# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 3, 2020 Decided February 28, 2020

No. 19

- 5331

C OMMITTEE ON THE J UDICIARY OF THE U NITED S TATES H OUSE

OF R EPRESENTATIVES
, A PPELLEE

v.

D ONALD F. M C G AHN
, II,

A PPELLANT

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 Representa tives, 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, Jo nathan 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 plaintiff

appellee.

Before: H ENDERSON
, R OGERS
, and G RIFFITH
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge G RIFFITH

.

Concurring opinion filed by Circuit Judge H ENDERSON

.

Dissenting opinion filed by Circuit Judge R OGERS

.

G RIFFITH
, Circuit Judge : The Committee on th e 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 f orbids 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 R OBERT3

S. M UELLER
, III, R EPORT O N T HE I NVESTIGATION I NTO R USSIAN
I NTERFERENCE I N T HE 2016 P RESIDENTIAL E LECTION , 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, t he 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

attem pt 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, t he 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 compe lled 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 t he White House. J.A. 631

- 32. The Committee
and the White House later reached such an accommodation regarding the subpoenaed documents

, b ut 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 tha t 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

. T he district court granted the Committee’s motion an d 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 4 1

- 45 , J.A. 8 89

- 93 ; (2) the dispute was justiciable because it raised “garden

- variety legal questions that the federal courts address routinely and are well

equipped to handle,” id. at 47

- 48, J.A. 895

- 96 ; (3) the Committee had Article III standing because it “alleged an

act ual 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. I d. at 89

- 11 8 , J.A. 93 7

- 6 6. The

court concluded that presidential aides “who have been subpoenaed for testimony by an authorized committee of Congress must appea r

. ” I d. 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

a rticles of i mpeachment 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” c ongressional subpoenas and

asserts that the se directives “were consistent with President Trump’s previous efforts to undermine United States Government investigations into foreign interference in United
States elect ions.” Id. at 6

- 8

. The Senate voted to acquit the President on February 5. See 166 C ONG

. R EC

. S936

- 39 (daily ed. February 5, 2020).

The Committee also issued a report detailing the President’s alleged wrongdoing

, s ee H.R. R EP

. N O

. 116

- 346 (2019)

, that explains the Committee’s continued interest in McGahn’s testimony. Specifically, the Committee explained
that it intend ed to use McGahn’s testimony “in a Senate trial on these articles of impeachment” and to continue investigating6

“President Trump’s obstruction of the Special Counsel.” Id. at
1 59 n.928 ; see also Committee Supp l . 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 need s 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 “ C ase” or “ C ontroversy” within the meaning of
Article III. This limitation is essential to the democratic

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

1789. U.S. C ONST

. pmbl. Compared to Congress and the
President

, unelected and unaccountable federal judges sit at the
furthe st 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.” A KHIL R EED A MAR
, A MERICA ’ S C ONSTITUTION : A B IOGRAPHY 10 (2005).
And those rules must be made by the people’s politically

account able 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 th e jurisdiction of the courts.

See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers , 17 S UFFOLK U. L. R EV

. 881, 881 (1983) (Article III prevents the “overjudicialization of the processes of self

- governance”). If f ederal 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 , 5477

U.S. 332, 341 (2006) (quoting 4 P APERS OF J OHN M ARSHALL 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, j udicial 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.
C ONST

. 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 (201 6). Given the separation

- of

- powers principles animating Article III

, standing analysis is “especially rigorous” when we are asked to decid e 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

- of

powers principles); Part II.B (history). A nd 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, w e lack authority to resolve disputes between the Legislative and
Executive Branches until the ir 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
remain s 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 lib erties

. . . 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, th e 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. Sup p. 2d 1 (D.D.C. 2013), with Sandra Hernandez, Partisan Politics Plague Probe of “Fast and Furious

, ” L.A. T IMES (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) (inte rnal 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 board s

.

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 presiden tial 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

Pre sident 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 : T he
Committee claims an absolute right to McGahn’s testimony,
and the Pr esident 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. C ourt 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 it s “obstruction of Congress ” article of impeachment. See H .R. R EP

. N O

. 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

Proc eedings Before the United States Senate 49, 53 (Jan. 20, 2020).11

Judicial entanglement in the branches’ political affairs
would no t end here

. If the Committee can enforce this subpoena in the courts

, chambers of Congress (and their duly authorized committees) can enforce any subpoena . T hough
momentous, t he legal issue in this case is quite narrow : whether the President may assert absolute testimonial immunity on behalf of McGahn . But future disagreemen ts 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. Mazar s 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

- of

context 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 wo uld be forced to supervise the branches, scrutiniz e their asserted constitutional interests, and elaborat e 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

- cv

3557 (D.D.C. Nov. 2 6, 2019 ), Dkt. No. 1. The Oversight12

Committee seeks documents related to yet another politically charged dispute: the administration’s decision to add a citizenship question to the census

. S ee id. at 83

- 84 ; Catie Edmondson, House Committee Sues Barr and Ro ss Over 2020
Census Documents

, N.Y. T IMES (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 assertion s baseless. In that case, t he Committee assure s 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
i f 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 63 5 (Jackson, J., con curring), and the political
branches have long resolved most of their differences through “negotiation and accommodation

, ” Josh Chafetz, Executive Branch Contempt of Congress , 76 U. C HI . L. R EV

. 1083, 1132 (2009 ) ; see also Neal Devins, Congressional

- Executive Information Access Disputes: A Modest Proposal

— Do Nothing , 49 A DMIN

. L. R EV

. 109 (1996); Irving Younger, Congressional Investigations and Executive Secrecy: A Study in the Separation of Powers , 20 U. P ITT

. L. R EV . 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) , b ut for almost two13

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

, ” Chafetz, supra , at 1146

- 47.

Th e absence of a judicial remedy doesn’t render Congress powerless. Instead, the Constitution g i ve s Congress a series of political tools to bring the Executive Branch to heel. See
Goldwater v. Carter

, 444 U.S. 996, 100 4 (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, with hold appropriations

, refus e t o 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 63 5 (Jackson, J., concurring) . B ut 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 politica l 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

. C f. Youngstown , 343 U.S. at 635 ( Jackson, J., concurring) (“The actual art of governing under our Constitution does not and cannot conform to judicial14

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 Co mmittee 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 5 3 (D.D.C. 2008) . But as we explain below, the legal basis for that practice is dubious

,

s ee 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.”) , an d 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 the se separation

- of

- powers principles. The Supreme Court has said

— time and again

— that a n 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.”). I n this case, the history cuts decisively against the Committee

. Neither interbranch disputes ( in general ) nor interbranch information15

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 sig nificance 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. I n “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

. B ut i f , 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 P resident 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 these16

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 entit le 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) (challen ge 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.

, Zivoto f

sky 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 h istory 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. See17

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 T ODD G ARVEY
, C ONG

. R ESEARCH S ER V

. , R45983,
C ONGRESSIONAL A CCESS TO I NFORMATION IN AN
I MPEACHMENT I NVESTIGATION 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
10 83

- 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,

F ranklin 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 litigat ion 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 information18

disputes have no place in federal court

. In Holder , the Obama Administration argued that congressional committees could not “circumvent [the] histor ical

. . . 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
d isputes 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: T he Committee may not invoke the jurisdiction of the federal courts to enforce its subpoena

.

C

Congress seems to agree, too

. Th e current statutory regime for enforcement of congressional subpoenas reflects Congress’s judgment that information disputes be tween 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

. S ee 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 13 65(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 plain19

text says . A s 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 inter branch 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 jurisdic tion
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 Indepen dent Red istrict ing Commission

, 135 S. Ct. 2652 (2015), the Committee argues that it may assert an “institutional injury” to satisf y Article III

, even in a suit against the Executive Branch

. Committee Br. 2 0

- 23 . Third, the
Committee insists that circuit precedent b efore 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 “garden

variety” 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 year s 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 par ty.” Id. at 54, J.A. 902.

B y 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 th at’s not how Article III works

. “ T he 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 deci ding cases,” DaimlerChrysler Corp. , 547 U.S. at 340, not the other way around. Were it21

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 : H ave we resolved this type of legal issue before?
Article III compels us to ask instead : H ave we resolved this type of case or controversy before?

Here, the answer is clearly no. First, t he 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 ; i t involved a subpoena issued under the c ourt’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 7 07; 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, f ederal 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 part ies, 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

, ” Marb ury , 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. T he Committee argues that the House possesses the “sole Power of Impeachment

, ” along with a broad power to investigate

. See U.S. C ONST

. 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, t he 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 Legis lature , 135
S. Ct. at 2664

- 65. If the Arizona State Legislatu re 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, t he

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, t he 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 betwe en 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. C ONST

. 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, c l. 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 wi th 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 better25

under our case law

, but not so today. Beginning in 1974, the

D .C. Circuit experimented with a n 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

- stan ding 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 Comm ittee , 498 F.2d

at 725

. None of these case s 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 th e 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 dispense d 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, compel s 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 legislat ive or executive act.”
Chenoweth , 181 F.3d at 114 (emphas e s added). In other words, a holding that Congress had standing was not necessarily a27

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 legisla tive

- 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

—

a n issue i t 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 wh ether the case was justiciable

.

AT&T I was n o t 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 ul timately 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 testim ony; 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]

. . . it28

appears unlikely the par ties will reach a mutually acceptable accommodation.”). Therefore, neither AT&T I n or 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 cast s 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 infr a Part V. But the fact t hat 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 appro ach 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 separatio n-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

- 1 4 ; that (2) we can and should resolve this interbranch dispute because the federal courts are the
Committee’s “last resort,” see id. at 1 5

- 19 ; and that (3) declining to decide this matter will frustrate Congress’s capacity to perform its constitutional function s , see id. at 1

- 5,

1 8

- 19

.

Respectfully, e ach 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 impoten t , 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 Co ngress from assert ing 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, emphasizin g 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 t he 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 cit es 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 2 5 odd years between 1974 and 1997

represen t a narrow slice of a constitutional tradition that began

over 2 25 years ago . Unsurprisingly, Raines took a broader view of the history, and from that perspective, the legislative

standing doctrine of the 1970s was a blip on the radar. Indeed,

t he Supreme Court ignored our circuit’s pre

- Raines legislative

standing 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 1 5 (internal quotatio n 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 1 6 , 1 7 , 2 2

.

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 package d 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 th e legal31

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 a n impermissible jurisdictional balancing test: How narr ow must the legal issue be? How powerless Congress? And when is a matter too political? T his 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 , 73 3 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 legislative

standing cases , and we have abandoned th at 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 st anding. W e should not make th e same mistake again.

C

T he 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 1 2

- 1 4 , 1 7

- 19 , it pays almost no attention to Congress’s many political tools

.32

Take th e Appropriations Clause. The Executive Branch cannot spend a dime without Congress’s consent

, U.S. C ONST

. art. 1, § 9, cl. 7 , and that’s a powerful incentive to follow Congress ’s instructions . Don’t take our word for it ; t ake James
Madison’s: “ T his power o ver the purse

, may in fact be regarded

as the most comple at 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.” T HE
F EDERALIST N O

. 58, at 394 (J. Cooke ed. 19 61) (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 f or itself
because these “remedies cannot be undertaken by a single House of Congress.” Dissent at 1 7

. But that’s a feature of a bicameral legislature , one with “finely wrought and exhaustively considered” mechanisms through which the
chamb er s act

. Chadha , 462 U.S. at 951. Anyway , many of the
remedies can be exercised without majorities in both chambers : Most a ppropriations must be approved by the House and Senate every year. A censure vote takes a bare majority from
either chamber . And M embers 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 in formation . 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 reach ing a mutually agreeable compromise should grow as Congress turns33

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 ne gotiating process.”).

This political process also offers a n 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, D eputy 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 lit tle 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

— o n a case

- by

- case basis

— when it
makes sense to settle the score.34

The dissent also suggests that th e political process will systematically favor the Executive Branch

, e .g

. , Dissent at 1,

2 4

- 2 5

, b ut it ’ s far from obvious that judicial resolution is better

even for Congress. L itigation 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 “giv ing up the in formation and cav ing 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 Con gress 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 sh ould go unredressed seems unimaginable. See
Diss ent at 1 7

.

Nevertheless, t he 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 , b ut the remedy for that perceived wrong is in politics or

at the ballot box. If federal courts were to swoop in to rescue Congress when ever its constitutional tools fail ed , it would not just supplement the political process ; it would replace th at process with one in which unelected judges become the35

perpetual “overseer [s] ” of our elected officials

. Youngstown

, 343 U.S. at 594 (Frankfu rter, J., concurring). That is not the
role of judge s in our democra cy , 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

p arties. 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.2 8. Of course, s uch 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

, ” S pokeo , 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 separa ted powers,”
Allen , 468 U.S. at 752 . Perhaps that statute would render suits to enforce subpoenas “judicially cognizable

, ” Raines , 521 U.S.

at 81 9, though of course Congress could not “erase Article III’s36

standing requirements

, ” i d. at 820 n.3

. We leave th at 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. L ikewise, 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 financ ial
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

gover nment

, 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.” T HE F EDERALIST N O

. 51 , at 349 ( James Madison) (J. Cooke ed. 1961). B ut the legitimate scope of that disagreement is not boundless. Instead, the Constitution37

binds M embers of Congress and the Executive Branch by
“Oath or Affirmati on,” see U.S. C ONST

. 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.

V I

We lack jurisdiction to hear and therefore dismiss the Committee’s lawsuit because it does not pr esent 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.K AREN L E C RAFT H ENDERSON

, 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 ba se hit. First, McGahn urges us to foreclose Article III standing when the Congress , or a H ouse thereof,

assert s an y institutional injury in an y interbranch dispute ; 1 I do
not believe , however, Supreme Court precedent supports a holding of that s cope

. Second, McGahn’s assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far

, again, under Supreme Court

p recedent

.

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.
Blu menthal 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 exist s in all
circumstance s

. 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

re asons 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 plaint iff 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 “ C ases” or “ C ontroversies.” U.S. C ONST . art. III, § 2 , cl. 1

. In turn, “[s] tanding to sue is a doctrin e 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’ o f 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 inva sion of a legally protected interest which
is

. . . concrete and particularized,’ and that the dispute is ‘traditionally thought to be capable of resolution through the3

judicial process.’” Raines , 521 U.S. at 819 (citation omitted) (first quoting Lujan , 50 4 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 consi derations 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 In t’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 distributi ng 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. D OC

. N O

. 106

– 21, at 19 (2000) [hereinafter Farewell Address] . Any change in the respective allocation s 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
th eir 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 o f 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

- of

powers considerations “are particularly acute

. . . when a legislator attempts to bring an essentially political dispute into a judicial forum”). It is unclear j ust how much rigor is mandated by Raines ’s “especially rigorous” instruction. 2

A lthough we should “exercise self

- restraint in the utilization of our power to negative the a ctions of the other branches,”

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

- of

- powers element magnif

ies , rather than modif

ies

, our standing analysis. 3 In 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 interest5

interbranch dispute does not by itself deter mine whether the traditional requisites of standing are satisfied . I nstead, 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 fi nd the dispute beyond our ken . “ P roper 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 bro ught 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., di ssenting) , 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 in stitutional injury. In deed, 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

asserte d

. . . 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,

i mportantly, 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

. ” I d.

“ T hat ‘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 w hich 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 lac ks capacity to assert interests belonging to the legislature as a whole.” Id. at 1953

– 54 (citation omitted).

Here, t he Committee ’s allege d 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. C ONST . 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 predate d the start
of formal impeachment proceedings, the extended timeline of this7

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

, which encompasses “the s ubpoena 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 Ac tivities 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. C ompeting constitutional prerogatives and the potential availability of
alternative legislative remedies do not paralyze federal courts

fr om 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 abs ent 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.

Nixo n , 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 Maj ority Op. 14

– 16; see also Ariz. State Legislature , 135 S. Ct. at 2695 (Scalia, J., dissentin g) ( “ [ 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 does t his suit resemble a “case” or “controversy” traditionally contemplated as within

our Article III power. Accordingly, judicial restraint counsels

t hat 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. T o t he extent , if any, Arizona State Legislat ure 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 ). T his credo has guided our country since its birth. Again, i n 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.” F arewell 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 c ountry.” 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. I f federal legislative standing is to be given new life, it must be the Su preme Court

— not an inferior court

— that resuscitat es 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 ma y 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 ha ve been10

“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] presumpt ive 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.”). W hen these constitutional components collide, which should prevail?

T he Committee press es 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), v acated sub nom. Burke v. Barnes , 479 U.S. 361 (1987). And, indeed, although informational disp utes 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., dissentin g ) (historical background), the Judiciary was not asked to settle
them until the Watergate years

. In past political battles

,

e xecutive 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.
S ENATE (2017), https://perm a.cc/J2HH

- X5WG

. Other times, they did not. But in no instance were such disputes resolved by federal judges. Now, b reakdowns in the time

- honored process of negotiation and accommodation have embroiled this court in a fight we are ill

- suited to referee.11

Al though 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

erect s a barrier that

, al though 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 encourag e s the parties to use accommodation and other political tools,
McGahn’s absolutist stance has prevented their use and prematurely involve d the courts

. Indeed, had the Committee prevailed here

— assuming, of course, standing, jurisdiction and
a viable cause of action

— th e 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 privilege

based objections t o 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

. B ecause absolute immun ity is its primary position, however, the
Executive Branc h 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, wh ich
is recognized “to encourage the candid advice necessary for effective decisionmaking,” Dellums v. Powell , 561 F.2d 242, 246 (D.C. Cir. 1977 ). E ach also preserve s 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 asser tion 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

e xecutive subordination if a politically motivated Congress

summon s e xecutive 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 in voked13

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), 7 the 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

ge neralizations were “necessarily tentative and sketchy

, ” Mr. Rehnquist concluded that the P resident’s immediate

advisors “ should be deemed absolutely immune from testimonial compulsion by a congressional committee

. ” Memorandum from William H. Rehnquist, Ass istant 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 Me morandum]

. Subsequent OLC opinions are largely derivative and identify no case law recognizing the existence of such immunity from congressional process

.

The Judiciary has, however, addressed e xecutive 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 ref lect 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. P A

. L. R EV . 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 compu lsion, so necessary to the effective
function ing 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), entitle s 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

f unctioning of government,” id. at 751

— does not completely shield a sitting President from the reach of the J udiciary

. I n civil litigation predicated on his unofficial acts, the President cannot claim temporary immunity (i.e., a stay of proceedings
until af ter he leaves office). Clinton v. Jones , 520 U.S. 681, 69 2 (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 di scovery 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 depo sitions, 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
absolute ly immune from compelled congressional process, it
does not necessarily follow that his close advisors are too. In fact, although the Speech or Debate Clause 9 derivatively 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 (197 8), 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 pursu ant 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 derivat iv e absolute immunity, id. at 809, al though the Supreme Court left open the possibility that absolute immunity may b e 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 o r Debate in either House, they shall not be questioned in any other
Place.” U.S. C ONST . 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 Mitch ell 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 , 80 7 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

—

pr otect ed by applicable privileges

— would have
such a n effect.

To the contrary, i t seems likely that the invocation of well

settled privilege s could adequately protect the Executive Branch’s undeniably critical interests. Again, the dearth of
head

- on conflict s between the President and the Congress requires analogy to related settings. In judicial proceedings the President’s executive privilege is not absolute

, s ee 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

2 49

. Thus, a qualified executive privilege would seem , at least

to me, the most appropriate mechanism to govern a dispute like

t he one now before us.

11 Nixon involved a criminal proceeding but we soon rejected a generalized claim of absolut e executive privilege in civil litigation as
well. See Dellums , 561 F.2d at 245

– 46.17

Granted, consideration of executive privilege take s 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 generalize d 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 Presiden t’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 certaint y 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 weight y 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 s hadows 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 the18

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 Depa rtments.” 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1561 (1907).

“ I t 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 s take 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 wh ether 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 co ntent 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
unlikel y 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 su ccessor.” 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 t he knowledge that their advice could be made public by the President

. And i f 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 69 2 , the impositi on 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

. I t 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 questionab le 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 separ ately, 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 con gressional inquiries strikes a resounding blow to the system of compromise and accommodation that has governed these fights since the republic began

. P olitic al negotiations should be the first

— and

, it is hoped, only

—

recourse to resolve the competing and

po werful interests of two coequal branches of government.
And e ven if one is skeptical of this rosy projection, I believe the applicable privilege s 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.R OGERS
, Circuit Judge , dissenting: Today the court reaches the extraordinary conclusion that the House of Representatives, in the exer cise of its “sole Power of Impeachment,” U.S. C ONST

. art. I, § 2, cl. 5, lacks standing under Article III of the Constitution to seek judicial enforcement of a subpoena in c onnection with an investigation into whether to impeach the President. The House comes to the court in light of the Pres ident’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 pr ocess 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. C ONST

. 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, fo r instance, stated that “the powers relating to impeachments ar e . . . an essential check in the hands of [Congress] upon the encroachments of the
executive.” F EDERALIST N O

. 66 (Alexander Hamilton). He understood that the power to imp each the president was a key feature distinguishing the chief executive from the monarchs of England, see F EDERALIST N O

. 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 violen t revolution precipitate d in large part by arbitrary and abusive action by King George III of Great2

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 Pres idential Election (March 2019), Vol II. at 157. The Special Counsel’s Report also acknowledged that the Departme nt 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 pe rformance of its constitutional
roles. The courts have consis tently 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 Suprem e Court stated, “We are of opinion that the power of inquiry — with pr ocess 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 to3

investigate — including of cour se the authority to compel testimony, either through its own processes or through judicial trial — Congress could be serious ly handicapped in its efforts to exercise its constitutional function wisely and effectively.”
Id. at 160–61. That right of inqui ry “may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional pow ers 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. C ONST . art. I, § 2, cl. 5, it has a constitutional obligation to inve stigate further and to decide
whether to exercise its trem endous power of impeachment. The question of whether to impeach or not is a grave and solemn decision upon which tu rns whether a duly elected President may be removed from office. It is not a decision taken lightly and, for th at reason, must be ma de on an informed basis. In the context of imp eachment, when the accuracy and thoroughness of the investigati on 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 histor y, 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 the4

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 Just ice (“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 fa shion” with a Congressional inquiry. Oral Arg. Tr. at 21.

The President and Congress have traditionally been able to resolve disputes over Congre ssional desire for Executive Branch documents and testimony. The President’s reticence to turn them over here through info rmal processes of negotiation and give-and-take, as repeat edly 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 en forcement 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 cour t must consider in determining whether the Hous e 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 Hous e has standing here. The House
also has a cause of action to enforce its subpoe na in federal court, in view of the essentiali ty of the subpoena power to the House’s performance of its const itutional functions. There is a5

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 ha s standing and a cause of action, and that there is federal subject matter jurisdiction over its lawsuit, the district court or der enforcing the subpoena by directing McGahn to appear be fore the Committee should be
affirmed.

I.

In Raines v. Byrd , 521 U.S. 811 (1997), the Supreme Court
held that six individual Member s of Congress lacked Article III standing to challenge the consti tutionality of the Line Item

Veto Act. Id. at 814. The Court relied on four considerations: (1) the individual plaintiffs allege d 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 re spective Houses of Congress . . . , and indeed both Houses actively oppose[d] their suit”; and (4) dismissing the lawsuit “nei ther 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 th an 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 app ear 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 acu te, not “wholly abstract.” Nor is the injury wi dely dispersed. By virtue of McGahn’s defiance of the subpoena, the full House has incurred an institutional inju ry. And in view of House
authorization of the instant laws uit, the House is the plaintiff seeking to remedy that institut ional injury. Thus, the very entity that has suffered the in jury 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 th at 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 identi fy problems with the specific institutional injury alleged. Th e Court would have stated that7

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 au thority where the authority was vested, by a ballot initiative, in an independent entity. The Court’s holding thus precludes the view th at 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. Histor y 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 im peachment. Although there have been relatively few instances of in terbranch 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 th ere may have been isolated
instances of Presid ential nondisclosure of requested Executive Branch documents or testimony, th is 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 branch8

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 ha s not squarely addressed the question presented here is unsur prising, 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-enfor cement lawsuits against
Executive Branch officials sin ce 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 fo r production of the “Nixon tapes.” The court did not inde pendently analyze jurisdiction, including Article III standing, obs erving without critique that
the district court had addresse d and rejected the President’s
contention that the lawsuit wa s 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 Supr eme Court precedent, the issues presented to it were justiciable.” Id. (emphasis added) (quoting
Senate Select Comm. on Presiden tial 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 Stat es, to respectfully decline to9

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 complianc e 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 jurisd ictional 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 w hole has standing to assert its investigatory power, id. at 391.

More recently, courts have lik ewise held that the federal courts have jurisdiction to d ecide a Congressional subpoenaenforcement action against a fo rmer 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 am enable to judicial resolution. The Supreme Court has acknowledg ed that histor ical 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 A ppointments Clause of the Constitution. The Court noted that “in interpreting the Clause, we put significant weight upon hist orical practice,” and stated that “precedent[] show[s] that th is Court has treated practice as an important interpre tive factor even when the nature or longevity of that practice is s ubject to dispute, and even when10

that practice began afte r 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 repres ent 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 th ere was a mismat ch between the individual legislator s 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 Stat e Legislature lacked standing
and characterized Raines as “holding specifically and only that ‘individual members of Congress [l ack] 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 asserti ng 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 j udicial invalidation of a state redistricting plan when the state constitution vested that authority in the General Assembly, of which the House of11

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 la tter, “there was no mismatch between the body seeking to litig ate 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 th at 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 plai ntiffs’ 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 i nvolved 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 expressly12

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 reme dy” or “foreclose[] the [Line Item Veto] Act from constitutional challenge.” Raines , 521 U.S. at 829. Significantly, on tw o 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 A ssistant Attorney General Theodore Olson analyzed the meth ods available to Congress to enforce a subpoena and concluded that there was no constitutionally viable alte rnative to a civil subpoenaenforcement action in federal cour t, that is, the very mechanism that the House pursues here. See Prosecution fo r 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 explaine d, Congress has two potential
alternatives to a civil enforcem ent action: First, it can hold a recalcitrant subpoena recipien t in contempt and refer the citation to the Department of Justice for prosecution under the criminal contempt of Congr ess 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 Congre ss statute does not require and could not constitutionally re quire a prosecution” of an
Executive Branch official w ho defies a Congressional subpoena on the basis of Executi ve privilege “or even . . . a13

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 subor dinate 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 c ontempt of Congress statute simply was not intended to apply and could not constitutionally be applied to an Executive Br anch official who asserts the President’s claim of executive privilege.” Response to Congressional Requests for In formation 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 understand s itself not to be required to prosecute an Executive Branch official who has declined, on the basis of Executive priv ilege, to comply with a Congressional subpoena. Therefore, citing McGahn for contempt and referring the citati on to the Department of Justice for prosecution would be ineffective because the Department would decline to pursue the pros ecution. 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 prosecuti on of his former White House Counsel for failing to comp ly 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 Ju diciary, U.S. House of Representatives, for an Order Au thorizing 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 focuse d not on the unseemliness and undesirableness of physical confrontation between the Branches but rather on the concern that subjecting close presidential advisors to Congr essional 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 suggest s 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 th e legal question of whether such detention would comport with the Constitution, Cooper also noted the practical unlikeli hood that Congress would pursue that relief, noting that Congre ss had not used its inherent contempt authority si nce 1917 and that “it seems most unlikely that Congress would dispatch th e Sergeant-at-Arms to arrest and imprison an Executive Br anch official who claimed executive privilege.” Cooper, 10 O p. O.L.C. at 86. It suffices here to note that the prospect that the House will direct its Sergeant at Arms to arrest McGa hn is vanishingly slim, so long as a more peaceable judicial altern ative 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 analys is might have b een 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 di ctate, that the Committee lacks standing here.15

II.

The court undoubtedly must proceed with caution given the separation of powers princi ples implicated when a House of Congress files a lawsuit agains t 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 enforcemen t 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 F ED

. R. C IV

. 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 F ED

. R. C IV

. P. 45(e)(2). The court must quash or modify the subpoena if it determines that the subpoena “requires disclosure of privileg ed or other protected matter.”

F ED

. R. C IV

. 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 F ED

. R. C IV

. 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 fe deral court. In exercising16

jurisdiction over th e Committee’s subpoena -enforcement suit,
the court does not take sides in an interbranch dispute or involve the court in any politic al dispute, because the court need only to address whether Mc Gahn 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 politic al 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 di strict court’s order that he comply with that subpoena requires him to answer any questions before the Comm ittee. “[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 fr om 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 commit tee requests is a separate question, and one that will depend in large part on whether the requested information is itself su bject 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 as k him questions. Although the applicability of any given priv ilege 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 re asons 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 priv ilege, 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. Potentia lly 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 th at there are alternative remedies available to Congress flies in the face of OLC’s opinions that these are impracti cable. Practically speaking, based on the current record, C ongress will obtain McGahn’s appearance by proceeding in court, or not at all. One of my colleagues points to use of th e 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 singl e House of Congress, and in any event, OLC did not consider them possible tools for the
enforcement of a C ongressional subpoena. Further, OLC has opined that the criminal contem pt statute does not apply to18

Executive Branch officials asse rting a claim of Executive privilege, Olson, 8 Op. O.L.C. at 142, and so it is extremely likely that the Department of Ju stice 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 availabl e. The infrequency with which Congress has detained an Executiv e Branch official —twice in the country’s history, and not since 1916, see Marshall v.
Gordon , 243 U.S. 521 (1917) — attest s 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 s ubpoena-enforcement action in federal court. Congress ha s a “legitimate and powerful interest” in obtaining information necessary to the performance of its constitutional responsib ilities, and Congress could “vindicate its asserted right to obtain any documents by a civil action for enforcement of a congr essional 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 possibl e options available for Congressional subpoena enforcement). Analyzing Senate
Select Committee , among other precedent, OLC concluded that “although the civil enfo rcement route has not been tried by the House, it would appear to be a viable option.” Id. at 88. So, in acknowledgement of the impracti cability 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 abil ity to fulfill its constitutional obligations now and going forward.

III.

The interbranch nature of this lawsuit requires the court to carefully review the separati on of powers considerations associated with exercising jurisdiction over this case. “ Raines . . . may . . . require us to me rge our separati on of powers and standing analyses.” Chenoweth , 181 F.3d at 116. Yet McGahn’s various arguments th at proper respect for the separation of powers dictates th at the Committee lacks standing are unpersuasive, as are those of my colleague, see Op. at 7–9 (Henderson, J.), inasmuch as the circuit courts pr ovide a fitting place to offer analyses, ultimately for the Supreme Court’s
review.

First, McGahn argues that deciding this lawsuit would constitute a Congressional a rrogation of power, providing it another tool to achieve victory in an interbranch struggle with the Executive. In his view, C ongress already has several tools at its disposal in such confli cts, and it disrupts the delicate balance between Congress and th e Executive to afford the
former another tool. These to ols are impracti cable 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 Congr ess’s arsenal is unwarranted. Federal courts have consistently permitted Congress to bring civil subpoena-enforcement ac tions, 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 contrar y, every court to have taken up the question has determined that there is standing in such a case. Thus, the better understand ing is that the current balance20

of power between the two pol itical Branches includes Congress’s power to vindicate in fe deral court its constitutional right to compulsory process. So understood, what would disrupt the present balance of pow er is not a hold ing 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 Presid ential non-cooperation with Congressional subpoenas and ther eby substantially undermines the ability of Congr ess to acquire in formation from the Executive Branch necessary to the performance of its constitutional respons ibilities. That outco me will have broad disruptive consequences for re lations 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 lack s Article III standing by stating that the outcome might change if , in the future, there were a statute “expressly authoriz[i ng]” a Congressional subpoenaenforcement lawsuit, Op. at 28 (Griffith, J.), this remarkable suggestion is difficult to take se riously. 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 “rende r 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 “sep aration-of-powers principles and historical practice compel us to dismiss” the Committee’s suit, id. at 19, the suggestion is that the political Branches might21

undo the court’s constitutional ru ling that the Committee lacks Article III standing simply by e xpressing a different view of the separation of powers principl es at stake in this case. Although the political Branches can and sometimes do overrule statutory rulings of the federa l 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 cour t 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, ex ercising 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 direc tly in federal court and circumventing the Executive’s pr osecutorial 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 certainl y 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 circum vention of the President’s performance of his constitutional responsibilities is thus misplaced. This statement is al so misguided because it ignores
the fact that enfor cement of congressiona l subpoenas is not22

committed exclusively to the Executive Branch. Congress itself possesses the power to en force 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 th at the House may not “circumvent” the law-enforcement duty of the Executive Branch is unavailing.

Third, McGahn argues that assu ming jurisdiction here
threatens to undermine the Judiciar y itself. He maintains that for the courts to intervene in interbranch disputes risks undermining public confidence in the judiciary. Judicial
“intervention” in an “interbr anch 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 min imal 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 th e case itself. And speculation that Congress or the President might atte mpt 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 in23

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 la wsuit 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 d eclare one Branch’s actions unlawful render this subpoe na-enforcement suit nonjusticiable. Courts regularly re view the actions of Congress or the Executive Branch for comp liance with the Constitution, and indeed doing so is a bedroc k 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 d eciding the case would require the court to declare unlawful the action of one Branch does not, standing alone, justify dismi ssing the Committee’s lawsuit. The Supreme Court has deve loped a robust doctrine for determining when a lawsuit pres ents 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 resoluti on. 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 ar gued to the Senate: “We’re acting as if the courts are an improper venue to determine24

constitutional issues of this ma gnitude . . . . That is why we have courts. That is why we ha ve 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 limit ed question before it, it has, as in any subpoena-enforcement li tigation, no power to control
comments about it. Because the political Branches will likely attempt to bolster their positi ons in the impeachment fight using the court’s decision, rega rdless of the disposition, this
cannot be a reason for the court to abstain. Furthermore, the infrequency of Congressional laws uits 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 be tween the other two Branches of the federal government. The pa ucity of such cases instead suggests that Congress generally ha s preferred not to resort to
the courts in order to obtain in formation for the discharge of its
constitutional duties.

Finally, the view that decidi ng this subpoena-enforcement issue would “displace the long-established process by which the political branches resolve in formation 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 anaccommodation. Future Presidents may direct widescale noncompliance with lawful Congressi onal inquiries, secure in the knowledge that Congress can do little to enforce a subpoena25

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 re lief 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 en join 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 th at 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 Declarat ory 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 jurisd iction; 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 who26

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 requi rements for proc eeding under the Declaratory Judgment Act are thus met.

The various limits that the S upreme 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 Suprem e Court has long stressed that the Declaratory Judgment Act doe s 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 Decl aratory Judgment Act asking the federal court to interpret a contract provision, a question solely
of state law. Id. at 672. The Court decide d that the mere fact that the plaintiffs had proceeded under the Act did not suffice
to render the case’s state contr act 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 s eek to rely on the Act as a source of federal court jurisdiction.

Second, the Declaratory Judgm ent Act “presu pposes 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 federal27

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 Secret ary 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 excl usively 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 cont ext 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 as sert a statutory right, there is no statutorily mandated ex clusive remedial scheme for vindication of that righ t, as there was in C&E Services

.

More broadly, C&E Services and Schilling stand for the proposition that the Declarat ory Judgment Act provides no substantive right that a plaintif f may seek to adjudicate in federal court. Rather, the Act is a vehicle for vindicating some separate and independent substa ntive 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 ha s long recogniz ed 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 Committe e here asserts a right based on its constitutional duty, the re quirement that a Declaratory Judgment Act plaintiff rely on an independent substantive right
is satisfied.

It is true, as McGahn empha sizes, that this court once
stated: “Nor does the Declarator y 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 circ umstances 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 ope rations in those two countries.
See id. at 764. Their lawsuit sought, among other things, a declaratory judgment that their tr eatment in detention violated the law of nations, treaties to which the United States was a party, and the Fifth and Eight h Amendments of the U.S.
Constitution. Id. at 764–65. In Ali , the court held that the Declaratory Judgment Act did not provide the plai ntiffs with a cause of action, see id. at 778, casting doubt on the proposition that the Fifth and Eighth Amendm ents 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 ou rselves — why the plaintiffs’ Fifth and Eighth Amendment clai ms would be any stronger than the Suspension Clause claims of the Bagram detainees.”
Ali , 649 F.3d at 772. The clear imp lication of that reasoning is that the Fifth and Eighth Ame ndments did not apply to the Ali plaintiffs, and thus that no constitutional right was at stake. Here, no party disputes the existe nce 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 2829

U.S.C. § 1331, which grants st atutory jurisdiction over “all civil actions arising under the Constitution . . . of the United
States.” Because the House s eeks 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 bolster ed by the analysis in AT&T , 551 F.2d at 389, which recognized that there is federal-question jurisdiction over such an interb ranch dispute because of the “constitutional powers” that the dispute implicates.

To the extent McGahn mainta ins 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 a ny 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 s ubpoena or order issued by the
Senate or committee or subcomm ittee.” 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 sugge sts, Congress intended that
the federal courts should not have jurisdiction over the latter. Yet this argument overlooks the co ntext of the statute, namely that when Congress enacted § 1365 in 1978, § 1331 contained an amount-in-controversy requireme nt for suits against private parties and officials acting in the individual capacities. The Senate had good reason to believ e that this requirement would be an obstacle to subpoena-enforce ment 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 Presiden tial Campaign Activities v.

Nixon , 366 F. Supp. 51, 59–61 (D.D.C. 1973). Congress30

addressed this problem in 1978 with the enactment of § 1365, which granted federal courts subject matter jurisdiction over Senate subpoena-enforcement act ions 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, neglect ing 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 enacti ng § 1365, there is no basis to
conclude the statute bears on federal jurisdic tion 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-enforcem ent suit unless specifically authorized, and that Congress want s 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 constitutiona l prerogatives, it would be inappropriate in the absence of a clear statutory directive to conclude § 1365 also restricted th e power of the House to file a federal subpoena-e nforcement action.31

V.

Today the court does not reach the merits of McGahn’s absolute-immunity claim, althou gh 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 argume nt on the merits.

Accordingly, I respectfully dissent.