutional 

puzzle. Instead, we must ask whether this lawsuit is the kind of 

dispute that we may resolve. If so, we must answer the legal 
31

question “properly before [us],” even if its resolution has 

significant “political implications.” Zivotofsky v. Clinton, 566 

U.S. 189, 194, 196 (2012). If not, we must refuse to answer it, 

even if doing so seems (by our lights) prudent. See Cohens v. 

Virginia, 19 U.S. 264, 404 (1821) (“We have no more right to 

decline the exercise of jurisdiction which is given, than to usurp 

that which is not given.”).

What the dissent articulates instead is an impermissible 

jurisdictional balancing test: How narrow must the legal issue 

be? How powerless Congress? And when is a matter too 

political? This approach would allow federal courts to make

“case-by-case” determinations “whether it is ‘wise’ or ‘useful’ 

for us to intervene in a particular dispute.” Moore, 733 F.2d at

963 (Scalia, J., concurring in the judgment). We took this tack 

once before. Prior to Raines, we developed a doctrine of 

“circumscribed equitable discretion” that prevented us 

sometimes (but only sometimes) from resolving legislativestanding cases, and we have abandoned that doctrine since. See 

Chenoweth, 181 F.3d at 114-16. The dissent would replicate 

that dubious discretionary regime, now under the guise of 

Article III standing. We should not make the same mistake 

again.

C

The dissent’s real concern seems to be that our decision 

will “dramatically undermin[e]” Congress’s capacity to “fulfill 

its constitutional obligations.” Dissent at 19. But the dissent 

undervalues the political tools at Congress’s disposal.

Although the dissent spends pages explaining OLC’s position 

that Congress cannot resort to the criminal-contempt statute or 

to its inherent contempt power, see id. at 12-14, 17-19, it pays 

almost no attention to Congress’s many political tools.
32

Take the Appropriations Clause. The Executive Branch 

cannot spend a dime without Congress’s consent, U.S. CONST.

art. 1, § 9, cl. 7, and that’s a powerful incentive to follow

Congress’s instructions. Don’t take our word for it; take James 

Madison’s: “This power over the purse, may in fact be regarded 

as the most compleat and effectual weapon with which any 

constitution can arm the immediate representatives of the 

people, for obtaining a redress of every grievance, and for 

carrying into effect every just and salutary measure.” THE 

FEDERALIST NO. 58, at 394 (J. Cooke ed. 1961) (emphasis 

added). The dissent likewise discounts the Senate’s 

appointment power, the impeachment power, and the informal 

power to “publicly embarrass executive branch officials.” 

Devins, supra, at 134. 

The dissent suggests that Congress cannot fend for itself 

because these “remedies cannot be undertaken by a single 

House of Congress.” Dissent at 17. But that’s a feature of a 

bicameral legislature, one with “finely wrought and 

exhaustively considered” mechanisms through which the 

chambers act. Chadha, 462 U.S. at 951. Anyway, many of the 

remedies can be exercised without majorities in both chambers:

Most appropriations must be approved by the House and 

Senate every year. A censure vote takes a bare majority from 

either chamber. And Members of Congress can denounce the 

Executive Branch from their own bully pulpits.

With this range of political tools, Congress can tailor its 

sanctions to the gravity of the Executive Branch’s offense. A 

congressional inquiry may begin and end with a polite request 

for information. Or a chamber of Congress may escalate by, 

say, issuing a formal subpoena, threatening to withhold 

appropriations, or passing articles of impeachment. By the 

same token, the Executive Branch’s interest in reaching a

mutually agreeable compromise should grow as Congress turns 
33

up the heat. See Devins, supra, at 132 (“[T]he executive and 

legislative branches negotiate with each other in an atmosphere 

in which each branch is aware of the other’s ability to raise the 

stakes and the complexity of the negotiating process.”).

This political process also offers an array of possible 

resolutions in interbranch disputes—a diverse set of 

compromises and accommodations. For instance, the

Executive Branch might agree to waive executive privilege if 

the Legislative Branch narrows its document request. Or if the 

dispute concerns an official’s testimony, the Executive Branch 

might agree to allow an official to answer written 

interrogatories or to testify in private. See, e.g., Decl. of 

Michael M. Purpura, Deputy Counsel to the President, J.A. 717 

(noting that the White House Counsel’s Office discussed these 

possible accommodations with the Committee).

The dissent’s approach would eliminate this dynamic 

system of escalating political sanctions and flexible 

settlements. When a lawsuit is the end-game of any interbranch 

dispute, the response to an overbroad subpoena isn’t “Let’s 

talk” but “We’ll see you in court.” And the resolution of such 

a dispute isn’t a negotiated compromise—one that leaves 

everyone a little dissatisfied—but a rigid judicial judgment. No 

doubt, leaving these disputes to the political process is messy. 

Sometimes, the Executive Branch will seem recalcitrant, or a 

congressional act of retaliation will seem disproportionate. But

the messiness and flexibility of the political process come as a 

package deal. Judicial involvement might resolve a few 

interbranch disputes more cleanly, but it would also eliminate 

the process’s flexibility. And anyway, even if a jurisdiction of

“last resort” were a better system, Article III forbids federal 

judges from deciding—on a case-by-case basis—when it 

makes sense to settle the score.
34

The dissent also suggests that the political process will 

systematically favor the Executive Branch, e.g., Dissent at 1,

24-25, but it’s far from obvious that judicial resolution is better

even for Congress. Litigation takes a long time, and Congress 

turns over every two years. In Miers, for instance, our circuit 

declined to expedite the appeal of the district court’s order 

because the case could not be “fully and finally resolved by the 

Judicial Branch” before the Congress that issued the subpoenas 

expired. Comm. on the Judiciary v. Miers, 542 F.3d 909, 911 

(D.C. Cir. 2008) (per curiam); see also Chafetz, supra, at 1150 

(“[C]ourts tend to move at a pace that is poorly suited to 

Congress’s need for timely information.”). And in some 

information disputes, the Executive Branch may wind up 

“giving up the information and caving in because those who 

hold the information are not up to the fight.” Devins, supra, at 

133 (quoting Theodore Olson, former Assistant Attorney 

General for the Office of Legal Counsel). A win for the 

Committee today may only hamstring Congress in the future.

But what about this case? What about the President’s 

blatant refusal to cooperate with the Committee’s investigation

into his alleged wrongdoing? To the dissent, that this 

obstruction should go unredressed seems unimaginable. See 

Dissent at 17.

Nevertheless, the inevitable consequence of Article III’s 

case-or-controversy requirement is that Congress will obtain 

only the concessions it can wrest from the Executive Branch

with the ample but imperfect tools at its disposal. Sometimes, 

those tools will yield fewer concessions than Congress might 

wish, but the remedy for that perceived wrong is in politics or

at the ballot box. If federal courts were to swoop in to rescue 

Congress whenever its constitutional tools failed, it would not 

just supplement the political process; it would replace that

process with one in which unelected judges become the 
35

perpetual “overseer[s]” of our elected officials. Youngstown, 

343 U.S. at 594 (Frankfurter, J., concurring). That is not the

role of judges in our democracy, and that is why Article III 

compels us to dismiss this case.

V

We conclude by noting a few limitations on the scope of 

this decision: First, we do not address whether a chamber of 

Congress may bring a civil suit against private citizens to 

enforce a subpoena. At oral argument, DOJ asserted that

Article III precludes a chamber of Congress from ever 

enforcing its subpoena in civil litigation—even against private 

parties. See Oral Arg. Tr. 30:2-10. If adopted, DOJ’s position

would render unconstitutional the statutes authorizing the 

Senate to enforce subpoenas in federal court. See 2 U.S.C. 

§ 288d(a); 28 U.S.C. § 1365(a); see also Senate Permanent 

Subcomm., 655 F.2d at 1238 n.28. Of course, such a lawsuit 

would not be an interbranch dispute, so it would present very 

different separation-of-powers concerns. We see no reason to 

address—let alone to adopt—DOJ’s expansive argument here.

Second, we do not decide whether a congressional statute 

authorizing a suit like the Committee’s would be constitutional.

Congress may sometimes “elevate to the status of legally 

cognizable injuries concrete, de facto injuries that were 

previously inadequate in law,” Spokeo, 136 S. Ct. at 1549

(internal quotation marks and alterations omitted), and a statute 

authorizing suit would reflect Congress’s (and perhaps the 

President’s) view that judicial resolution of interbranch 

disputes is “consistent with a system of separated powers,” 

Allen, 468 U.S. at 752. Perhaps that statute would render suits 

to enforce subpoenas “judicially cognizable,” Raines, 521 U.S. 

at 819, though of course Congress could not “erase Article III’s 
36

standing requirements,” id. at 820 n.3. We leave that issue for 

another day.

Third, we do not question the federal courts’ authority to 

adjudicate disputes historically recognized to be within our 

jurisdiction. For example, in criminal prosecutions, we can 

adjudicate executive-privilege claims arising out of criminal 

subpoenas, as in Nixon, 418 U.S. at 683. Likewise, we may 

adjudicate cases concerning congressional subpoenas if they 

implicate the rights of private parties, as in Mazars, 940 F.3d 

at 723 (noting that the Committee’s subpoena was issued to a 

“non-governmental custodian[] of the President’s financial 

information” (emphasis added)). Such cases ask us to “decide 

on the rights of individuals,” Marbury, 5 U.S. at 170, and we 

“cannot avoid” resolving difficult constitutional questions 

“merely because the issues have political implications,” 

Zivotofsky, 566 U.S. at 196.

Finally, we express no view on the merits, except to 

emphasize a crucial aspect of our constitutional design. Even 

when courts have no role policing the boundaries of the 

branches’ prerogatives in a dispute about the operations of 

government, the branches have a duty to conduct themselves 

with “autonomy but reciprocity” and to “integrate the[ir] 

dispersed powers into a workable government.” Youngstown, 

343 U.S. at 635 (Jackson, J., concurring). Heeding Justice 

Jackson’s injunction, the branches have long resolved their 

differences through negotiation and compromise. 

That is to be encouraged. The branches may (and will) 

disagree in good faith about their obligations to one another; 

that is the point of a system in which “[a]mbition . . . 

counteract[s] ambition.” THE FEDERALIST NO. 51, at 349 

(James Madison) (J. Cooke ed. 1961). But the legitimate scope 

of that disagreement is not boundless. Instead, the Constitution 
37

binds Members of Congress and the Executive Branch by

“Oath or Affirmation,” see U.S. CONST. art. II, § 1; id. art. VI; 

33 U.S.C. § 3331, and those so bound have a duty to conduct 

themselves with fidelity to the Constitution.

VI

We lack jurisdiction to hear and therefore dismiss the 

Committee’s lawsuit because it does not present an Article III 

case or controversy. The judgment is vacated, and the case is 

remanded with instructions to direct that the complaint be 

dismissed.

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring: 

I join Judge Griffith in concluding that, under United States 

Supreme Court precedent, the Committee lacks standing. I am 

reluctant, however, to endorse what I view as McGahn’s 

categorical stance. In his swing for the fences, McGahn has 

passed up a likely base hit. First, McGahn urges us to foreclose 

Article III standing when the Congress, or a House thereof,

asserts any institutional injury in any interbranch dispute;

1

I do 

not believe, however, Supreme Court precedent supports a 

holding of that scope. Second, McGahn’s assertion of absolute 

testimonial immunity against compelled congressional process 

is, in my opinion, a step too far, again, under Supreme Court 

precedent.

I

As the majority opinion makes clear, Raines v. Byrd, 521 

U.S. 811 (1997), is the touchstone of our legislative standing 

analysis. And if this suit pitted individual legislators against the 

prerogatives of the Executive Branch, a straightforward 

application of Raines would resolve it in short order. Cf. 

Blumenthal v. Trump, 949 F.3d 14, 19 (D.C. Cir. 2020) (per 

curiam). But the issues are far from being on all fours with 

Raines. Indeed, whereas it was “importan[t]” in Raines that the 

individual legislators, despite alleging an institutional injury, 

“ha[d] not been authorized to represent their respective Houses 

of Congress,” 521 U.S. at 829, the Committee on the Judiciary

(Committee) has been authorized by the House of 

Representatives to litigate the enforceability of the 

Committee’s duly issued subpoena, see H.R. Res. 430, 116th 

Cong. (2019). Thus, although Raines may have sounded the 

death knell for individual legislators asserting an institutional 

1

 McGahn’s counsel went further, arguing that “the broadest 

formulation of our argument would be that Congress, when it’s 

asserting its institutional prerogatives, never ha[s] standing.” Oral 

Arg. Tr. 13:14–16 (emphasis added).
2

injury at the hand of the Executive, it may not necessarily 

follow that legislative standing no longer exists in all

circumstances. Cf. Campbell v. Clinton, 203 F.3d 19, 32 (D.C. 

Cir. 2000) (Randolph, J., concurring in the judgment) (“If the 

Supreme Court had meant to do away with legislative standing 

[in Raines], it would have said so and it would have given 

reasons for taking that step.”). At the same time that Raines and 

its progeny take us in a direction that is, for now, fairly clear, it 

is important to remember that this case presents federal 

legislators qua the Congress, that is, as an institutional plaintiff 

asserting an institutional injury. Whether such institutional 

plaintiff with an institutional injury could change that direction 

awaits Supreme Court resolution. But lest there be any doubt, 

I join the holding of the majority opinion as well as its 

rationale: namely, the Committee lacks standing under 

Supreme Court precedent.

Article III of the Constitution confines the federal judicial 

authority to “Cases” or “Controversies.” U.S. CONST. art. III, 

§ 2, cl. 1. In turn, “[s]tanding to sue is a doctrine rooted in the 

traditional understanding of a case or controversy” and “limits 

the category of litigants empowered to maintain a lawsuit in 

federal court.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 

(2016). “[T]he ‘irreducible constitutional minimum’ of 

standing consists of three elements. The plaintiff must have (1) 

suffered an injury in fact, (2) that is fairly traceable to the 

challenged conduct of the defendant, and (3) that is likely to be 

redressed by a favorable judicial decision.” Id. (citation 

omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 

(1992)). The Supreme Court has “also stressed that the alleged 

injury must be legally and judicially cognizable,” which 

“requires, among other things, that the plaintiff have suffered 

‘an invasion of a legally protected interest which 

is . . . concrete and particularized,’ and that the dispute is 

‘traditionally thought to be capable of resolution through the 
3

judicial process.’” Raines, 521 U.S. at 819 (citation omitted) 

(first quoting Lujan, 504 U.S. at 560; then quoting Flast v. 

Cohen, 392 U.S. 83, 97 (1968)). Although this familiar 

formulation is a prerequisite to federal jurisdiction in all 

instances, it is especially important here, where the dispute 

implicates the separation-of-powers considerations 

underpinning our standing doctrine.

“The law of Article III standing, which is built on 

separation-of-powers principles, serves to prevent the judicial 

process from being used to usurp the powers of the political 

branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 

(2013); see Raines, 521 U.S. at 820 (Article III is “about 

keeping the Judiciary’s power within its proper constitutional 

sphere”). The cabining of power within the respective branches 

was of utmost importance to the Founders. Upon leaving 

office, President George Washington highlighted “[t]he 

necessity of reciprocal checks in the exercise of political 

power, by dividing and distributing it into different 

depositories and constituting each the guardian of the public 

weal against invasions by the others.” George Washington, 

Washington’s Farewell Address to the People of the United 

States (Sept. 19, 1796), reprinted in S. DOC. NO. 106–21, at 19 

(2000) [hereinafter Farewell Address]. Any change in the 

respective allocations of power must be effected by the people 

through constitutional amendment because, as Washington 

cautioned, there should “be no change by usurpation; for 

though this, in one instance, may be the instrument of good, it 

is the customary weapon by which free governments are 

destroyed.” Id. The fear, then, is that federal courts will exceed 

their circumscribed authority by exercising jurisdiction even if

a plaintiff lacks the concrete, personalized interest mandated

by the case-or-controversy limitation. See United States v. 

Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring) 
4

(“Relaxation of standing requirements is directly related to the 

expansion of judicial power.”).

To guard against the expansion of judicial power at the 

expense of the coequal branches, “our standing inquiry has 

been especially rigorous when reaching the merits of the 

dispute would force us to decide whether an action taken by 

one of the other two branches of the Federal Government was 

unconstitutional.” Raines, 521 U.S. at 819–20; cf. Chenoweth 

v. Clinton, 181 F.3d 112, 114 (D.C. Cir. 1999) (separation-ofpowers considerations “are particularly acute . . . when a 

legislator attempts to bring an essentially political dispute into 

a judicial forum”). It is unclear just how much rigor is 

mandated by Raines’s “especially rigorous” instruction.2

Although we should “exercise self-restraint in the utilization of 

our power to negative the actions of the other branches,” 

Richardson, 418 U.S. at 188 (Powell, J., concurring), the 

separation-of-powers element magnifies, rather than modifies, 

our standing analysis.3In other words, the existence of an 

2

 Indeed, “[t]he cases cited to support this dictum . . . are 

merely cases where a determination of unconstitutionality is avoided 

by applying what there is no reason to believe is anything other than 

normal standing requirements.” Ariz. State Legislature v. Ariz. 

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2697 (2015) (Scalia, 

J., dissenting).

3

 Complicating matters, some Supreme Court Justices have 

hinted that separation-of-powers principles factor into our 

substantive analysis. For example, in Virginia House of Delegates v. 

Bethune-Hill, 139 S. Ct. 1945 (2019), Justice Alito interpreted the 

majority’s “use of the term ‘judicially cognizable’ injury rather than 

‘concrete’ injury” to mean that the decision was “not really based on 

the Lujan factors” that frame the traditional standing inquiry, id. at 

1958 (Alito, J., dissenting). And “[i]f one House of 

Congress . . . attempt[s] to invoke the power of a federal court, the 

court must consider whether this attempt is consistent with the 

structure created by the Federal Constitution. An interest 
5

interbranch dispute does not by itself determine whether the 

traditional requisites of standing are satisfied. Instead, we must 

conduct a “careful[] inquir[y]” to determine whether the 

“claimed injury is personal, particularized, concrete, and 

otherwise judicially cognizable.” Raines, 521 U.S. at 820. At 

the same time, exercising extra care does not require us to find 

the dispute beyond our ken. “Proper regard for the complex 

nature of our constitutional structure requires neither that the 

Judicial Branch shrink from a confrontation with the other two 

coequal branches of the Federal Government, nor that it 

hospitably accept for adjudication claims of constitutional 

violation by other branches of government where the claimant 

has not suffered cognizable injury.” Valley Forge Christian 

Coll. v. Ams. United for Separation of Church & State, Inc., 

454 U.S. 464, 474 (1982).

Thus, as in every case that comes before us, the proper 

starting point is to ask whether the Committee has suffered a 

cognizable injury. Although early American courts articulated 

that the Article III case-or-controversy limitation contemplated 

suits brought by individuals, and strict adherence to this tenet 

would seem to preclude “suits between units of government 

regarding their legitimate powers,” Ariz. State Legislature v. 

Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2694 

(2015) (Scalia, J., dissenting), the Supreme Court has yet to 

impose such a blanket application. To the contrary, recent 

Supreme Court precedent leaves open the possibility of 

legislative standing in an intragovernmental dispute, at least 

where a state legislature asserts an institutional injury. Indeed,

the Supreme Court held that the Arizona Legislature had 

standing to litigate an alleged injury to its redistricting power 

under the Federal Constitution’s Elections Clause against the 

asserted . . . by one or both Houses of Congress that is inconsistent 

with that structure may not be judicially cognizable.” Id. at 1959.
6

State’s independent redistricting commission. Id. at 2663–66. 

Applying the familiar Article III standing analysis, the Court 

required the Arizona Legislature to “‘show, first and foremost,’ 

injury in the form of ‘invasion of a legally protected interest 

that is concrete and particularized and actual or imminent.’” Id. 

at 2663 (quoting Arizonans for Official English v. Arizona, 520 

U.S. 43, 64 (1997) (quotation marks omitted)). And, 

importantly, Raines was not dispositive there. Id. at 2664. 

Raines involved “six individual Members of Congress” but 

“[t]he Arizona Legislature, in contrast, is an institutional 

plaintiff asserting an institutional injury, and it commenced this 

action after authorizing votes in both of its chambers.” Id. 

“That ‘different . . . circumstance’ was not sub judice in 

Raines.” Id. (citation and alteration omitted) (quoting Raines, 

521 U.S. at 830). It is requisite, then, that the legislative 

plaintiff is the same body to which the institutional power at 

stake is entrusted. Cf. Va. House of Delegates v. Bethune-Hill, 

139 S. Ct. 1945, 1953 (2019) (“[I]n Arizona State Legislature

there was no mismatch between the body seeking to litigate and 

the body to which the relevant constitutional provision 

allegedly assigned exclusive redistricting authority.”).

Therefore, “[j]ust as individual members lack standing to assert 

the institutional interests of a legislature, a single House of a 

bicameral legislature lacks capacity to assert interests 

belonging to the legislature as a whole.” Id. at 1953–54 

(citation omitted).

Here, the Committee’s alleged injury is to its power to 

conduct investigations and compel information. Committee Br. 

15–16. The Constitution grants the House of Representatives 

the “sole Power of Impeachment,” U.S. CONST. art. I, § 2, 

cl. 5,

4

and Article I’s grant of “[a]ll legislative Powers” to the 

4

 Although the subpoena issued to McGahn predated the start 

of formal impeachment proceedings, the extended timeline of this
7

Congress, id. art. I, § 1, also impliedly confers the power to 

investigate, which encompasses “the subpoena power [that] 

may be exercised by a committee acting, as here, on behalf of 

one of the Houses,” Eastland v. U.S. Servicemen’s Fund, 421 

U.S. 491, 505 (1975) (citing McGrain v. Daugherty, 273 U.S. 

135, 158 (1927)). “The House has delegated to the Committee 

authority to conduct investigations and issue subpoenas,” 

Committee Br. 16; thus, the Committee’s “investigative 

authority . . . has an express constitutional source,” Senate 

Select Comm. on Presidential Campaign Activities v. Nixon, 

498 F.2d 725, 732 (D.C. Cir. 1974). Because the alleged 

institutional injury infringes, at least in part, on a power vested 

exclusively in the House and, in turn, delegated to the 

Committee, the Supreme Court’s post-Raines precedent does

not categorically foreclose the possibility that the Committee’s

asserted injury could support Article III standing. Competing 

constitutional prerogatives and the potential availability of 

alternative legislative remedies do not paralyze federal courts 

from acting when confronting an otherwise justiciable case.

That said, the Committee’s standing argument may not be dead 

on arrival but it is certainly flatlining.

Assuming the Committee can survive to this point by

relying on Arizona State Legislature and Bethune-Hill, I 

believe those cases take it no further. Most notably, neither 

implicated the separation-of-powers concerns animating both

Raines and this dispute. See Bethune-Hill, 139 S. Ct. at 1958 

(Alito, J., dissenting) (“[T]he decision in Raines rested heavily 

on federal separation-of-powers concerns, which are notably 

absent here.”); Ariz. State Legislature, 135 S. Ct. at 2665 n.12 

(“[A] suit between Congress and the President would raise 

dispute enabled the Committee to catch the moving target and 

provide a more concrete impeachment justification for its inquiry.
8

separation-of-powers concerns absent here.”). This is, of 

course, no trifling distinction.

Although this case involves a controversy—the Executive 

and Legislative Branches’ divergent positions have brought the 

parties and perhaps even the country to a constitutional 

standstill—even that is not enough for Article III standing. “In 

the constitutional sense, controversy means more than 

disagreement and conflict; rather it means the kind of 

controversy courts traditionally resolve.” United States v. 

Nixon, 418 U.S. 683, 696 (1974). And on this point, “historical 

practice appears to cut against” the Committee. Raines, 521 

U.S. at 826. In Raines, the Supreme Court declared that in past 

“confrontations between one or both Houses of Congress and 

the Executive Branch, no suit was brought on the basis of 

claimed injury to official authority or power,” id., and the 

majority opinion here ably expounds on this point, see Majority

Op. 14–16; see also Ariz. State Legislature, 135 S. Ct. at 2695 

(Scalia, J., dissenting) (“[W]e have never passed on a 

separation-of-powers question raised directly by a 

governmental subunit’s complaint.”).

In sum, the Supreme Court has made clear that: first,

legislators lack Article III standing to remedy an institutional 

injury, subject to extremely narrow exceptions, see Raines, 521 

U.S. at 829; and, second, its lead decision finding standing in a 

legislative body asserting an institutional injury does not 

implicate separation-of-powers concerns, see Ariz. State 

Legislature, 135 S. Ct. at 2665 n.12. Nor doesthissuit resemble 

a “case” or “controversy” traditionally contemplated as within 

our Article III power. Accordingly, judicial restraint counsels 

that we find the Committee lacks standing for want of a 

cognizable injury.
9

A contrary holding would extend Arizona State 

Legislature to coequal branches of the federal government in 

defiance of every warning fairly gleaned from Supreme Court 

precedent. To the extent, if any, Arizona State Legislature

leaves the legislative standing door ajar, it is not our role to 

fling that door open. Rather, the continued functioning of our 

constitutional system requires that we exercise abundant

caution before deviating from historical practice, especially

when the underlying dispute is inextricably intertwined with “a 

power contest nearly at the height of its political tension.” 

Raines, 521 U.S. at 833 (Souter, J., concurring in the 

judgment). This credo has guided our country since its birth. 

Again, in his farewell address, Washington implored that 

“[t]owards the preservation of your government . . . it is 

requisite . . . that you resist with care the spirit of innovation 

upon its principles.” Farewell Address, at 15. Indeed, “time and 

habit are at least as necessary to fix the true character of 

governments as of other human institutions” and “experience 

is the surest standard by which to test the real tendency of the 

existing constitution of a country.” Id. Heeding this solemn 

counsel, I, like my colleague, believe we must refrain from 

expanding the federal judicial power to encompass a suit never 

before deemed cognizable. If federal legislative standing is to 

be given new life, it must be the Supreme Court—not an 

inferior court—that resuscitates it.

II

The conclusion that the Committee has failed to assert a 

cognizable injury is the start and end of our decision. See Valley 

Forge, 454 U.S. at 475–76 (“Those who do not possess Art. III 

standing may not litigate as suitors in the courts of the United 

States.”). Yet notwithstanding the Executive Branch received

its requested relief, it is difficult to identify any winners here. 

Over the course of nearly six months, federal courts have been 
10

“improperly and unnecessarily plunged into the bitter political 

battle being waged between the President and Congress.” 

Raines, 521 U.S. at 827. Make no mistake, the merits question 

at issue here is of the utmost importance. Although neither the 

congressional subpoena power nor the President’s interest in 

withholding information is expressly provided for, each is 

impliedly grounded in the Constitution. See Nixon, 418 U.S. at

708 (“[A] presumptive privilege for Presidential 

communications . . . is fundamental to the operation of 

Government and inextricably rooted in the separation of 

powers under the Constitution.”); Watkins v. United States, 354 

U.S. 178, 187 (1957) (“The power of the Congress to conduct 

investigations is inherent in the legislative process.”). When 

these constitutional components collide, which should prevail? 

The Committee presses us to cast the crucial vote in this contest 

of competing prerogatives but “much of the allocation of 

powers is best left to political struggle and compromise.” 

Barnes v. Kline, 759 F.2d 21, 55 (D.C. Cir. 1984) (Bork, J., 

dissenting), vacated sub nom. Burke v. Barnes, 479 U.S. 361 

(1987). And, indeed, although informational disputes between 

the Legislative and Executive Branches have existed since 

Washington’s administration, see Nixon v. Sirica, 487 F.2d 

700, 778–79 (D.C. Cir. 1973) (en banc) (Wilkey, J., dissenting) 

(historical background), the Judiciary was not asked to settle

them until the Watergate years. In past political battles, 

executive officials—including sitting and former presidents—

often acquiesced, voluntarily providing testimony and 

documents. See, e.g., Sitting Presidents & Vice Presidents Who 

Have Testified Before Congressional Committees, U.S.

SENATE (2017), https://perma.cc/J2HH-X5WG. Other times, 

they did not. But in no instance were such disputes resolved by 

federal judges. Now, breakdowns in the time-honored process 

of negotiation and accommodation have embroiled this court 

in a fight we are ill-suited to referee.
11

Although the Committee’s lack of standing eliminates the 

need to reach the merits, I also write separately to highlight the 

narrower defense against congressional overreach provided by

well-settled privileges. From the outset, the Executive Branch 

has taken the position “that Mr. McGahn is absolutely immune 

from compelled congressional testimony.” Letter from Pat A. 

Cipollone, Counsel to the President, to Jerrold Nadler, 

Chairman, Comm. on the Judiciary, U.S. House of 

Representatives 1 (May 20, 2019).5 This categorical approach

erects a barrier that, although supported by many of the same 

principles, is purportedly “distinct from, and broader than, 

executive privilege.” Testimonial Immunity Before Cong. of the 

Former Counsel to the President, 43 Op. O.L.C. (May 20, 

2019), 2019 WL 2315338, at *2 [hereinafter Testimonial 

Immunity]. In other words, absolute immunity means that 

McGahn need not honor the subpoena at all. But unlike an 

assertion of privilege to specific questions, which encourages

the parties to use accommodation and other political tools, 

McGahn’s absolutist stance has prevented their use and 

prematurely involved the courts. Indeed, had the Committee 

prevailed here—assuming, of course, standing, jurisdiction and 

a viable cause of action—the dispute would still be far from 

over. As McGahn’s counsel recognized, available privileges 

would limit the scope of the Committee’s questioning.6 And 

5

 The Trump administration is not the first to raise this 

argument. See, e.g., Immunity of the Assistant to the President & Dir. 

of the Office of Political Strategy & Outreach from Cong. Subpoena, 

38 Op. O.L.C. (July 15, 2014), 2014 WL 10788678 (Obama);

Immunity of the Former Counsel to the President from Compelled 

Cong. Testimony, 31 Op. O.L.C. 191 (2007) (George W. Bush);

Assertion of Exec. Privilege with Respect to Clemency Decision, 23 

Op. O.L.C. 1 (1999) (Clinton).

6

 “[I]f Mr. McGahn were to have to testify . . . he would 

have . . . not just attorney-client, but a bunch of executive privilegebased objections to the concrete questions.” Oral Arg. Tr. 37:8–12.
12

the Committee readily concedes that, should privilege 

negotiations reach an impasse, it “would go back to the District 

Court for a resolution of those” issues. Oral Arg. Tr. 60:25–

61:1. Resolving matters following specific assertions of 

privilege could have therefore delayed judicial involvement 

and decreased the need for repetitive litigation, while at the 

same time protecting the President’s interests. Because 

absolute immunity is its primary position, however, the 

Executive Branch has yet to make a formal assertion of 

privilege in this case.

Absolute immunity, which provides more expansive 

protection than executive privilege, is nonetheless predicated 

on substantially the same rationales. For example, the need to 

protect against interfering with “the President’s access 

to . . . sound and candid advice,” Appellant’s Br. 53, is likewise 

reflected in the presidential communications privilege, which 

is recognized “to encourage the candid advice necessary for 

effective decisionmaking,” Dellums v. Powell, 561 F.2d 242, 

246 (D.C. Cir. 1977). Each also preserves the autonomy of 

presidential decisionmaking. See In re Sealed Case, 121 F.3d 

729, 745 (D.C. Cir. 1997) (executive privileges are “designed 

to protect executive branch decisionmaking”); Appellant’s Br. 

52 (immunity is “necessary to preserve the autonomy and 

confidentiality of presidential decisionmaking”). According to 

McGahn, however, the assertion of executive privilege to 

specific questions neither lowers the risk of inadvertent 

disclosure nor avoids the potential chill of candid advice and, 

perhaps more fundamentally, may cultivate the appearance of 

executive subordination if a politically motivated Congress

summons executive officials before it for intrusive questioning. 

See Appellant’s Br. 52, 55–56.

I believe McGahn’s claimed immunity rests on somewhat 

shaky legal ground. Although presidents have invoked 
13

executive privilege to withhold information from the Congress 

since the early days of the republic, see generally History of 

Refusals by Exec. Branch Officials to Provide Info. Demanded 

by Cong., 6 Op. O.L.C. 751 (1982),7the legal basis of absolute 

immunity was “first described” in a 1971 memorandum by 

then-Assistant Attorney General William H. Rehnquist, see 

Testimonial Immunity, 2019 WL 2315338, at *1. Extrapolating 

from historical practice and acknowledging that his 

generalizations were “necessarily tentative and sketchy,” Mr. 

Rehnquist concluded that the President’s immediate 

advisors “should be deemed absolutely immune from 

testimonial compulsion by a congressional committee.”

Memorandum from William H. Rehnquist, Assistant Attorney 

Gen., Office of Legal Counsel, for John D. Ehrlichman, 

Assistant to the President for Domestic Affairs, Re: Power of 

Congressional Committee to Compel Appearance or 

Testimony of “White House Staff” 7 (Feb. 5, 1971) [hereinafter 

Rehnquist Memorandum]. Subsequent OLC opinions are 

largely derivative and identify no caselaw recognizing the 

existence of such immunity from congressional process.

The Judiciary has, however, addressed executive 

immunity and privilege in other contexts. In United States v. 

Burr, 25 F. Cas. 30 (No. 14692D) (C.C.D. Va. 1807), “Chief 

Justice Marshall squarely ruled that a subpoena may be 

directed to the President,” Sirica, 487 F.2d at 709 (en banc) (per 

curiam). Granted, judicial subpoenas in criminal cases reflect

unique interests—the defendant’s constitutional protections 

and the “‘longstanding principle’ that the grand jury ‘has a right 

7

 Some legal minds have argued that these refusals to comply 

with congressional demands for information rested “squarely on the 

ground of separation of powers,” Sirica, 487 F.2d at 770 (en banc)

(Wilkey, J., dissenting); others maintain that many did not in fact 

involve “a claim of constitutional right,” see Archibald Cox, 

Executive Privilege, 122 U. PA. L. REV. 1383, 1397 (1974).
14

to every man’s evidence’”—that are not implicated by 

congressional process. Id. at 712 (quoting Branzburg v. Hayes, 

408 U.S. 665, 688 (1972)). But that distinction does not suggest

congressional subpoenas are less deserving of compliance. 

Indeed, “[a] subpoena has never been treated as an invitation to 

a game of hare and hounds;” otherwise, “the great power of 

testimonial compulsion, so necessary to the effective 

functioning of courts and legislatures, would be a nullity.” 

United States v. Bryan, 339 U.S. 323, 331 (1950) (emphasis 

added). And, although “the singular importance of the 

President’s duties,” Nixon v. Fitzgerald, 457 U.S. 731, 751 

(1982), entitles him “to absolute immunity from damages 

liability predicated on his official acts,” id. at 749, the same 

consideration—“diversion of his energies by concern with 

private lawsuits would raise unique risks to the effective 

functioning of government,” id. at 751—does not completely

shield a sitting President from the reach of the Judiciary. In 

civil litigation predicated on his unofficial acts, the President 

cannot claim temporary immunity (i.e., a stay of proceedings 

until after he leaves office). Clinton v. Jones, 520 U.S. 681, 692

(1997). Moreover, notwithstanding the Supreme Court in 

Clinton did not address the court’s power to compel the 

President’s attendance, it “assume[d] that the testimony of the 

President, both for discovery and for use at trial, may be taken 

at the White House at a time that will accommodate his busy 

schedule.” Id. at 691–92. The risk of Executive Branch 

impediment was therefore mitigated by the President’s ability 

to remain at the seat of power.8

8

 “Although Presidents have responded to written 

interrogatories, given depositions, and provided videotaped trial 

testimony, no sitting President has ever testified, or been ordered to 

testify, in open court.” Clinton, 520 U.S. at 692 n.14 (citation 

omitted).
15

More fundamentally, even if the President himself is 

absolutely immune from compelled congressional process, it 

does not necessarily follow that his close advisors are too. In 

fact, although the Speech or Debate Clause9derivatively 

applies to Congressmembers’ “alter egos”—that is, their aides, 

see Gravel v. United States, 408 U.S. 606, 617 (1972)—the 

Supreme Court has not endorsed analogous extensions of 

presidential immunity. In Butz v. Economou, 438 U.S. 478, 507 

(1978), the Court held that Cabinet members were entitled to 

only qualified immunity in a civil damages suit. And although 

certain federal officials—the President, legislators, judges and 

federal prosecutors—can invoke absolute immunity for actions 

taken pursuant to the unique functions of their respective 

offices, “[t]he undifferentiated extension of absolute 

‘derivative’ immunity to the President’s aides . . . could not be 

reconciled with the ‘functional’ approach that has 

characterized the immunity decisions of” the Supreme Court. 

Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982). Accordingly, 

former senior White House aides could not claim derivative 

absolute immunity, id. at 809, although the Supreme Court left 

open the possibility that absolute immunity may be justified for 

“aides entrusted with discretionary authority in such sensitive 

areas as national security or foreign policy,” id. at 812.10

Rather, “qualified immunity adequately protects those 

9

 Senators and Representatives “shall in all Cases, except 

Treason, Felony and Breach of the Peace, be privileged from Arrest 

during their Attendance at the Session of their respective Houses, and 

in going to and returning from the same; and for any Speech or 

Debate in either House, they shall not be questioned in any other 

Place.” U.S. CONST. art. I, § 6, cl. 1.

10

 Subsequent cases, however, declined to recognize national 

security as a basis for functional absolute immunity of the Attorney 

General, see Mitchell v. Forsyth, 472 U.S. 511, 520 (1985), and the 

National Security Advisor, see Halperin v. Kissinger, 807 F.2d 180, 

194 (Scalia, Circuit Justice, D.C. Cir. 1986).
16

positions from undue interference.” Halperin v. Kissinger, 807 

F.2d 180, 194 (Scalia, Circuit Justice, D.C. Cir. 1986). Given 

that absolute immunity from personal liability is considered 

unnecessary to foster candid advice and maintain effective 

decisionmaking, it is not obvious that testimony before the 

Congress—protected by applicable privileges—would have 

such an effect.

To the contrary, it seems likely that the invocation of wellsettled privileges could adequately protect the Executive 

Branch’s undeniably critical interests. Again, the dearth of 

head-on conflicts between the President and the Congress 

requires analogy to related settings. In judicial proceedings the 

President’s executive privilege is not absolute, see Nixon, 418 

U.S. at 706 (“[N]either the doctrine of separation of powers, 

nor the need for confidentiality of high-level communications, 

without more, can sustain an absolute, unqualified Presidential 

privilege of immunity from judicial process under all 

circumstances.”), at least “[a]bsent a claim of need to protect 

military, diplomatic, or sensitive national security secrets,” 

id.11 In practice, absolute privilege would function the same as 

immunity—once either is claimed, any further inquiry is 

necessarily foreclosed. True, the necessity of protecting 

Executive decisionmaking “justif[ies] a presumptive privilege 

for Presidential communications,” id. at 708, but, critically, this 

presumption can be overcome by a satisfactory demonstration 

of specific need for the information, see Dellums, 561 F.2d at 

249. Thus, a qualified executive privilege would seem, at least 

to me, the most appropriate mechanism to govern a dispute like 

the one now before us.

11

 Nixon involved a criminal proceeding but we soon rejected a 

generalized claim of absolute executive privilege in civil litigation as 

well. See Dellums, 561 F.2d at 245–46.
17

Granted, consideration of executive privilege takes on a 

new dimension when the privilege is claimed against the 

Congress. See Nixon, 418 U.S. at 712 n.19 (“We are not here 

concerned with the balance between the President’s 

generalized interest in confidentiality and . . . congressional 

demands for information . . . .”); In re Sealed Case, 121 F.3d 

at 753 (“The President’s ability to withhold information from 

Congress implicates different constitutional considerations 

than the President’s ability to withhold evidence in judicial 

proceedings.”). So too with the attorney-client privilege, which 

McGahn could assert in response to, in all likelihood, many, “if 

not the predominance of the questions [the Committee] would 

ask him.” Oral Arg. Tr. 37:8–12. Although government 

lawyers may not rely on this privilege before a federal grand 

jury if the client communications relate to possible criminal 

violations, In re Lindsey, 158 F.3d 1263, 1274 (D.C. Cir. 1998), 

“no one can say with certainty the extent to which a privilege 

would generally protect a White House Counsel from testifying 

at a congressional hearing,” id. at 1277. Given the President’s 

weighty interest in the confidentiality of his communications, 

one concern is that the Congress, susceptible to the fruits of 

political temptation, would not proceed “with all the protection 

that a district court will be obliged to provide.” Nixon, 418 U.S. 

at 706.

The lack of clarity surrounding the exercise of privilege is 

especially acute in the shadows of an impeachment inquiry.

See, e.g., In re Lindsey, 158 F.3d at 1277 (“Impeachment 

proceedings . . . cannot be analogized to traditional legal 

processes . . . . How the policy and practice supporting the 

common law attorney-client privilege would apply in such a 

political context thus is uncertain.”). Indeed, even as early 

Presidents asserted a power to withhold information from the 

Congress, they simultaneously recognized that the balance of 

competing constitutional interests may be different when the 
18

House acts pursuant to its impeachment power. In an 1846 

message to the House of Representatives, President James K. 

Polk declined to provide requested information regarding the 

State Department’s contingent fund but acknowledged that had 

the demand been made pursuant to an impeachment inquiry, 

“the power of the House, in the pursuit of this object, would 

penetrate into the most secret recesses of the Executive 

Departments.” 2 Asher C. Hinds, Hinds’ Precedents of the 

House of Representatives of the United States § 1561 (1907). 

“It could command the attendance of any and every agent of 

the Government, and compel them . . . to testify on oath to all 

facts within their knowledge.” Id. This view of executive 

privilege stands in stark contrast to the expansive immunity

now pushed by McGahn.

12

And a qualified—rather than absolute—privilege can still 

adequately protect the undeniably important Executive Branch 

interests at stake when the Congress attempts to pry open the 

lid of presidential confidentiality. See Comm. on the Judiciary, 

U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 

102 (D.D.C. 2008) (“[A]ssert[ing] executive privilege on a 

question-by-question basis as appropriate . . . should serve as 

an effective check against public disclosure of truly privileged 

communications, thereby mitigating any adverse impact on the 

12

 In addition to abstract uncertainty, there are numerous issues 

that must be worked out on a more individualized level, such as the 

scope of the asserted privilege and whether the privilege has been 

waived, with respect to certain information. Here, the parties did not 

reach these important questions because the White House did not 

formally assert executive privilege—or any other privilege, for that 

matter—regarding the content of McGahn’s testimony. The strategic 

calculation to rely upon testimonial immunity was made despite the 

recognition that an immediate advisor like McGahn would be 

“unlikely to answer many of the [Committee’s] questions.”

Testimonial Immunity, 2019 WL 2315338, at *4.
19

quality of advice that the President receives.”). It seems 

unlikely that the risk of inadvertent disclosure will diminish the

candor with which the President’s immediate advisors offer 

counsel. Indeed, “[a]n advisor to the President has no guarantee 

of confidentiality. His advice may be disclosed by the President 

or a successor.” Dellums, 561 F.2d at 246. In other words, 

executive privilege does not exist to protect the secrecy 

interests of an individual aide; it exists to keep the President’s 

decisionmaking process running smoothly. Senior advisors 

already operate with the knowledge that their advice could be 

made public by the President. And if the President himself 

cannot rely on the supremacy of his position to postpone the 

required submission of testimony in civil litigation, see 

Clinton, 520 U.S. at 692, the imposition that a congressional 

hearing places on his advisors would presumably not be 

enough to warrant absolute privilege from process. This is 

especially true of a former advisor like McGahn, who is no 

longer “presumptively available to the President 24 hours a

day.” Rehnquist Memorandum, at 7. Further, fear that repeated 

assertions of privilege will generate “congressional and media 

condemnation” appears overblown. Testimonial Immunity, 

2019 WL 2315338, at *4. It is unclear why declining to answer 

or produce on narrower privilege grounds would provoke

stronger criticism than a refusal to show up at all. Moreover, 

the Congress itself is also subject to judgment in the court of 

public opinion. Should the Congress conduct an inquisition 

with questionable motives, such as harassment of an advisor or 

retaliation for an administration’s policy decisions, it too would

be subject to consequences, both abstract—the reputation of 

the body as a whole—and concrete—the electability of 

individual members. 

Finally, I emphasize that the applicability of specific 

privileges in this case is not yet susceptible to judicial 

resolution: none has been formally asserted and, in any event, 
20

we do not reach the merits because of the Committee’s lack of 

standing. I write separately, however, because I see qualified 

privileges as the preferred mechanism for resolving these 

interbranch informational disputes in the future. Even setting 

aside the shaky foundation of testimonial immunity, a 

categorical refusal to participate in congressional inquiries 

strikes a resounding blow to the system of compromise and 

accommodation that has governed these fights since the 

republic began. Political negotiations should be the first—and, 

it is hoped, only—recourse to resolve the competing and 

powerful interests of two coequal branches of government. 

And even if one is skeptical of this rosy projection, I believe 

the applicable privileges provide a narrower starting point and, 

should the parties reach an impasse, frame the issue in a manner 

more suitable—and, indeed, more familiar—to judicial 

resolution.
ROGERS, Circuit Judge, dissenting: Today the court 

reaches the extraordinary conclusion that the House of 

Representatives, in the exercise of its “sole Power of 

Impeachment,” U.S. CONST. art. I, § 2, cl. 5, lacks standing 

under Article III of the Constitution to seek judicial 

enforcement of a subpoena in connection with an investigation 

into whether to impeach the President. The House comes to 

the court in light of the President’s blanket and unprecedented 

order that no member of the Executive Branch shall comply 

with the subpoena duly issued by an authorized House 

Committee. Exercising jurisdiction over the Committee’s case 

is not an instance of judicial encroachment on the prerogatives 

of another Branch, because subpoena enforcement is a 

traditional and commonplace function of the federal courts. 

The court removes any incentive for the Executive Branch to 

engage in the negotiation process seeking accommodation, all 

but assures future Presidential stonewalling of Congress, and 

further impairs the House’s ability to perform its constitutional 

duties. I respectfully dissent. 

The House issued the subpoena at issue in furtherance of 

the exercise of its “sole Power of Impeachment,” U.S. CONST. 

art. I, § 2, cl. 5. The Founding Fathers understood 

impeachment to be a vital check on the Executive Branch and 

essential to the preservation of the system of democratic selfgovernance against possible overreaching by a powerful 

President. Alexander Hamilton, for instance, stated that “the 

powers relating to impeachments are . . . an essential check in 

the hands of [Congress] upon the encroachments of the 

executive.” FEDERALIST NO. 66 (Alexander Hamilton). He 

understood that the power to impeach the president was a key 

feature distinguishing the chief executive from the monarchs of 

England, see FEDERALIST NO. 69 (Alexander Hamilton). The 

power to impeach and remove the President from office 

distinguished the President from a king. Having only recently 

emerged from a violent revolution precipitated in large part by 

arbitrary and abusive action by King George III of Great 
2 

Britain, the Founders well knew the destructive power of 

unchecked and uncheckable authority in the hands of a single 

person. 

The circumstances that culminated in the impeachment 

inquiry illustrate the singular role that the impeachment power 

plays in checking possible Presidential excesses. Special 

Counsel Robert S. Mueller, III identified “multiple acts” of the 

President that were “capable of exerting undue influence over 

law enforcement investigations.” Special Counsel Robert S. 

Mueller, III, Report on the Investigation into Russian 

Interference in the 2016 Presidential Election (March 2019), 

Vol II. at 157. The Special Counsel’s Report also 

acknowledged that the Department of Justice’s understanding 

is that, as a constitutional matter, a sitting president may not be 

criminally indicted. Thus, as the Special Counsel noted, 

impeachment would be the only available mechanism through 

which to address potential Presidential misconduct identified 

in the Report. The House’s power of impeachment thus serves 

as a critical check upon the President. 

In turn, the power of inquiry, including the power to issue 

a subpoena and thereby compel a witness to appear before the 

House, is critically important to the efficacy of the 

impeachment power. The Supreme Court and this court have 

long recognized that the ability to acquire information is 

indispensable to Congress’s performance of its constitutional 

roles. The courts have consistently held that Congress has a 

constitutional right in the ability to acquire information, 

including by compulsory process. In McGrain v. Daugherty, 

273 U.S. 135 (1927), the Supreme Court stated, “We are of 

opinion that the power of inquiry — with process to enforce it 

— is an essential and appropriate auxiliary to the legislative 

function.” Id. at 174. So too the Court stated in Quinn v. United 

States, 349 U.S. 155 (1955), that “[w]ithout the power to 
3 

investigate — including of course the authority to compel 

testimony, either through its own processes or through judicial 

trial — Congress could be seriously handicapped in its efforts 

to exercise its constitutional function wisely and effectively.” 

Id. at 160–61. That right of inquiry “may be as broad, as 

searching, and as exhaustive as is necessary to make effective 

the constitutional powers of Congress.” Townsend v. United 

States, 95 F.2d 352, 361 (D.C. Cir. 1938); see also Eastland v. 

U.S. Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975); 

Barenblatt v. United States, 360 U.S. 109, 111 (1959); Watkins 

v. United States, 354 U.S. 178, 188 (1957). 

Through the subpoena at issue the House has attempted to 

exercise its “power of inquiry — with process to enforce it,” 

McGrain, 273 U.S. at 174. When the House has determined 

that the President may have committed “high Crimes and 

Misdemeanors,” U.S. CONST. art. I, § 2, cl. 5, it has a 

constitutional obligation to investigate further and to decide 

whether to exercise its tremendous power of impeachment. 

The question of whether to impeach or not is a grave and 

solemn decision upon which turns whether a duly elected 

President may be removed from office. It is not a decision 

taken lightly and, for that reason, must be made on an informed 

basis. In the context of impeachment, when the accuracy and 

thoroughness of the investigation may well determine whether 

the President remains in office, the House’s need for 

information is at its zenith. 

For the first time in our history, the President has met the 

House’s attempt to perform its constitutional responsibility 

with sweeping categorical resistance, instructing all members 

of the Executive Branch not to cooperate with the House’s 

impeachment inquiry. See Letter from Pat A. Cipollone, 

Counsel to the President, to Hon. Nancy Pelosi, Speaker of the 

House, et al., at 7 (Oct. 8, 2019). He has denounced the 
4 

impeachment investigation as without “[l]egitimate [b]asis,” 

id. at 6, and an “unconstitutional effort[] to overturn the 

democratic process,” id. at 2. Indeed, at oral argument, 

McGahn’s Department of Justice (“Department”) counsel 

acknowledged that he was unaware of any instance in history 

in which the President instructed the Executive Branch “not to 

cooperate in any form or fashion” with a Congressional 

inquiry. Oral Arg. Tr. at 21. 

The President and Congress have traditionally been able to 

resolve disputes over Congressional desire for Executive 

Branch documents and testimony. The President’s reticence to 

turn them over here through informal processes of negotiation 

and give-and-take, as repeatedly proposed by the House 

Committee, makes clear that the likelihood of the parties 

privately reaching a mutually acceptable resolution of their 

dispute over McGahn’s testimony seems remote at best. 

Consequently, the specific injury that the Committee seeks to 

vindicate before the court is limited to McGahn’s defiance of 

its subpoena by refusing to appear. 

This is the context in which the court now addresses the 

jurisdictional hurdles that the Committee must meet in 

attempting to obtain judicial enforcement of the subpoena of 

McGahn by the House of Representatives. The court has today 

concluded that the House lacks Article III standing. Under the 

Supreme Court’s analysis in Raines v. Byrd, 521 U.S. 811 

(1997), there are four factors that the court must consider in 

determining whether the House of Representatives has 

standing under Article III of the Constitution to bring the 

instant suit. As explained in Part I, infra, all four of those 

factors indicate that the House has standing here. The House 

also has a cause of action to enforce its subpoena in federal 

court, in view of the essentiality of the subpoena power to the 

House’s performance of its constitutional functions. There is a 
5 

cause of action directly under Article I of the Constitution; 

alternatively, the House may proceed under the Declaratory 

Judgment Act, as it meets the Act’s requirements, and none of 

its limitations apply. This court has subject matter jurisdiction 

over the House’s lawsuit under 28 U.S.C. § 1331, as the House 

seeks to vindicate its constitutional power, namely compulsory 

process in the exercise of its power of inquiry. Because the 

House has established that it has standing and a cause of action, 

and that there is federal subject matter jurisdiction over its 

lawsuit, the district court order enforcing the subpoena by 

directing McGahn to appear before the Committee should be 

affirmed. 

I. 

In Raines v. Byrd, 521 U.S. 811 (1997), the Supreme Court 

held that six individual Members of Congress lacked Article III 

standing to challenge the constitutionality of the Line Item 

Veto Act. Id. at 814. The Court relied on four considerations: 

(1) the individual plaintiffs alleged an institutional injury that 

was “wholly abstract and widely dispersed”; (2) plaintiffs’ 

“attempt to litigate th[eir] dispute at this time [wa]s contrary to 

historical experience”; (3) the plaintiffs “ha[d] not been 

authorized to represent their respective Houses of Congress . . 

. , and indeed both Houses actively oppose[d] their suit”; and 

(4) dismissing the lawsuit “neither deprive[d] Members of 

Congress of an adequate remedy . . . , nor foreclose[d] the Act 

from constitutional challenge.” Id. at 829. Notably, the Court 

added that “[w]hether the case would be different if any of 

these circumstances were different we need not now decide.” 

Id. Those factors that the Supreme Court relied on are 

applicable to the instant case, yet each factor that in Raines 

counselled against the existence of standing is absent here. 

Raines thus does not control the outcome of this case. 
6 

First, the lawsuit in Raines was brought by plaintiffs who 

had alleged a “wholly abstract and widely dispersed” 

institutional injury. Id. Here, the injury is neither abstract nor 

widely dispersed. In Raines, the plaintiffs’ complaint 

amounted to no more than that the Line Item Veto Act had 

altered the balance of power between the President and 

Congress in favor of the former. See Raines, 521 U.S. at 825–

26. Here, the House has a long-recognized right, based on the 

constitution, to have McGahn appear before it. In defying the 

Committee’s subpoena, McGahn has flaunted the House’s 

“power of inquiry” and “process to enforce it,” McGrain, 273 

U.S. at 174. That injury is specific and acute, not “wholly 

abstract.” Nor is the injury widely dispersed. By virtue of 

McGahn’s defiance of the subpoena, the full House has 

incurred an institutional injury. And in view of House 

authorization of the instant lawsuit, the House is the plaintiff 

seeking to remedy that institutional injury. Thus, the very 

entity that has suffered the injury is suing to vindicate the 

injury. As such, the Committee’s injury is not “widely 

dispersed.” The court is in agreement that Raines is not 

dispositive on this issue. See Op. at 35 (Griffith, J.); Op. at 5–

7 (Henderson, J.). 

The suggestion that Article III standing is satisfied only 

when an individual right is at stake, Op. at 8–9 (Griffith, J.), is 

foreclosed by Raines itself. There the Court stated that “the 

institutional injury [plaintiffs] allege is wholly abstract and 

widely dispersed.” Raines, 521 U.S. at 829. By identifying 

those defects with the alleged institutional injury, the Supreme 

Court left open the possibility that some institutional injuries 

would be sufficient to confer a legislative body standing. If the 

Court in Raines had been of the view that no institutional injury 

to a legislative body could be adequate to confer standing, it 

would not have bothered to identify problems with the specific 

institutional injury alleged. The Court would have stated that 
7 

the alleged injury was an institutional one incurred by a 

legislative body and left it at that. Furthermore, in Arizona 

State Legislature v. Arizona Independent Redistricting 

Commission, 135 S. Ct. 2652 (2015), the Supreme Court 

distinguished Raines and held that the Arizona State 

Legislature qua legislature had incurred an institutional injury 

in its loss of redistricting authority where the authority was 

vested, by a ballot initiative, in an independent entity. The 

Court’s holding thus precludes the view that there is standing 

only when an individual right is implicated. See also SixtySeventh Minn. State Senate v. Beens, 406 U.S. 187 (1972). 

Second, the Raines plaintiffs’ attempt to litigate the 

dispute was “contrary to historical experience.” Raines, 521 

U.S. at 829. History is different here than it was in Raines, for 

the relevant history is Presidential cooperation with the 

legislative Branch exercising its constitutional responsibilities 

with respect to impeachment. Although there have been 

relatively few instances of interbranch subpoena-enforcement 

litigation in the federal courts, the history of Presidential 

cooperation means that there have been few occasions 

necessitating resort to the courts. The degree of Presidential 

interference with the constitutional responsibilities of 

Congress, giving rise to the instant lawsuit, see, e.g., Oral Arg. 

Tr. at 21, is a dramatic break with past Presidential practice of 

acknowledging the gravity of Congress’s constitutional 

responsibilities, including impeachment, and responding with 

requested information. Although there may have been isolated 

instances of Presidential nondisclosure of requested Executive 

Branch documents or testimony, this broad and indiscriminate 

defiance flouts the “respect due to coequal and independent 

departments” of the federal government, Marshall Field & Co. 

v. Clark, 143 U.S. 649, 672 (1892), and “disregards that 

coequal position in our system of the three departments of 

government,” id. at 676, and the “reciprocity” each branch 
8 

owes to each other, Youngstown Sheet & Tube Co. v. Sawyer, 

343 U.S. 579, 635 (1952) (Jackson, J., concurring). Indeed, the 

fact that the Supreme Court has not squarely addressed the 

question presented here is unsurprising, given the long history 

of Presidential cooperation with congressional investigations. 

Furthermore, federal courts have traditionally decided 

cases such as this one, given that the courts have entertained 

Congressional subpoena-enforcement lawsuits against 

Executive Branch officials since 1974. This court, sitting en 

banc in Senate Select Committee on Presidential Campaign 

Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974), 

unanimously enforced a Senate Committee subpoena duces 

tecum served on the President for production of the “Nixon 

tapes.” The court did not independently analyze jurisdiction, 

including Article III standing, observing without critique that 

the district court had addressed and rejected the President’s 

contention that the lawsuit was non-justiciable because it was 

an interbranch conflict. See id. at 728. “Finding the reasoning 

of this court in Nixon v. Sirica, which concerned a grand jury 

subpoena, ‘equally applicable to the subpoena of a 

congressional committee,’ the [d]istrict [c]ourt held that, under 

that case and the relevant Supreme Court precedent, the issues 

presented to it were justiciable.” Id. (emphasis added) (quoting 

Senate Select Comm. on Presidential Campaign Activities v. 

Nixon, 370 F. Supp. 521 (D.D.C. 1974)). This court was 

satisfied with that analysis and so proceeded to address the 

merits of the case. See id. at 728–29. 

This court revisited a similar issue in United States v. 

AT&T, 551 F.2d 384 (D.C. Cir. 1976). There, the court 

considered a suit brought by the Executive Branch to enjoin 

AT&T from complying with a congressional subpoena on 

national security grounds. The President had directed AT&T, 

“as an agent of the United States, to respectfully decline to 
9 

comply with the Committee subpoena,” id. at 387, and the 

House of Representatives had intervened as a defendant to 

represent its interest in AT&T’s compliance with the subpoena. 

As such, the court characterized the case as a “portentous clash 

between the executive and legislative branches,” id. at 385, and 

undertook a more extensive jurisdictional analysis than in 

Senate Select Committee. The court reasoned that “Senate 

Select Committee establishes, at a minimum, that the mere fact 

that there is a conflict between the legislative and executive 

Branches over a congressional subpoena does not preclude 

judicial resolution of the conflict,” id. at 390, and held that “[i]t 

is clear that the House as a whole has standing to assert its 

investigatory power, id. at 391. 

More recently, courts have likewise held that the federal 

courts have jurisdiction to decide a Congressional subpoenaenforcement action against a former White House Counsel and 

one of the highest-ranking members of the Executive Branch, 

the Attorney General. See Comm. on the Judiciary, U.S. House 

of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); 

Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 

2d 1 (D.D.C. 2013). AT&T and Senate Select Committee are 

our precedent for the proposition that the Committee has 

standing here and demonstrate, as Raines requires, that these 

interbranch disputes have been amenable to judicial resolution. 

The Supreme Court has acknowledged that historical practice 

is constitutionally significant even when it does not extend as 

far back into the past as the Founding. In NLRB v. Noel 

Canning, 134 S. Ct. 2550 (2014), the Supreme Court was asked 

to interpret the Recess Appointments Clause of the 

Constitution. The Court noted that “in interpreting the Clause, 

we put significant weight upon historical practice,” and stated 

that “precedent[] show[s] that this Court has treated practice as 

an important interpretive factor even when the nature or 

longevity of that practice is subject to dispute, and even when 
10 

that practice began after the founding era.” Id. at 2559–60; see 

also id. at 2560 (collecting cases). 

Third, in Raines the plaintiff Members of Congress had 

“not been authorized to represent their respective Houses of 

Congress in this action, and indeed both Houses actively 

oppose[d] their suit.” Raines, 521 U.S. at 829. Not so here. 

The Committee’s lawsuit was authorized by the House of 

Representatives in H. Res. 430, 116th Cong. (2019). 

Subsequent Supreme Court treatment of Raines has reaffirmed 

that the key feature of that case, which was fatal to the 

plaintiffs’ standing, was that there was a mismatch between the 

individual legislators filing suit and the institutional injury, to 

the entire Congress, that they sought to vindicate. 

In Arizona State Legislature, 135 S. Ct. 2652, the Supreme 

Court rejected the argument that Raines stood for the 

proposition that the Arizona State Legislature lacked standing 

and characterized Raines as “holding specifically and only that 

‘individual members of Congress [lack] Article III standing.’” 

Id. at 2664 (alteration in original) (quoting Raines, 521 U.S. at 

813–14). The plaintiff in Arizona State Legislature had 

standing and the plaintiffs in Raines did not, the Court 

explained, because the former, but not the latter, was “an 

institutional plaintiff asserting an institutional injury.” Id. 

“That ‘different . . . circumstanc[e]’ was not sub judice in 

Raines.” Id. (alterations in original) (citation omitted) (quoting 

Raines, 521 U.S. at 830). 

Also, in Virginia House of Delegates v. Bethune-Hill, 139 

S. Ct. 1945 (2019), the Supreme Court relied on Raines in 

deciding that a single House of a bicameral state legislature did 

not have standing to appeal judicial invalidation of a state 

redistricting plan when the state constitution vested that 

authority in the General Assembly, of which the House of 
11 

Delegates was only a part. Although the outcome in Virginia 

House of Delegates differed from that in Arizona State 

Legislature, it rested on the same understanding of Raines. 

Citing Raines, the Court reasoned that “[j]ust as individual 

members lack standing to assert the institutional interests of a 

legislature, a single House of a bicameral legislature lacks 

capacity to assert interests belonging to the legislature as a 

whole.” Id. at 1953–54 (citation omitted). In Virginia House 

of Delegates, the Court distinguished Arizona State Legislature

on the grounds that in the latter, “there was no mismatch 

between the body seeking to litigate and the body to which the 

relevant constitutional provision allegedly assigned exclusive 

redistricting authority.” Id. at 1954. 

Thus, the Supreme Court in both Arizona State Legislature

and Virginia House of Delegates considered Raines to stand for 

the proposition that although a legislative institution may 

properly assert an institutional injury, an individual 

unauthorized Member of that institution may not. See Virginia 

House of Delegates, 139 S. Ct. at 1953-54. There being no 

mismatch here, the central obstacle to the plaintiffs’ standing 

in Raines is not present. And while the Supreme Court has 

twice endorsed this narrower understanding of Raines, namely 

that the chief defect in plaintiffs’ case was their lack of 

authorization, it has never relied upon Raines for the broad 

propositions advanced by McGahn in the instant case. So too 

on three other occasions, this court has held that unauthorized 

legislators lack standing to vindicate injuries to the legislative 

bodies of which they are a part. Blumenthal v. Trump, No. 19-

5237 (slip op.) (D.C. Cir. Feb. 7, 2020), Campbell v. Clinton, 

203 F.3d 19 (D.C. Cir. 2000), and Chenoweth v. Clinton, 181 

F.3d 112 (D.C. Cir. 1999), all involved individual unauthorized 

legislators’ attempts to sue the President. The court 

appropriately relied on Raines to reject standing in all three of 

those cases. Because the instant lawsuit has been expressly 
12 

authorized by the full House of Representatives, neither those 

three cases nor Raines stands for the proposition that the 

Committee lacks Article III standing. 

Fourth, declining to exercise jurisdiction over the 

plaintiffs’ lawsuit in Raines did not deprive individual 

Members of an “adequate remedy” or “foreclose[] the [Line 

Item Veto] Act from constitutional challenge.” Raines, 521 

U.S. at 829. Significantly, on two occasions, the Department’s 

Office of Legal Counsel (“OLC”) has concluded that there is 

no other adequate remedy for the House’s injury. A 1984 OLC 

Opinion authored by Acting Assistant Attorney General 

Theodore Olson analyzed the methods available to Congress to 

enforce a subpoena and concluded that there was no 

constitutionally viable alternative to a civil subpoenaenforcement action in federal court, that is, the very mechanism 

that the House pursues here. See Prosecution for Contempt of 

Congress of an Executive Branch Official Who Has Asserted a 

Claim of Executive Privilege, 8 Op. O.L.C. 101 (1984) 

(“Olson”). As OLC explained, Congress has two potential 

alternatives to a civil enforcement action: First, it can hold a 

recalcitrant subpoena recipient in contempt and refer the 

citation to the Department of Justice for prosecution under the 

criminal contempt of Congress statute, 2 U.S.C. 192. 

Conviction under the statute can result in imprisonment of up 

to one year and a fine of up to $1,000. See id. Second, 

Congress can detain a subpoena recipient, pursuant to its 

inherent contempt authority. See generally Jurney v. 

MacCracken, 294 U.S. 125 (1935). Neither option is 

practicable. First, the criminal contempt statute is not available 

to vindicate the House’s injury. The Olson Opinion concluded 

that the “contempt of Congress statute does not require and 

could not constitutionally require a prosecution” of an 

Executive Branch official who defies a Congressional 

subpoena on the basis of Executive privilege “or even . . . a 
13 

referral to a grand jury of the facts relating to the alleged 

contempt.” Olson, 8 Op. O.L.C. at 142. Because a President 

may sometimes be required, in order to faithfully perform his 

constitutional duties, to withhold certain requested information 

from Congress, prosecuting a subordinate for “act[ing] to aid 

the President’s performance of [that] duty would be . . . 

inconsistent with the Constitution.” Id. 

Two years later, Assistant Attorney General Charles 

Cooper reaffirmed “that the contempt of Congress statute 

simply was not intended to apply and could not constitutionally 

be applied to an Executive Branch official who asserts the 

President’s claim of executive privilege.” Response to 

Congressional Requests for Information Regarding Decisions 

Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 

83 (1986) (“Cooper”). Both OLC Opinions make clear that the 

Department of Justice understands itself not to be required to 

prosecute an Executive Branch official who has declined, on 

the basis of Executive privilege, to comply with a 

Congressional subpoena. Therefore, citing McGahn for 

contempt and referring the citation to the Department of Justice 

for prosecution would be ineffective because the Department 

would decline to pursue the prosecution. Indeed, it strains 

credulity to suppose that the President would direct McGahn 

not to comply with the subpoena at issue and subsequently 

countenance a criminal prosecution of his former White House 

Counsel for failing to comply with the subpoena. 

The second alternative, detaining McGahn pursuant to the 

House’s inherent contempt authority, is similarly 

impracticable. Understandably desiring not to risk physical 

combat with the Executive Branch, cf. Oral Arg. Tr. at 53–54, 

In re App. of Comm. on Judiciary, U.S. House of 

Representatives, for an Order Authorizing Release of Certain 

Grand Jury Materials, No. 19-5288 (D.C. Cir. Jan. 3, 2020),
14 

the House has declined to use that authority to detain an 

Executive official for nearly 100 years. OLC has concluded 

that Congress’s exercise of its inherent contempt authority to 

arrest an Executive official is not viable, although for different 

reasons. The OLC has focused not on the unseemliness and 

undesirableness of physical confrontation between the 

Branches but rather on the concern that subjecting close 

presidential advisors to Congressional detention would unduly 

chill such advisors in the exercise of their duties in service of 

the President’s performance of his constitutional functions. 

See Olson, 8 Op. O.L.C. at 140. OLC has twice suggested that 

“the same reasoning that suggests that the [criminal contempt] 

statute could not constitutionally be applied against a 

Presidential assertion of privilege applies to congress’ inherent 

contempt powers as well.” Id. at 140 n.42; Cooper, 10 Op. 

O.L.C. at 86. Separate from the legal question of whether such 

detention would comport with the Constitution, Cooper also 

noted the practical unlikelihood that Congress would pursue 

that relief, noting that Congress had not used its inherent 

contempt authority since 1917 and that “it seems most unlikely 

that Congress would dispatch the Sergeant-at-Arms to arrest 

and imprison an Executive Branch official who claimed 

executive privilege.” Cooper, 10 Op. O.L.C. at 86. It suffices 

here to note that the prospect that the House will direct its 

Sergeant at Arms to arrest McGahn is vanishingly slim, so long 

as a more peaceable judicial alternative remains available. 

Significantly, in Raines, the Supreme Court stated that if 

any of the four considerations it relied upon had been different, 

the outcome of the standing analysis might have been different. 

See Raines, 521 U.S. at 829. Here, not just one but all four 

factors are different than they were in Raines. Consequently, 

Raines does not support, much less dictate, that the Committee 

lacks standing here. 
15 

II. 

The court undoubtedly must proceed with caution given 

the separation of powers principles implicated when a House 

of Congress files a lawsuit against a former close presidential 

advisor. Courts should resolve such disputes only as a “last 

resort,” Raines, 521 U.S. at 833 (Souter, J., concurring) 

(quoting Valley Forge Christian College v. Americans United 

for Separation of Church and State, Inc., 454 U.S. 464, 474 

(1982)). Here, it is appropriate for the court to exercise 

jurisdiction for two reasons. 

First, subpoena enforcement is a “familiar judicial 

exercise,” Zivotofsky ex rel. Zivotofsky v. Clinton, 556 U.S. 

189, 196 (2012), with which courts are well-acquainted, 

because judicial enforcement of a subpoena is an ordinary 

corollary to civil litigation. See, e.g., Miers 558 F. Supp. 2d 

53. The Federal Rules of Civil Procedure authorize a party to 

issue, under the auspices of the court, a subpoena ordering 

testimony, document production, or production of other 

tangible objects. See FED. R. CIV. P. 45(a). If the recipient of 

such a civil subpoena objects on the grounds that compliance 

would require the disclosure of privileged matter, then a motion 

requesting that the court quash the subpoena would be 

available. See FED. R. CIV. P. 45(e)(2). The court must quash 

or modify the subpoena if it determines that the subpoena 

“requires disclosure of privileged or other protected matter.” 

FED. R. CIV. P. 45(d)(3). If the party has no valid grounds for 

objecting, however, the court may enforce the subpoena by 

holding in contempt a person who refuses to obey it. See FED.

R. CIV. P. 45(g). Thus, the precise function that the Committee 

asks the court to perform — determining whether McGahn has 

a valid excuse for failing to appear before the Committee and 

compelling his compliance if he does not — is a commonplace 

feature of civil litigation in federal court. In exercising 
16 

jurisdiction over the Committee’s subpoena-enforcement suit, 

the court does not take sides in an interbranch dispute or 

involve the court in any political dispute, because the court 

need only to address whether McGahn must appear before the 

Committee in response to a valid subpoena; what he does at 

that point remains to be seen. Although this case comes to us 

against the factual background of a bitter political battle over 

presidential impeachment, that does not render the case itself 

non-justiciable as “political,” for “courts cannot avoid their 

responsibility merely ‘because the issues have political 

implications.’” Zivotofsky, 566 U.S. at 196 (quoting INS v. 

Chadha, 462 U.S. 919, 943 (1983)). 

Furthermore, what the Committee seeks here is quite 

narrow: a declaration that McGahn is required by law to appear 

before it. Neither the subpoena itself nor the district court’s 

order that he comply with that subpoena requires him to answer 

any questions before the Committee. “[T]he question of 

whether or not the recipient of a subpoena has to disclose, or 

may withhold, the particular information that the subpoena 

requests is entirely distinct from the question of whether the 

recipient of a subpoena has the legally enforceable duty to 

perform in response to a subpoena at all.” Dist. Ct. Op. at 31. 

The district court explained that it reached only the latter 

question: rejecting the claim of absolute immunity, “as far as 

the duty to appear is concerned, this Court holds that Executive 

branch officials are not absolutely immune from compulsory 

congressional process.” Id. “[W]hether or not the law requires 

the recalcitrant official to release the testimonial information 

that the congressional committee requests is a separate 

question, and one that will depend in large part on whether the 

requested information is itself subject to withholding consistent 

with the law on the basis of a recognized privilege.” Id. 
17 

Consequently, compliance with the subpoena, and with the 

district court’s order, requires only that McGahn appear before 

the Committee so that it may ask him questions. Although the 

applicability of any given privilege in response to any given 

question is beyond the scope of the instant case, at least in its 

present posture, it is notable both that McGahn has testified 

before a grand jury concerning at least some of the matters that 

are the subject of the subpoena and that McGahn potentially 

has at his disposal various reasons to decline to answer a 

question, see Op. at 16–19 (Henderson, J.). Given McGahn’s 

role as a close presidential advisor, it is plausible that he could 

properly assert the executive privilege, state secrets privilege, 

or attorney-client privilege in response to at least some of the 

Committee’s questions. Although the President has claimed 

that McGahn is absolutely immune from compulsory 

Congressional process itself and directed him not to comply 

with the subpoena, there has been no formal assertion of 

executive privilege. Potentially available privileges are 

powerful protections of the President’s interest in Executive 

Branch confidentiality, and they remain unaffected by an order 

compelling McGahn to appear before the Committee. 

Second, McGahn’s suggestion that there are alternative 

remedies available to Congress flies in the face of OLC’s 

opinions that these are impracticable. Practically speaking, 

based on the current record, Congress will obtain McGahn’s 

appearance by proceeding in court, or not at all. One of my 

colleagues points to use of the contempt power, withholding 

appropriations, “harness[ing] public opinion,” “delay[ing] or 

derail[ing] the President’s legislative agenda,” and 

impeachment. Op. at 13 (Griffith, J.). Some of these remedies 

cannot be undertaken by a single House of Congress, and in 

any event, OLC did not consider them possible tools for the 

enforcement of a Congressional subpoena. Further, OLC has 

opined that the criminal contempt statute does not apply to 
18 

Executive Branch officials asserting a claim of Executive 

privilege, Olson, 8 Op. O.L.C. at 142, and so it is extremely 

likely that the Department of Justice would refuse to prosecute 

McGahn were he cited for contempt. Similarly, although the 

House could direct its Sergeant at Arms to arrest and detain 

McGahn until he complies with the subpoena, the House has 

reasonably exhibited its desire not to engage in a personal arrest 

of, or physical confrontation with, an Executive Branch official 

when judicial process is available. The infrequency with which 

Congress has detained an Executive Branch official —twice in 

the country’s history, and not since 1916, see Marshall v. 

Gordon, 243 U.S. 521 (1917) — attests to the impracticability 

of that remedy. 

OLC has also drawn the reasonable inference that, lacking 

any other effective way to enforce its subpoena, a House of 

Congress may bring a civil subpoena-enforcement action in 

federal court. Congress has a “legitimate and powerful 

interest” in obtaining information necessary to the performance 

of its constitutional responsibilities, and Congress could 

“vindicate its asserted right to obtain any documents by a civil 

action for enforcement of a congressional subpoena,” in lieu of 

a criminal contempt citation or exercise of its inherent 

contempt authority. Olson, 8 Op. O.L.C. at 137; Cooper, 10 

Op. O.L.C. at 83 (“a civil suit seeking declaratory enforcement 

of the subpoena” is one of the three possible options available 

for Congressional subpoena enforcement). Analyzing Senate 

Select Committee, among other precedent, OLC concluded that 

“although the civil enforcement route has not been tried by the 

House, it would appear to be a viable option.” Id. at 88. So, in 

acknowledgement of the impracticability of alternatives, OLC 

has concluded that Congress may file a subpoena-enforcement 

action in federal court. The majority’s rejection of that 

conclusion leaves the House unable to enforce its subpoena, 
19 

dramatically undermining its ability to fulfill its constitutional 

obligations now and going forward. 

III. 

 

The interbranch nature of this lawsuit requires the court to 

carefully review the separation of powers considerations 

associated with exercising jurisdiction over this case. “Raines 

. . . may . . . require us to merge our separation of powers and 

standing analyses.” Chenoweth, 181 F.3d at 116. Yet 

McGahn’s various arguments that proper respect for the 

separation of powers dictates that the Committee lacks standing 

are unpersuasive, as are those of my colleague, see Op. at 7–9 

(Henderson, J.), inasmuch as the circuit courts provide a fitting 

place to offer analyses, ultimately for the Supreme Court’s 

review. 

First, McGahn argues that deciding this lawsuit would 

constitute a Congressional arrogation of power, providing it 

another tool to achieve victory in an interbranch struggle with 

the Executive. In his view, Congress already has several tools 

at its disposal in such conflicts, and it disrupts the delicate 

balance between Congress and the Executive to afford the 

former another tool. These tools are impracticable here, as 

OLC has twice explained in formal Opinions. Further, the 

suggestion that a civil subpoena-enforcement suit in federal 

court is a “new” weapon in Congress’s arsenal is unwarranted. 

Federal courts have consistently permitted Congress to bring 

civil subpoena-enforcement actions, going back to 1974. 

McGahn can point to no federal court that has accepted the 

argument that Congress lacks standing to file a subpoenaenforcement action in federal court against an Executive 

Branch official; to the contrary, every court to have taken up 

the question has determined that there is standing in such a 

case. Thus, the better understanding is that the current balance 
20 

of power between the two political Branches includes 

Congress’s power to vindicate in federal court its constitutional 

right to compulsory process. So understood, what would 

disrupt the present balance of power is not a holding that such 

lawsuits are permissible but the decision that they are not. On 

the one hand, it is true that the judiciary can disrupt the delicate 

balance of powers between the Branches when it intervenes in 

a dispute in which it ought not. On the other hand, it is also 

true that the judiciary can upset that careful equilibrium when 

it dismisses a suit that it ought to decide. In precluding 

Congress’s resort to the courts to enforce a subpoena, the court 

encourages increased Presidential non-cooperation with 

Congressional subpoenas and thereby substantially undermines 

the ability of Congress to acquire information from the 

Executive Branch necessary to the performance of its 

constitutional responsibilities. That outcome will have broad 

disruptive consequences for relations between Congress and 

the President going forward and substantially upset the status 

quo. 

To the extent my colleague attempts to limit the breadth of 

his decision that the House lacks Article III standing by stating 

that the outcome might change if, in the future, there were a 

statute “expressly authoriz[ing]” a Congressional subpoenaenforcement lawsuit, Op. at 28 (Griffith, J.), this remarkable 

suggestion is difficult to take seriously. The theory is that “a 

statute authorizing suit would reflect Congress’s (and perhaps 

the President’s) view that judicial resolution of interbranch 

disputes is ‘consistent with a system of separated powers,’” 

which in turn would “render suits to enforce subpoenas 

‘judicially cognizable.’” Id. at 36 (first quoting Allen v. Wright, 

468 U.S. 737, 752 (1984); then quoting Raines, 521 U.S. at 

819). Having claimed that “separation-of-powers principles 

and historical practice compel us to dismiss” the Committee’s 

suit, id. at 19, the suggestion is that the political Branches might 
21 

undo the court’s constitutional ruling that the Committee lacks 

Article III standing simply by expressing a different view of 

the separation of powers principles at stake in this case. 

Although the political Branches can and sometimes do overrule 

statutory rulings of the federal courts, courts — not Congress 

or the President — are the final arbiter of the meaning of the 

Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 

(1803); cf. City of Boerne v. Flores, 521 U.S. 507 (1997). The 

proposition that the political Branches could overrule a 

constitutional holding of the court by confirming that they have 

a different understanding of the separation of powers 

misrepresents the role of the court in that system of separated 

powers. 

Second, according to McGahn, exercising jurisdiction here 

would impede the Executive in the performance of its 

constitutional responsibilities. The traditional means of 

enforcing Congressional subpoenas, according to McGahn, has 

been by the criminal contempt statute. By attempting to 

enforce its subpoena directly in federal court and 

circumventing the Executive’s prosecutorial role, he maintains 

that the House is infringing on the Executive’s exclusive 

authority to enforce the law. Yet, as explained, OLC twice 

opined that the criminal contempt statute does not and could 

not apply to a close Presidential advisor, the Department of 

Justice would almost certainly not pursue a prosecution of 

McGahn. Indeed, OLC has concluded that prosecution of 

McGahn for his failure to comply with the House subpoena is 

not a constitutional obligation of the President but would be 

unconstitutional because it would indirectly interfere with the 

President’s performance of his duties. The argument that this 

lawsuit would effect a circumvention of the President’s 

performance of his constitutional responsibilities is thus 

misplaced. This statement is also misguided because it ignores 

the fact that enforcement of congressional subpoenas is not 
22 

committed exclusively to the Executive Branch. Congress 

itself possesses the power to enforce its subpoena itself through 

its inherent contempt power. See generally Jurney, 294 U.S. 

125. Because Congress may act unilaterally to enforce a 

subpoena, McGahn’s view that the House may not 

“circumvent” the law-enforcement duty of the Executive 

Branch is unavailing. 

Third, McGahn argues that assuming jurisdiction here 

threatens to undermine the Judiciary itself. He maintains that 

for the courts to intervene in interbranch disputes risks 

undermining public confidence in the judiciary. Judicial 

“intervention” in an “interbranch controversy” could “risk 

damaging the public confidence that is vital to the functioning 

of the Judicial Branch,” Raines, 521 U.S. at 833 (Souter, J., 

concurring), but that risk is minimal here. As discussed, the 

scope of the legal question that the Committee asks this court 

to decide is narrow and offers no occasion for the court to 

weigh in on the political dispute between the House and the 

President. This is not a case that risks “embroiling the federal 

courts in a power contest nearly at the height of its political 

tension.” Id. Although there is a dramatic backdrop of a highly 

charged political battle over the impeachment of the President, 

there is nothing political about the case itself. And speculation 

that Congress or the President might attempt to politicize a 

decision of this court does not justify a refusal to exercise 

jurisdiction over the Committee’s lawsuit, for “the judiciary 

has a responsibility to decide cases properly before it, even 

those it ‘would gladly avoid.’” Zivotofsky, 566 U.S. at 194 

(quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 

(1821)). 

Although the dispute occurs against the backdrop of a 

bitter political struggle over the impeachment of the President, 

the narrow legal question of whether McGahn must appear in 
23 

response to a valid subpoena is not a political dispute. That the 

political Branches disagree as to the proper resolution on the 

merits does not render this lawsuit a political dispute. 

Otherwise, any separation of powers cases in which the 

interests of the two political Branches are at odds, see, e.g., 

Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1 (2015), would 

have been inappropriately considered. Nor does the fact that 

the court would necessarily declare one Branch’s actions 

unlawful render this subpoena-enforcement suit nonjusticiable. Courts regularly review the actions of Congress or 

the Executive Branch for compliance with the Constitution, 

and indeed doing so is a bedrock feature of judicial review, see 

Marbury, 5 U.S. (1 Cranch) 137. Although courts should do 

so only as a “last resort,” see Raines, 521 U.S. at 833 (Souter, 

J., concurring) (quoting Valley Forge Christian College, 454 

U.S. at 474), the fact that deciding the case would require the 

court to declare unlawful the action of one Branch does not, 

standing alone, justify dismissing the Committee’s lawsuit. 

The Supreme Court has developed a robust doctrine for 

determining when a lawsuit presents a non-justiciable political 

question, designed to keep courts out of political disputes. See 

Baker v. Carr, 369 U.S. 186 (1962). Tellingly, McGahn does 

not argue that this dispute presents a political question within 

the meaning of Carr. 

During the President’s impeachment trial in the Senate, 

both sides referenced this lawsuit in connection with the second 

Article of Impeachment, alleging that the President obstructed 

Congress. Such references do not mean that the dispute is too 

political for judicial resolution. Rather, those statements 

illustrate the futility of subpoena enforcement absent judicial 

involvement and of attempting to dispose of this case in a 

manner that escapes comment by the political Branches. The 

President’s personal counsel argued to the Senate: “We’re 

acting as if the courts are an improper venue to determine 
24 

constitutional issues of this magnitude . . . . That is why we 

have courts. That is why we have a federal judiciary.” Senate 

Trial Tr., Day 2, pt.1, at 1:07:08–32, In re Impeachment of 

President Donald J. Trump (Jan. 21, 2020). The suggestion 

was thus that the President ought not be impeached for 

obstructing Congress’s investigation because the House could 

have acquired the documents and testimony it wanted by 

pursuing its case in federal court. Of course, that is not what 

McGahn has argued. More broadly, it illustrates that regardless 

of how the court decides the limited question before it, it has, 

as in any subpoena-enforcement litigation, no power to control 

comments about it. Because the political Branches will likely 

attempt to bolster their positions in the impeachment fight 

using the court’s decision, regardless of the disposition, this 

cannot be a reason for the court to abstain. Furthermore, the 

infrequency of Congressional lawsuits against the Executive in 

the aftermath of Senate Select Committee, AT&T, and Miers

belies that exercising jurisdiction here will open the courts to a 

deluge of political lawsuits between the other two Branches of 

the federal government. The paucity of such cases instead 

suggests that Congress generally has preferred not to resort to 

the courts in order to obtain information for the discharge of its 

constitutional duties. 

Finally, the view that deciding this subpoena-enforcement 

issue would “displace the long-established process by which 

the political branches resolve information disputes,” Op. at 12 

(Griffith, J.), is backward. At least since the 1970s, the political 

Branches have negotiated their informational disputes against 

the backdrop of possible resort to the courts. By foreclosing 

that possibility going forward, the court now diminishes the 

incentive the Executive Branch might have to reach an 

accommodation. Future Presidents may direct widescale noncompliance with lawful Congressional inquiries, secure in the 

knowledge that Congress can do little to enforce a subpoena 
25 

short of directing a Sergeant at Arms to physically arrest an 

Executive Branch officer. By encouraging Presidential 

stonewalling, the court effectively dismantles the 

accommodation process. 

IV. 

For the foregoing reasons, the House of Representatives 

has appropriately sought judicial enforcement of its subpoena 

of McGahn in the face of the unprecedented degree of 

Presidential non-cooperation. The House has a cause of action 

to bring a subpoena-enforcement suit in federal court seeking 

declaratory and injunctive relief requiring McGahn’s 

compliance with the subpoena, given its need for evidence if it 

is to determine whether and more precisely how to exercise its 

power of impeachment. There is a long history of parties 

resorting to the courts to enjoin unlawful, and specifically 

unconstitutional, Executive Branch action. See, e.g., Ex parte 

Young, 209 U.S. 123 (1908). That is precisely what the House 

asks the court to do here, given that the object of its lawsuit is 

to compel McGahn to appear before its duly authorized 

Committee in compliance with its subpoena, and its right to 

have him do so is rooted in Article I of the Constitution. 

Even if a cause of action directly under the Constitution 

were inadequate, the Declaratory Judgment Act provides a 

cause of action for Congress to enforce its subpoena. The Act 

requires that there be “a case of actual controversy” over which 

a federal court may exercise jurisdiction; it then authorizes the 

court to “declare the rights and other legal relations of any 

interested party seeking such declaration, whether or not 

further relief is or could be sought.” 28 U.S.C. § 2201(a). 

Those two requirements — (1) an actual case or controversy, 

and (2) federal court jurisdiction — are met here. First, this is 

an actual case or controversy, with antagonistic parties who 
26 

have separate sincere interests in the outcome. Given that the 

Committee has Article III standing, it follows that this is a 

genuine case or controversy. Second, for the reasons that 

follow, 28 U.S.C. § 1331 supplies federal jurisdiction over this 

lawsuit. The statutory requirements for proceeding under the 

Declaratory Judgment Act are thus met. 

The various limits that the Supreme Court and this court 

have placed upon lawsuits brought under the Declaratory 

Judgment Act do not preclude the House from proceeding 

under the Act. First, the Supreme Court has long stressed that 

the Declaratory Judgment Act does not provide an independent 

source of federal jurisdiction. See Skelly Oil Co. v. Phillips 

Petroleum Co., 339 U.S. 667, 671 (1950). In Skelly Oil, the 

Supreme Court stated that the Declaratory Judgment Act 

“enlarged the range of remedies available in the federal courts 

but did not extend their jurisdiction.” Id. In that case, plaintiffs 

filed suit pursuant to the Declaratory Judgment Act asking the 

federal court to interpret a contract provision, a question solely 

of state law. Id. at 672. The Court decided that the mere fact 

that the plaintiffs had proceeded under the Act did not suffice 

to render the case’s state contract law issue a federal question 

for purposes of § 1331. See id. at 671–72. The proscription of 

Skelly Oil is no obstacle to the Committee here because the 

court has jurisdiction under 28 U.S.C. § 1331. Thus, the 

Committee does not impermissibly seek to rely on the Act as a 

source of federal court jurisdiction. 

Second, the Declaratory Judgment Act “presupposes the 

existence of a judicially remediable right.” C&E Servs., Inc. v. 

D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) 

(quoting Schilling v. Rogers, 363 U.S. 666, 677 (1960)). In 

C&E Services, the issue was whether the appellant could obtain 

a declaratory judgment that, in structuring its bidding process, 

the D.C. Water & Sewer Authority had violated the federal 
27 

Service Contract Act. The court held that it could not, because 

the Service Contract Act required any dispute arising under it 

to be resolved by the Secretary of Labor; the Declaratory 

Judgment Act was not an avenue to circumvent that statutory 

requirement. See id. at 202. Citing Schilling v. Rogers, 363 

U.S. 666 (1960), the court stated that “federal courts may not 

declare a plaintiff’s rights under a federal statute that Congress 

intended to be enforced exclusively through a judicially 

unreviewable administrative hearing.” Id. at 201. That makes 

C&E Services quite different from the instant case because here 

the Committee is suing in the context of its constitutional duty 

of impeachment to enforce a right to compulsory process that 

follows from the constitution, not a statute. Furthermore, 

because the Committee does not assert a statutory right, there 

is no statutorily mandated exclusive remedial scheme for 

vindication of that right, as there was in C&E Services. 

More broadly, C&E Services and Schilling stand for the 

proposition that the Declaratory Judgment Act provides no 

substantive right that a plaintiff may seek to adjudicate in 

federal court. Rather, the Act is a vehicle for vindicating some 

separate and independent substantive right. There can be no 

dispute that such a right exists here; the Constitution itself is 

the source of the right that the Committee seeks to vindicate 

here. The Supreme Court has long recognized Congress’s 

broad power of inquiry and the concomitant right to compel 

witnesses to appear before it. See, e.g., McGrain, 273 U.S. at 

174. Thus, because the Committee here asserts a right based 

on its constitutional duty, the requirement that a Declaratory 

Judgment Act plaintiff rely on an independent substantive right 

is satisfied. 

It is true, as McGahn emphasizes, that this court once 

stated: “Nor does the Declaratory Judgment Act . . . provide a 

cause of action.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 
28 

2011) (citation omitted). That statement was made in the 

context of unique factual circumstances very different from 

those of the instant case. In Ali, the appellants were Afghan 

and Iraqi citizens detained abroad in their home countries in the 

course of American military operations in those two countries. 

See id. at 764. Their lawsuit sought, among other things, a 

declaratory judgment that their treatment in detention violated 

the law of nations, treaties to which the United States was a 

party, and the Fifth and Eighth Amendments of the U.S. 

Constitution. Id. at 764–65. In Ali, the court held that the 

Declaratory Judgment Act did not provide the plaintiffs with a 

cause of action, see id. at 778, casting doubt on the proposition 

that the Fifth and Eighth Amendments protected the plaintiffs 

at all, as they were detained outside the United States in a 

country over which the United States did not exercise “de facto 

sovereignty,” Boumediene v. Bush, 553 U.S. 723, 755 (2008). 

The court wrote that “we have . . . held that the Suspension 

Clause does not apply to Bagram detainees. [Appellants] offer 

no reason — and we see none ourselves — why the plaintiffs’ 

Fifth and Eighth Amendment claims would be any stronger 

than the Suspension Clause claims of the Bagram detainees.” 

Ali, 649 F.3d at 772. The clear implication of that reasoning is 

that the Fifth and Eighth Amendments did not apply to the Ali 

plaintiffs, and thus that no constitutional right was at stake. 

Here, no party disputes the existence of the constitutional right 

— namely, the power of inquiry — that the House seeks to 

vindicate, see McGrain, 273 U.S. at 174. Thus, the defect in 

Ali was akin to the problem of C&E Services, namely that there 

was no substantive right that plaintiffs could assert. So 

understood, Ali does not prevent the House from proceeding 

under the Declaratory Judgment Act here to vindicate an 

established constitutional right. 

Furthermore, the federal courts have subject matter 

jurisdiction over the Committee’s lawsuit pursuant to 28 
29 

U.S.C. § 1331, which grants statutory jurisdiction over “all 

civil actions arising under the Constitution . . . of the United 

States.” Because the House seeks to vindicate its right of 

compulsory process, and because that power flows from 

Article I of the Constitution, see, e.g., McGrain, 273 U.S. at 

174, the Committee’s lawsuit arises under the Constitution. 

This conclusion is bolstered by the analysis in AT&T, 551 F.2d 

at 389, which recognized that there is federal-question 

jurisdiction over such an interbranch dispute because of the 

“constitutional powers” that the dispute implicates. 

To the extent McGahn maintains that 28 U.S.C. § 1365 

amounts to an implied repeal of federal jurisdiction under 

§ 1331, that argument is unpersuasive. Section 1365, entitled 

“Senate actions,” confers on the U.S. District Court for the 

District of Columbia original jurisdiction “over any civil action 

brought by the Senate or any authorized committee or 

subcommittee . . . to enforce, to secure a declaratory judgment 

concerning the validity of, or to prevent a threatened refusal or 

failure to comply with, any subpoena or order issued by the 

Senate or committee or subcommittee.” 28 U.S.C. § 1365. By 

explicitly granting the federal courts jurisdiction over a Senate 

subpoena-enforcement action but not a House subpoenaenforcement action, McGahn suggests, Congress intended that 

the federal courts should not have jurisdiction over the latter. 

Yet this argument overlooks the context of the statute, namely 

that when Congress enacted § 1365 in 1978, § 1331 contained 

an amount-in-controversy requirement for suits against private 

parties and officials acting in the individual capacities. The 

Senate had good reason to believe that this requirement would 

be an obstacle to subpoena-enforcement suits; the district court 

in Senate Select Committee had originally dismissed the 

Senate’s lawsuit for failure to meet the requirement. See 

Senate Select Comm. on Presidential Campaign Activities v. 

Nixon, 366 F. Supp. 51, 59–61 (D.D.C. 1973). Congress 
30 

addressed this problem in 1978 with the enactment of § 1365, 

which granted federal courts subject matter jurisdiction over 

Senate subpoena-enforcement actions without regard to the 

amount in controversy. See S. Rep. No. 95-170, at 20–21 

(1978). 

Congress is free to address problems seriatim without 

thereby implicating questions not before it. See, e.g., 

Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) 

(“[R]eform may take one step at a time, addressing itself to the 

phase of the problem which seems most acute to the legislative 

mind. The legislature may select one phase of one field and 

apply a remedy there, neglecting the others.” (citation 

omitted)). With § 1365, Congress was responding to a 

particular problem: the amount in controversy requirement 

that, until it was eliminated in 1980, prevented federal courts 

from exercising jurisdiction over Congressional subpoenaenforcement suits under § 1331. Given the specific obstacle 

Congress overcame in enacting § 1365, there is no basis to 

conclude the statute bears on federal jurisdiction over House 

subpoena-enforcement actions. The inference that § 1365 has 

repealed such jurisdiction is therefore unwarranted. 

At oral argument, McGahn’s Department counsel relied on 

the legislative history of § 1365 in which two Senators stated 

§ 1365 indicates that there is no federal jurisdiction over a 

Congressional subpoena-enforcement suit unless specifically 

authorized, and that Congress wants the courts to refrain from 

exercising jurisdiction over such disputes. See Oral Arg. Tr. at 

26–27. Yet given the jealousy with which each House of 

Congress guards its constitutional prerogatives, it would be 

inappropriate in the absence of a clear statutory directive to 

conclude § 1365 also restricted the power of the House to file 

a federal subpoena-enforcement action. 
31 

V. 

Today the court does not reach the merits of McGahn’s 

absolute-immunity claim, although it concludes that McGahn 

would be unlikely to prevail, see Op. at 9–20 (Henderson, J.). 

Thus, it suffices at this point to observe that the analysis of 

United States v. Nixon, 418 U.S. 683 (1974), would appear to 

foreclose McGahn’s argument on the merits. 

Accordingly, I respectfully dissent.