United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 28, 2020 Decided August 7, 2020 

No. 19-5331 

COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE 

OF REPRESENTATIVES, 

APPELLEE

v. 

DONALD F. MCGAHN, II, 

APPELLANT

On Petition for Rehearing En Banc 

Hashim M. Mooppan, Deputy Assistant Attorney General, 

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

With him on the brief were Mark R. Freeman and Michael S. 

Raab, Attorneys. 

Douglas N. Letter, General Counsel, and Megan Barbero, 

Deputy General Counsel, U.S. House of Representatives, 

argued the cause for appellee. With them on the brief were 

Todd B. Tatelman, Principal Deputy General Counsel, 

Josephine Morse, Deputy General Counsel, Adam A. Grogg

and William E. Havemann, Associate General Counsel,

Jonathan B. Schwartz, Attorney, Annie L. Owens, Joshua A. 

Geltzer, and Matthew S. Hellman.
2 

Elizabeth B. Wydra, Brianne J. Gorod, and Ashwin P. 

Phatak were on the brief for amici curiae Former Department 

of Justice Officials in support of appellee. 

Irvin B. Nathan, John A. Freedman, Andrew T. Tutt, and 

Samuel F. Callahan were on the brief for amici curiae Former 

Members of Congress in support of appellee. 

Andrew D. Herman was on the brief for amici curiae the 

Lugar Center and the Levin Center at Wayne Law in support 

of appellee. 

Dwayne D. Sam and David Bookbinder were on the brief 

for amicus curiae Niskanen Center in support of appellee. 

Kelsi Brown Corkran, Benjamin F. Aiken, and Sarah H. 

Sloan were on the brief for amici curiae Professors Jonathan R. 

Nash, et al. in support of appellee. 

Michael J. Miarmi and Rhea Ghosh were on the brief for 

amici curiae Nixon Impeachment Scholars in support of 

appellee. 

Katharine M. Mapes was on the brief for amicus curiae 

Morton Rosenberg in support of appellee. 

Lawrence S. Robbins, D. Hunter Smith, and Megan 

Browder were on the brief for amici curiae Former General 

Counsels of the U.S. House of Representatives in support of 

appellee. 
3 

Before: SRINIVASAN, Chief Judge, HENDERSON, ROGERS, 

TATEL, GARLAND, GRIFFITH, MILLETT, PILLARD, WILKINS, 

KATSAS*, and RAO*, Circuit Judges. 

 Opinion of the Court by Circuit Judge ROGERS. 

 Dissenting opinion by Circuit Judge HENDERSON. 

 Dissenting opinion by Circuit Judge GRIFFITH. 

ROGERS, Circuit Judge: The question before the en banc

court is whether the Committee on the Judiciary of the House 

of Representatives has standing under Article III of the 

Constitution to seek judicial enforcement of its duly issued 

subpoena. Upon applying the principles of Article III standing, 

we hold that it does. 

The Constitution charges Congress with certain 

responsibilities, including to legislate, to conduct oversight of 

the federal government, and, when necessary, to impeach and 

remove a President or other Executive Branch official from 

office. Possession of relevant information is an essential 

precondition to the effective discharge of all of those duties. 

Congress cannot intelligently legislate without identifying 

national problems in need of legislative solution and relying on 

testimony and data that provide a deeper understanding of 

those problems, their origins, and potential solutions. It 

likewise cannot conduct effective oversight of the federal 

government without detailed information about the operations 

of its departments and agencies. And it cannot undertake 

impeachment proceedings without knowing how the official in 

* Judge Katsas and Judge Rao did not participate in this matter. 
4 

question has discharged his or her constitutional 

responsibilities. 

The Committee, acting on behalf of the full House of 

Representatives, has shown that it suffers a concrete and 

particularized injury when denied the opportunity to obtain 

information necessary to the legislative, oversight, and 

impeachment functions of the House, and that its injury would 

be redressed by the order it seeks from the court. The 

separation of powers and historical practice objections 

presented here require no different result. Indeed, the ordinary 

and effective functioning of the Legislative Branch critically 

depends on the legislative prerogative to obtain information, 

and constitutional structure and historical practice support 

judicial enforcement of congressional subpoenas when 

necessary. 

 I.

In March 2019, the House Judiciary Committee (“the 

Committee”) began an investigation into alleged misconduct 

by President Trump and his close advisors. See H. REP. NO. 

116-105, at 13 (2019). Its investigation followed upon 

publication of the report of Special Counsel Robert S. Mueller. 

See ROBERT S. MUELLER, III, REPORT ON THE INVESTIGATION 

INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL 

ELECTION (2019). During his investigation, the Special 

Counsel interviewed Donald F. McGahn, II, then serving as 

White House Counsel. In declining to exonerate the President, 

the Special Counsel explained that the Office of Legal Counsel 

(“OLC”) in the Department of Justice had opined that indicting 

or criminally prosecuting a sitting President would violate the 

separation of powers. See id., vol. II at 1. The Special 

Counsel’s Report accordingly concluded that impeachment 

would be the mechanism to address whether President Trump 
5 

impermissibly coordinated with the Russian government in 

connection with the 2016 Presidential election or obstructed 

justice in the course of the Special Counsel’s investigation. See 

id. The Committee’s investigation responded to this 

conclusion. 

The Committee’s interest in McGahn’s testimony 

therefore arose in furtherance of the “sole Power of 

Impeachment” vested in the House of Representatives under 

Article I, section 2, clause 5 of the Constitution, and included 

consideration of the amendment or enactment of laws on 

ethical conduct by Executive Branch officials and oversight of 

the Department of Justice (“the Department”) and the Federal 

Bureau of Investigation to determine if they were operating 

with requisite independence. Memorandum from Hon. Jerrold 

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

Representatives, to Members of the Committee, at 4–8 (July 

11, 2019) (hereinafter “Nadler Memorandum”); H. REP. NO. 

116-346, at 132–34, 159–60 & n.928 (2019); H. REP. NO. 116-

105, at 13. The Committee requested that McGahn turn over 

documents related to the President’s alleged obstruction of the 

Special Counsel’s investigation. His testimony would, in turn, 

inform the Committee’s determination of whether President 

Trump had committed impeachable offenses in obstructing the 

Special Counsel’s investigation and whether to recommend 

articles of impeachment. McGahn’s testimony would also 

inform House oversight and legislative functions in 

determining the need for legislation to protect federal law 

enforcement investigations from improper political 

interference. Nadler Memorandum at 4–8; H. REP. NO. 116-

346, at 132–34, 159–60 & n.928; H. REP. NO. 116-105, at 13. 

When McGahn, then no longer White House Counsel, 

declined these requests, the Committee issued a subpoena on 

April 22, 2019, ordering McGahn to appear at a May 21, 2019, 
6 

hearing to testify and to produce the requested documents. On 

May 20, McGahn’s successor as White House Counsel 

informed the Committee that the President had “directed Mr. 

McGahn not to appear at the Committee’s scheduled hearing” 

because the OLC had opined that close Presidential advisors 

were “absolutely immune from compelled congressional 

testimony.” Letter from Pat A. Cipollone, White House 

Counsel, to Hon. Jerrold Nadler, Chairman, Comm. on the 

Judiciary, U.S. House of Representatives, at 1–2 (May 20, 

2019). McGahn’s private counsel confirmed that he would not 

appear. Letter from William A. Burck to Hon Jerrold Nadler, 

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

Representatives, at 1 (May 20, 2019). 

 Although agreement was ultimately reached on the 

production of the subpoenaed documents, McGahn repeatedly 

rejected the Committee’s continuing offers of accommodations 

in attempting to secure his testimony. Finally, impasse having 

been reached, the Committee, as authorized by the House of 

Representatives in H. RES. 430, 116th Cong. (2019), filed suit 

in the federal district court on August 17, 2019, to enforce its 

subpoena. The complaint sought a declaratory judgment “that 

McGahn’s refusal to appear before the Committee in response 

to the subpoena issued to him was without legal justification” 

and an injunction “ordering McGahn to appear and testify 

forthwith before the Committee” “as to matters and 

information discussed in the Special Counsel’s Report and any 

other matters and information over which executive privilege 

has been waived or is not asserted.” Compl. at 53. The 

Department of Justice has represented McGahn in this 

litigation. 

 The district court, in response to the parties’ cross-motions 

for summary judgment, ruled that the Committee had both 

standing and a cause of action to enforce its subpoena, and that 
7 

the court had subject matter jurisdiction over the lawsuit. On 

the merits, the district court rejected McGahn’s claim of 

absolute immunity from a congressional subpoena and directed 

him to appear before the Committee. Because McGahn might 

be entitled to withhold certain information on the basis of 

recognized privileges, the district court clarified that the 

injunction required McGahn only to appear before the 

Committee, not necessarily to answer any questions. Comm. 

on the Judiciary, U.S. House of Representatives v. McGahn, 

415 F. Supp. 3d 148, 214–15 (D.D.C. 2019). 

 Upon McGahn’s appeal, a divided three-judge panel of 

this court held that the Committee lacked Article III standing 

because of separation-of-powers principles and historical 

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

Representatives v. McGahn, 951 F.3d 510 (D.C. Cir. 2020). 

The court granted the Committee’s petition for en banc review 

to consider whether the Committee has standing to seek 

enforcement of its subpoena in federal court. Order at 2 (Mar. 

13, 2020). 

II. 

Article III of the Constitution vests in the federal judiciary 

“[t]he judicial power of the United States,” U.S.CONST. art. III, 

§ 1, which extends to “[c]ases” and “[c]ontroversies,” id. § 2. 

“‘One element of the case-or-controversy requirement’ is that 

plaintiffs ‘must establish that they have standing to sue.’” 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) 

(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The 

standing inquiry is “[t]rained on whether the plaintiff is [a] 

proper party to bring [a particular lawsuit].” Ariz. State 

Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 

2652, 2663 (2015) (second and third alterations in original) 

(quoting Raines, 521 U.S. at 818). It “limits the category of 
8 

litigants empowered to maintain a lawsuit in federal court to 

seek redress for a legal wrong.” Spokeo v. Robbins, 136 S. Ct. 

1540, 1547 (2016). When determining whether a plaintiff has 

Article III standing, the court must assume that the Committee 

will prevail on the merits. See Warth v. Seldin, 422 U.S. 490, 

500 (1975); Estate of Boyland v. U.S. Dep’t of Agriculture, 913 

F.3d 117, 123 (D.C. Cir. 2019). Because “reaching the merits 

of the dispute would force us to decide whether an action taken 

by one of the other two branches of the Federal Government 

was unconstitutional,” the court’s standing inquiry must be 

“especially rigorous.” Raines, 521 U.S. at 819–20. Our 

analysis reflects that rigor. 

 “[T]he ‘irreducible constitutional minimum’ of standing 

consists of three elements.” Spokeo, 136 S. Ct. at 1547 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992)). “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. At issue is injury in fact, “the ‘[f]irst 

and foremost’ of standing’s three elements.” Id. (alteration in 

original) (quoting Steel Co. v. Citizens for a Better 

Environment, 523 U.S. 83, 103 (1998)). “To establish injury 

in fact, a plaintiff must show that he or she suffered ‘an 

invasion of a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or 

hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). 

These are distinct requirements: in addition to being actual or 

imminent, “an injury in fact must be both concrete and 

particularized.” Id. 

The Supreme Court has confirmed that these general 

principles of standing apply to institutional injuries claimed by 

legislative bodies. In Arizona State Legislature v. Arizona 

Independent Redistricting Commission, 135 S. Ct. 2652 
9 

(2015), the Supreme Court held that the Arizona State 

Legislature had standing to challenge as unconstitutional a 

ballot provision that vested redistricting authority in an 

independent agency. See id. at 2665–66. Analyzing whether 

the legislature had demonstrated standing, the Court invoked 

its familiar standing test. See id. at 2663. An institutional body 

seeking to demonstrate standing “‘must 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. (quoting Arizonans for Official 

English v. Arizona, 520 U.S. 43, 64 (1997)). The first element 

of the test, injury in fact, thus applies to a legislative body 

seeking to demonstrate standing. The remainder of the test also 

applies: “[t]he Legislature’s injury must also be ‘fairly 

traceable to the challenged action’ and ‘redressable by a 

favorable ruling.’” Id. (quoting Clapper, 568 U.S. at 409). 

We begin our analysis here, addressing these general 

principles of standing, before turning to the special 

considerations presented by the interbranch nature of this 

litigation. Ultimately, we hold that the Committee has Article 

III standing to protect against the denial of that to which it 

alleges it is entitled, namely McGahn’s testimony in response 

to its duly issued subpoena. McGahn’s disregard of the 

subpoena, the validity of which he has never challenged, 

deprived the Committee of specific information sought in the 

exercise of its constitutional responsibilities. The Committee 

is the “proper party” to bring this “particular lawsuit,” id. 

Because the Committee’s injury has been caused by McGahn’s 

defiance of its subpoena and can be cured here only by judicial 

enforcement of the subpoena, the injury is traceable to 

McGahn’s conduct and judicially redressable. And, contrary 

to McGahn’s positions, the Committee’s standing is consistent 

with the system of separated powers and capable of resolution 
10 

through the judicial process, see Allen v. Wright, 468 U.S. 727, 

752 (1984). 

A. 

To be judicially cognizable and form the basis of Article 

III standing, an injury must be concrete, as opposed to abstract. 

A concrete injury is an injury that is real; it “must actually 

exist.” Spokeo, 136 S. Ct. at 1548. “‘Concrete’ is not, 

however, necessarily synonymous with ‘tangible.’ Although 

tangible injuries are perhaps easier to recognize,” the Supreme 

Court has acknowledged “that intangible injuries can 

nevertheless be concrete.” Id. at 1549. 

As to the concreteness of the Committee’s alleged injury, 

the Supreme Court has acknowledged the essentiality of 

information to the effective functioning of Congress and long 

“held that each House has power ‘to secure needed 

information’” through the subpoena power. Trump v. Mazars 

USA, LLP, 140 S. Ct. 2019, 2031 (2020) (quoting McGrain v. 

Daugherty, 273 U.S. 135, 161 (1927)). Because Congress must 

have access to information to perform its constitutional 

responsibilities, when Congress “does not itself possess the 

requisite information — which not infrequently is true — 

recourse must be had to others who do possess it.” McGrain, 

273 U.S. at 175. Therefore, “the power of inquiry — with 

process to enforce it — is an essential and appropriate auxiliary 

to the legislative function.” Id. at 174. “Without the power to 

investigate — including of course the authority to compel 

testimony, either through its own processes or through judicial 

trial — Congress could be seriously handicapped in its efforts 

to exercise its constitutional function wisely and effectively.” 

Quinn v. United States, 349 U.S. 155, 160–61 (1955); see 

Mazars, 140 S. Ct. at 2031. That constitutional power entitles 
11 

each House to the testimony of a witness and production of 

requested documents in response to a lawful subpoena. 

The subpoena power is potent. Each House of Congress is 

specifically empowered to compel testimony from witnesses 

and the production of evidence in service of its constitutional 

functions, and the recipient of a subpoena is obligated by law 

to comply. 

 It is unquestionably the duty of all citizens to 

 cooperate with the Congress in its efforts to 

 obtain the facts needed for intelligent legislative 

 action. It is their unremitting obligation to 

 respond to subpoenas, to respect the dignity of the 

 Congress and its committees and to testify fully 

 with respect to matters within the province of 

 proper investigation.

Watkins v. United States, 354 U.S. 178, 187–88 (1957); see 

Mazars, 140 S. Ct. at 2036 (quoting Watkins, 354 U.S. at 187). 

The power of each House of Congress to compel witnesses 

to appear before it to testify and to produce documentary 

evidence has a pedigree predating the Founding and has long 

been employed in Congress’s discharge of its primary 

constitutional responsibilities: legislating, conducting 

oversight of the federal government, and, when necessary, 

checking the President through the power of impeachment. 

Congressional subpoenas have their historical basis in the 

“emergence of [the English] Parliament.” Watkins, 354 U.S. at 

188. Congress began using its investigative powers from the 

earliest days of the Republic to investigate national problems 

and probe for possible federal solutions. See Mazars, 140 S. 

Ct. at 2029–30. Yet “[t]he Nation was almost one hundred 

years old before the first case reached [the Supreme] Court to 
12 

challenge the use of compulsory process as a legislative 

device.” Watkins, 354 U.S. at 193. In that case, Kilbourn v. 

Thompson, 103 U.S. 168 (1881), the Supreme Court held that 

the House had “exceeded the limit of its own authority” by 

inquiring into a matter that “could result in no valid legislation 

on the subject to which the inquiry referred.” Id. at 192, 195. 

Congress’s power to issue subpoenas in conjunction with 

legislative investigations was confirmed by the Supreme Court 

in McGrain, 273 U.S. 135, and Sinclair v. United States, 279 

U.S. 263 (1929). “Following these important decisions, . . . 

there was vigorous use of the investigative process by a 

Congress bent upon harnessing and directing the vast economic 

and social forces of the times.” Watkins, 354 U.S. at 195. 

Congress commonly uses subpoenas not only to develop 

legislation but also in furtherance of its oversight of the federal 

government, including the Executive Branch. This subpoena 

power “comprehends probes into departments of the Federal 

Government to expose corruption, inefficiency or waste.” 

Watkins, 354 U.S. at 187. Subject to certain restraints, see, e.g., 

id., “[a] legislative inquiry may be as broad, as searching, and 

as exhaustive as is necessary to make effective the 

constitutional powers of Congress,” Townsend v. United 

States, 95 F.2d 352, 361 (D.C. Cir. 1938). Indeed, the Court 

has recently emphasized that “[u]nless Congress have and use 

every means of acquainting itself with the acts and the 

disposition of the administrative agents of the government, the 

country must be helpless to learn how it is being served.” 

Mazars, 140 S. Ct. at 2033 (quoting United States v. Rumely, 

345 U.S. 41, 43 (1953)). 

The House of Representatives employs its subpoena power 

in service of its constitutional power of impeachment, as the 

Committee’s investigation illustrates. The Constitution vests 

in the House of Representatives the “sole Power of 
13 

Impeachment,” U.S. CONST. art. I, § 2, cl. 5, and thereby 

empowers the House to set in motion a process that may result 

in the removal of the President from Office. To level the grave 

accusation that a President may have committed “Treason, 

Bribery, or other high Crimes and Misdemeanors,” U.S.

CONST. art. II, § 4, the House must be appropriately informed. 

And it cannot fully inform itself without the power to compel 

the testimony of those who possess relevant or necessary 

information. As far back as 1796, George Washington, the 

Nation’s first President, acknowledged that the House may 

compel the President to turn over some Executive Branch 

information if sought as part of an impeachment investigation. 

See Pres. George Washington, Message to the House 

Regarding Documents Relative to the Jay Treaty (Mar. 30, 

1796); see Mazars, 140 S. Ct. at 2029–30. Decades later, 

Congress also issued subpoenas to President Nixon during its 

impeachment investigation of him. See Senate Select Comm. 

on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 

726–27 (D.C. Cir. 1974). 

 The House, then, has a long-recognized right, based in the 

Constitution, to have McGahn appear to testify and produce 

documents. Because each House of Congress delegates its 

power of inquiry to its Committees, which are “endowed with 

the full power of Congress to compel testimony,” Watkins, 354 

U.S. at 201; HOUSE RULES X & XI, cl. 2(m)(1), the Committee 

exercised the House’s subpoena power when it issued a 

subpoena to McGahn. By refusing to testify in response to the 

Committee’s concededly valid subpoena, McGahn has denied 

the Committee something to which it alleges it is entitled by 

law. And because the Committee has alleged the deprivation 

of testimony to which it is legally entitled, its asserted injury is 

concrete. 
14 

In other contexts, as well, the Supreme Court has held that 

when a person seeks to obtain information the government is 

required to disclose, the denial of the information is a concrete 

injury for standing purposes. For example, in FEC v. Akins, 

524 U.S. 11 (1998), the Court held that the plaintiffs had 

suffered an Article III injury “consist[ing] of their inability to 

obtain information . . . that, on their view of the law,” they 

were legally entitled to. Id. at 21. Similarly, in Public Citizen 

v. DOJ, 491 U.S. 440 (1989), the Court held that plaintiffs 

incurred an injury sufficient to support standing when they 

were denied access to agency records to which they were 

legally entitled. Id. at 449. Akins and Public Citizen thereby 

support the principle that the denial of information to which the 

plaintiff claims to be entitled by law establishes a quintessential 

injury in fact. See Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 

2008). Here, each House of the Congress has a constitutionally 

grounded entitlement to obtain information, namely McGahn’s 

testimony, in carrying out its constitutional functions. 

McGahn’s denial of the information to which the Committee 

alleges it is entitled results in informational injury of the kind 

that the Supreme Court held supported standing in Akins and 

Public Citizen. 

By analogy, private parties undeniably have standing to 

seek judicial enforcement of compliance with subpoenas. And 

Courts have regularly entertained lawsuits in which a 

legislative body seeks to enforce a subpoena against a private 

party. See, e.g., In re Application of Senate Permanent 

Subcomm. on Investigations, 655 F.2d 1232 (D.C. Cir. 1981); 

Senate Select Comm., 498 F.2d 725; Senate Permanent Comm. 

v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016). Further, the 

OLC, in opinions never withdrawn, has stated that a House of 

Congress can file a civil action to seek enforcement of its 

subpoenas. See Response to Congressional Requests for 

Information Regarding Decisions Made Under the 
15 

Independent Counsel Act, 10 Op. O.L.C. 68, 83 (1986) 

(“Cooper Opinion”); Prosecution for Contempt of Congress of 

an Executive Branch Official Who Has Asserted a Claim of 

Executive Privilege, 8 Op. O.L.C. 101, 137 (1984) (“Olson 

Opinion”). A legislative body, then, generally has standing to 

sue to obtain information it claims it has been wrongfully 

denied, at least when a private party is withholding 

information. McGahn maintains the result is different when 

the defendant withholding the information is another branch of 

government, but the reasons he offers do not explain why the 

identity of the defendant should make a difference for purposes 

of standing, which is focused on whether the plaintiff is the 

proper party to bring the lawsuit. See Part III infra. 

In sum, by virtue of the House’s long-recognized subpoena 

power, the Committee was entitled to McGahn’s testimony 

pursuant to its duly issued subpoena, which he has never 

challenged, and the specific information the Committee would 

learn therefrom in connection with carrying out its 

constitutional duties. By defying the subpoena, McGahn has 

deprived the Committee of that testimony and that deprivation 

is a concrete injury. 

B. 

The Committee’s asserted injury must be not only concrete 

but also particularized. “For an injury to be ‘particularized,’ it 

‘must affect the plaintiff in a personal and individual way.’” 

Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). 

An injury is not particularized if it is “undifferentiated” and 

“‘common to all members of the public.’” United States v. 

Richardson, 418 U.S. 166, 177 (1974) (quoting Ex parte Levitt, 

302 U.S. 633, 634 (1937)). The injury, in short, must be 

specific to the plaintiff. 
16 

Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 

1945 (2019), provides some guidance on particularization 

when a legislative institution seeks to show injury in fact. In 

that case, the Virginia House of Delegates sought to appeal the 

judicial invalidation of a redistricting plan in whose enactment 

it had participated. Id. at 1950. But the Virginia legislature 

was composed of two houses: the Senate and the House of 

Delegates. See id. at 1949. And the interest that the House of 

Delegates asserted — in defending the validity of a 

redistricting plan that it had approved — was shared with the 

Senate. See id. at 1953. Thus, to the extent that judicial 

invalidation of legislation constituted an injury in fact, the 

House of Delegates as one half of a bicameral legislature was 

not an appropriate party to vindicate that injury. Rather, to 

challenge the judicial invalidation, the Senate and House of 

Delegates would have needed to act together, akin to the 

circumstances of Arizona State Legislature, “in which the 

Court recognized the standing of the Arizona House and Senate 

— acting together — to challenge a referendum.” Id. at 1953. 

What undermined the House of Delegates’ attempt to show 

standing was the “mismatch between the body seeking to 

litigate and the body to which the relevant [state] constitutional 

provision allegedly assigned . . . authority.” Id. Although not 

explicitly couched in terms of particularization, the Court’s 

focus on “mismatch” is an inquiry into whether the claimed 

injury is personal to the plaintiff or else shared by a larger 

group of which the plaintiff is only a component — in other 

words, whether the injury is particularized. 

The Committee’s asserted injury is particularized because 

the Committee “is an institutional plaintiff asserting an 

institutional injury,” Ariz. State Legislature, 135 S. Ct. at 2664. 

There is no “mismatch” here, Va. House of Delegates, 139 S. 

Ct. at 1953: the body whose informational and investigative 

prerogatives have been infringed is the body authorized by 
17 

House Resolution 430 to bring the present lawsuit. The power 

to issue a subpoena “may be exercised by a committee acting . 

. . on behalf of one of the Houses” of Congress. Eastland v. 

U.S. Servicemen’s Fund, 421 U.S. 491, 505 (1975). The full 

House of Representatives has delegated its subpoena authority 

to its Committees, empowering each Committee “to require, by 

subpoena or otherwise, the attendance and testimony of such 

witnesses and the production of such books, records, 

correspondence, memoranda, papers, and documents as it 

considers necessary.” HOUSE RULE XI, cl. 2(m)(1). A House 

Committee that issues a subpoena, including the Committee on 

the Judiciary, thus exercises the subpoena power of the full 

House. 

The House Judiciary Committee has issued the McGahn 

subpoena on behalf of, and with the authorization of, the full 

House of Representatives. There is no dispute that the House 

as an institution may unilaterally obtain what its authorized 

Committee seeks to compel here: McGahn’s testimony. The 

Senate naturally need not sign off on the House’s subpoenas; 

so it need not join efforts to vindicate them in the courts. 

Because the Committee exercised the investigative authority of 

the full House, the Committee was entitled to McGahn’s 

testimony. Denial of his testimony is a deprivation that is a 

concrete injury and because the plaintiff is the distinctly injured 

party, the injury is particularized. 

The House of Representatives has a unique interest under 

the Constitution in vindicating this injury. The Constitution 

places in the House sole responsibility to determine whether to 

file articles of impeachment against the President. U.S.CONST. 

art. 1, § 2, cl. 5. The subpoena power of the House exercised 

by the Committee in subpoenaing McGahn relates directly to 

that responsibility. The House’s other constitutional functions 

of legislation and oversight are also handicapped by McGahn’s 
18 

defiance of the subpoena, as explained in the Nadler 

Memorandum. Because of delegations pursuant to House 

Rules and passage of a House Resolution authorizing the 

present lawsuit, the Committee is an appropriate plaintiff to 

vindicate that injury. 

C. 

 The remaining two prongs of the traditional standing test 

— that the injury is “fairly traceable to the challenged conduct” 

and “is likely to be redressed by a favorable [judicial] 

decision,” Va. House of Delegates, 139 S. Ct. at 1950 — are 

readily met. The injury that the Committee asserts has been 

directly caused by McGahn’s conduct that it seeks to have 

enjoined. McGahn’s refusal to testify before the Committee in 

response to a valid subpoena is responsible for the denial of 

information to which the Committee claims it is entitled and 

the resulting handicapping of the House’s discharge of its 

constitutional obligations that the Committee now seeks to 

remedy in this lawsuit. 

 The injury is also likely to be redressed by a favorable 

judicial decision. The Committee’s lawsuit seeks “declaratory 

and injunctive relief” “[d]eclar[ing] that McGahn’s refusal to 

appear before the Committee in response to the subpoena 

issued to him was without legal justification” and “ordering 

McGahn to appear and testify forthwith before the 

Committee.” Compl. at 53. If the court grants the Committee 

that relief, the deprivation that the Committee has suffered will 

be remedied. The Committee has therefore demonstrated 

redressability. 

 
19 

III. 

 The present lawsuit, brought by a Committee of the House 

of Representatives against a former White House Counsel, 

implicates considerations not always present in a standing 

dispute. McGahn contends that under Raines v. Byrd, 521 U.S. 

811, separation of powers analysis prevents judicial airing and 

resolution of interbranch informational disputes like this one. 

Additionally, he views Raines itself, in particular its emphasis 

on history, to bar the present lawsuit. Each line of argument 

asserts a structural barrier to judicial involvement in 

informational disputes between the elected branches. With 

notable exceptions dating back at least to the 1970s, Congress 

and the Executive have “managed for over two centuries to 

resolve [informational] disputes among themselves.” Mazars, 

140 S. Ct. at 2031. That “longstanding practice . . . imposes on 

us a duty of care to ensure that we not needlessly disturb ‘the 

compromises and working arrangements that [those] branches 

. . . themselves have reached.’” Id. (second and third alterations 

in original) (quoting NLRB v. Noel Canning, 573 U.S. 513, 

524–26 (2014)). Our analysis demonstrates that holding the 

Committee has Article III standing involves no such 

disturbance. 

A. 

“[T]he law of Art[icle] III standing is built on a single 

basic idea — the idea of separation of powers.” Raines, 521 

U.S. at 820 (quoting Allen, 468 U.S. at 752). In turn, “federal 

courts may exercise power . . . only when adjudication is 

‘consistent with a system of separated powers,’” Allen, 468 

U.S. at 752 (quoting Chi. & Grand Trunk Ry. Co. v. Wellman, 

143 U.S. 339, 345 (1892)). The court’s standing analysis has 

accounted for and ensured the federal judiciary’s limited 

constitutional role, and the court does not act outside its 
20 

“properly limited . . . role,” Warth, 422 U.S. at 498, in holding 

that the Committee has standing. But McGahn maintains that 

in exercising jurisdiction over the present lawsuit and resolving 

whether he is required to testify, the court takes sides in an 

interbranch dispute, aggrandizes Congress at the expense of the 

Executive, or otherwise disrupts the balance of powers between 

the Branches. To the contrary, the judiciary, in exercising 

jurisdiction over the present lawsuit, does not arrogate any new 

power to itself at the expense of either of the other branches but 

rather plays its appropriate constitutional role. 

1. 

 At the outset, there is reason for some skepticism 

regarding the foundation of McGahn’s contention that all of the 

separation of powers objections he raises bear on whether the 

Committee has Article III standing. After all, as the Supreme 

Court has long emphasized, “the requirement of standing 

‘focuses on the party seeking to get his complaint before a 

federal court and not on the issues he wishes to have 

adjudicated.’” Valley Forge Christian Coll. v. Ams. United for 

Separation of Church & State, Inc., 454 U.S. 464, 484 (1982) 

(quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). The 

statement in Raines, 521 U.S. at 820, that separation of powers 

was the “single basic idea” on which standing is based, 

appropriately reflects the “overriding and time-honored 

concern about keeping the Judiciary’s power within its proper 

constitutional sphere.” It does not mean, as McGahn 

maintains, that merely invoking separation of powers 

principles defeats standing in interbranch disputes like this one. 

Not every separation of powers concern — including some that 

McGahn raises here — implicates the separation of powers 

principle underlying the standing doctrine, namely confining 

the judiciary to its proper role. And in any event, the separation 

of powers objections McGahn raises do not withstand analysis 
21 

and are therefore unpersuasive. Moreover, other separation of 

powers doctrines not before the en banc court, including the 

non-justiciability of political questions, separately address 

whether the court should decline to reach the merits of 

interbranch disputes. See Baker v. Carr, 369 U.S. 186 (1962). 

McGahn points to Chenoweth v. Clinton, 181 F.3d 112 

(D.C. Cir. 1999), where this court stated that it understood itself 

to be “require[d] . . . to merge our separation of powers and 

standing analyses.” Id. at 116. On its face, that statement 

appears to support the position that all of the separation of 

powers objections that McGahn raises bear on the issue of the 

Committee’s standing. Yet in Chenoweth, the court was 

considering only whether individual Members of the House of 

Representatives had standing to sue the President to enjoin the 

implementation of a Presidential initiative. The court stated 

that in the past it had dismissed such individual legislator 

lawsuits not on standing grounds but rather on the basis of 

“‘circumscribed equitable discretion,’” under which “the court 

would decline to hear the complaint of a Congressman who 

‘could obtain substantial relief from his fellow legislators.’” 

Id. at 114 (quoting Riegle v. Federal Open Market Comm., 656 

F.2d 873, 881 (D.C. Cir. 1981)). The separation of powers 

consideration that the court viewed as being a necessary part of 

its standing analysis was the need for the judiciary to “avoid 

‘meddl[ing] in the internal affairs of the legislative branch,’” 

id. at 116 (alteration in original) (quoting Moore v. U.S. House 

of Representatives, 733 F.2d 946, 956 (D.C. Cir. 1984)), by 

entertaining a lawsuit by an individual legislator whose “rights 

[could] be vindicated by congressional repeal of the 

[offending] statute,’” id. at 115 (alterations in original) 

(quoting Moore, 733 F.2d at 956). It is this limited separation 

of powers concern, in the context of individual legislator suits 

and not implicated here, that Chenoweth stated must be part of 

the standing analysis. 
22 

So too in Arizona State Legislature, the Supreme Court 

stated that “a suit between Congress and the President would 

raise separation-of-powers concerns absent” in that case, which 

involved a state legislative body. Ariz. State Legislature, 135 

S. Ct. at 2665 n.12. The Court did not hold that such concerns 

should be considered separately to preclude a legislative body’s 

lawsuit against the Executive Branch but rather emphasized its 

directive from Raines for a standing analysis that is 

“‘especially rigorous when reaching the merits of the dispute 

would force [the Court] to decide whether an action taken by 

one of the other two branches of the Federal Government was 

unconstitutional.’” Id. (quoting Raines, 521 U.S. at 819–20). 

Because the Committee has identified a concrete injury, 

namely a former Executive Branch official’s defiance of a valid 

subpoena, and is the institution duly authorized to maintain the 

present lawsuit, the obstacles to suits by individual legislators 

are inapplicable. 

This court, however, need not resolve whether Raines,

Chenoweth, or Arizona State Legislature stands for the 

proposition that any objection that falls within the broad ambit 

of “separation of powers” may defeat a plaintiff’s standing 

because none of McGahn’s separation of powers objections to 

the Committee’s standing is persuasive. 

The Supreme Court’s recent decision in Trump v. Mazars 

USA, LLP elaborates on the separation of powers concerns 

where Congress and the President are at odds over information. 

The Court stated because “Congress and the President have an 

ongoing institutional relationship as the ‘opposite’ and ‘rival’ 

political branches established by the Constitution, . . . 

congressional subpoenas directed at the President differ 

markedly” from those issued to private parties. Mazars, 140 S. 

Ct. at 2033–34 (quoting FEDERALIST NO. 51 (J. Madison)). 
23 

That is, “congressional subpoenas for the President’s 

information unavoidably pit the political branches against one 

another” and represent “a clash between rival branches of 

government over [testimony] of intense political interest for all 

involved.” Id. at 2034. Mazars addressed the merits of a 

challenge to the validity of a congressional subpoena, not the 

plaintiff’s standing, but the concerns about the adjudication of 

such interbranch disputes expressed in Mazars may be 

implicated here. Such concerns do not bar the Committee’s 

standing, however. Much of the Supreme Court’s attention 

was directed to the implications of a “limitless” congressional 

subpoena power that “would transform the ‘established 

practice’ of the political branches.” Id. at 16 (quoting Noel 

Canning, 573 U.S. at 524). This court explains in responding 

to McGahn’s separation of powers objections, see Part III.A.2 

infra, why allowing the Committee to proceed with the present 

lawsuit would preserve, rather than disrupt, that historical 

practice of accommodation. Furthermore, McGahn has never 

challenged the validity of the Committee’s subpoena. 

2. 

McGahn begins his separation of powers objections by 

maintaining that if the Committee has standing, then Congress 

will have been provided “a blueprint for extensive expansion 

of the legislative power’ by allowing Congress to ‘arrogate 

power to itself,’” empowering Congress to unilaterally resolve 

informational disputes without engaging in the historical 

practice of negotiating informational disputes with the 

Executive Branch. Appellant Br. at 24–25 (quoting Free Enter. 

Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 

500 (2010)). Courts must take care not to disrupt the 

“longstanding practice” of accommodation between the 

political branches. Mazars, 140 S. Ct. at 2031. But there is no 

congressional “arrogation” of power here and no threat that the 
24 

court’s decision will disrupt the historical practice of 

accommodation. To the contrary, permitting Congress to bring 

this lawsuit preserves the power of subpoena that the House of 

Representatives is already understood to possess. Rather, it is 

McGahn’s challenge to the Committee’s standing that seeks to 

alter the status quo ante and aggrandize the power of the 

Executive Branch at the expense of Congress. 

For more than forty years this circuit has held that a House 

of Congress has standing to pursue a subpoena enforcement 

lawsuit in federal court. See Comm. on Oversight & Gov’t 

Reform v. Holder, 979 F. Supp. 2d 1, 20–22 (D.D.C. 2013); 

Comm. on the Judiciary, U.S. House of Representatives v. 

Miers, 558 F. Supp. 2d 53, 68–78 (D.D.C. 2008); United States 

v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976); Senate Select 

Comm., 498 F.2d at 728; see also Part III.B.2 infra. McGahn 

does not suggest that any court, prior to the vacated panel 

majority in the present case, has ever ruled to the contrary. 

Congress and the Executive Branch have long operated under 

the assumption that Congress may, if necessary, seek 

enforcement of a subpoena in federal court. 

Accepting McGahn’s position that the Committee lacks 

standing would significantly curtail the possibility of 

accommodation. That outcome would upset settled 

expectations and dramatically alter bargaining positions in the 

accommodation process over informational disputes in the 

future. Without the possibility of enforcement of a subpoena 

issued by a House of Congress, the Executive Branch faces 

little incentive to reach a negotiated agreement in an 

informational dispute. Indeed, the threat of a subpoena 

enforcement lawsuit may be an essential tool in keeping the 

Executive Branch at the negotiating table. For example, 

President Clinton and a Senate subcommittee “[e]ventually . . . 

reached an agreement” over an informational dispute only after 
25 

“a Senate threat to seek judicial enforcement of the subpoena.” 

Mazars, 140 S. Ct. at 2030. Without that possibility, Presidents 

could direct widescale non-compliance with lawful inquiries 

by a House of Congress, secure in the knowledge that little can 

be done to enforce its subpoena — as President Trump did here. 

See Letter from Pat A. Cipollone, White House Counsel, to 

Hon. Nancy Pelosi, Speaker of the House, et al., at 7 (Oct. 8, 

2019). Traditional congressional oversight of the Executive 

Branch would be replaced by a system of voluntary 

Presidential disclosures, potentially limiting Congress to 

learning only what the President wants it to learn. And the 

power of impeachment, the “essential check . . . upon the 

encroachments of the executive,” FEDERALIST NO. 66 (A. 

Hamilton), would be diminished because a President would be 

unlikely to voluntarily turn over information that could lead to 

impeachment. 

Neither does holding that the Committee has Article III 

standing displace the historical practice of accommodation, as 

McGahn maintains. Litigation, as the General Counsel to the 

Committee emphasized to this court during oral argument, is 

not a preferred option of politicians. See En Banc Oral Arg. 

Tr. at 121–22. The subpoena to McGahn was issued over 15 

months ago and litigation over its enforcement continues. A 

Congress lasts for only two years, see U.S. CONST. art. I, § 2, 

cl. 1; id. amend. XX, § 1, and the current Congress may expire 

before the House of Representative can complete the present 

litigation and obtain judicial enforcement of its subpoena. 

Despite the Committee’s subpoena of McGahn in regard to its 

investigation pursuant to the House’s “sole Power of 

Impeachment,” U.S. CONST. art. I, § 2, cl. 5, and its continuing 

efforts to reach accommodations for McGahn to testify, the 

President refused to permit McGahn to testify, see Cipollone 

Letter of May 20, 2019, to Chairman Nadler, at 1–2, and 

subsequently refused to allow any member of the Executive 
26 

Branch to cooperate with the Committee’s investigation, see 

Cipollone Letter of Oct. 8, 2019, to Speaker Pelosi, at 7. In 

such circumstances, where there is an impasse contrary to 

traditional norms, no practicable alternative to litigation exists. 

That result stems not from the court’s holding that the 

Committee has standing to seek judicial enforcement of its 

subpoena, but from a rare breakdown in the accommodation 

process itself. The parties’ historical responsibility to engage 

in negotiations to resolve their interbranch informational 

disputes, see United States v. AT&T, 567 F.2d 121, 127 (D.C. 

Cir. 1977), remains unaffected by holding that the Committee 

has Article III standing. 

McGahn next maintains that resolving this interbranch 

dispute would constitute a judicial arrogation of power at the 

expense of Congress and the Executive, which ought to resolve 

it themselves. “In order to remain faithful to [the federal 

government’s] tripartite structure, the power of the Federal 

Judiciary may not be permitted to intrude upon the powers 

given to the other branches.” Spokeo, 136 S. Ct. at 1547. But 

by permitting the Committee to bring a lawsuit in federal court 

to enforce its subpoena, the court is not enlarging the power or 

prerogatives of the federal judiciary. To the contrary, subpoena 

enforcement is a “familiar judicial exercise,” Zivotofsky ex rel. 

Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012), a not unusual 

corollary to civil litigation. The Federal Rules of Civil 

Procedure authorize a party to issue, under the auspices of the 

court, a subpoena ordering testimony, document production, or 

production of other tangible objects. See FED. R. CIV. P. 45(a). 

Upon objection by the recipient of such a civil subpoena that 

compliance would require the disclosure of privileged matter, 

a motion requesting that the court quash the subpoena would 

be available. See FED. R. CIV. P. 45(e)(2). The court must 

quash or modify the subpoena if it determines that the subpoena 

“requires disclosure of privileged or other protected matter.” 
27 

FED. R. CIV. P. 45(d)(3). When the party has no valid grounds 

for objecting, the court may enforce the subpoena by holding 

in contempt a person who refuses to obey it. See FED. R. CIV.

P. 45(g). Thus, the precise function that the Committee asks 

the court to perform, namely determining whether McGahn has 

a valid excuse for refusing to appear and testify before the 

Committee and compelling his compliance with its subpoena if 

he does not, is a traditional feature of civil litigation in federal 

court. 

Further, contrary to McGahn’s assertion, the court does 

not impermissibly take sides in an interbranch dispute by 

holding that the Committee has standing and resolving whether 

or not McGahn is required to appear and testify. What the 

Committee seeks through its subpoena enforcement lawsuit is 

resolution of a discrete and limited legal issue: whether 

McGahn must appear before it to testify, absent invocation of 

a valid privilege that would excuse his refusal to answer 

specific questions. Given McGahn’s previous role as a close 

presidential advisor, it is plausible that Executive privilege 

could be properly asserted in response to at least some of the 

Committee’s questions, depending on their substance. See 

generally United States v. Nixon, 418 U.S. 683, 705 (1974). 

Such a potentially available privilege is a powerful protection 

of the President’s interest in Executive Branch confidentiality, 

and it remains unaffected by an order compelling McGahn to 

appear and testify before the Committee. Consequently, 

entertaining the Committee’s subpoena enforcement lawsuit 

does not raise the specter that the judiciary is taking sides in an 

interbranch dispute. A court is not normally understood to be 

taking sides when it enforces a subpoena in civil litigation, and 

McGahn points to nothing to support a contrary conclusion 

here. 
28 

McGahn also maintains that exercising jurisdiction would 

impede the Executive in the performance of its constitutional 

responsibilities because only the Executive Branch is 

constitutionally empowered to “conduct[] civil litigation in the 

courts of the United States for vindicating public rights,” 

Buckley v. Valeo, 424 U.S. 1, 140 (1976). The traditional 

means of enforcing congressional subpoenas, according to 

McGahn, has been through the criminal contempt statute, 2 

U.S.C. § 192, which can result in imprisonment of up to one 

year and a fine of up to $1,000. When a House of Congress 

holds a person in contempt, the recalcitrant subpoena recipient 

may be referred to the Department of Justice for criminal 

prosecution. McGahn asserts that by attempting to enforce its 

subpoena directly in federal court and circumventing the 

Executive’s prosecutorial role, the House infringes on the 

Executive’s exclusive authority to enforce the law. Yet the 

OLC has repeatedly opined that the criminal contempt statute 

does not and could not apply to a close Presidential advisor. 

See, e.g., Testimonial Immunity Before Congress of the Former 

Counsel to the President, 2019 WL 2315338, at *14 (O.L.C. 

May 20, 2019); Whether the Department of Justice May 

Prosecute White House Officials for Contempt of Congress, 32 

Op. O.L.C. 65, 68–69 (2008) Cooper Opinion, 10 Op. O.L.C. 

at 83; Olson Opinion, 8 Op. O.L.C. at 142; see also Part III.B.2 

infra. So understood, the Department almost certainly would 

not pursue prosecution of McGahn. Moreover, although the 

Supreme Court in Buckley pointed to the constitutional 

principle that law enforcement is the exclusive province of the 

Executive Branch, the Court distinguished between the 

Executive Branch’s law enforcement authority and Congress’s 

“powers . . . essentially of an investigative and informative 

nature.” Buckley, 424 U.S. at 137. The argument that the 

present lawsuit would circumvent the President’s performance 

of his constitutional law enforcement responsibilities is 

misplaced. 
29 

McGahn maintains as well that assuming jurisdiction here 

threatens to undermine the judiciary itself. Judicial 

“intervention” in an “interbranch dispute,” he argues, could 

“risk damaging the public confidence that is vital to the 

functioning of the Judicial Branch.” Appellant Supp. Br. at 2 

(quoting Raines, 521 U.S. at 833 (Souter, J., joined by 

Ginsburg, J., concurring in the judgment)). That risk is 

minimal here not only because the Committee is a proper 

plaintiff, but also because the issue that the Committee asks the 

court to decide can be answered by applying established legal 

doctrines without the court weighing in on the political dispute 

between the House and the President. Adjudication of whether 

McGahn must appear and testify in compliance with the 

Committee’s concededly valid subpoena does not “raise[] [the] 

specter of judicial readiness to enlist on one side of a political 

tug-of-war,” Raines, 521 U.S. at 834 (Souter, J., concurring in 

the judgment). Although the present lawsuit unfolded in the 

context of a highly charged political battle over whether to 

impeach the President, the court “has a responsibility to decide 

cases properly before it, even those it ‘would gladly avoid,’” 

and “courts cannot avoid their responsibility merely ‘because 

the issues have political implications.’” Zivotofsky, 566 U.S. 

at 194, 196 (first quoting Cohens v. Virginia, 19 U.S. (6 Wheat) 

264, 404 (1821), then quoting INS v. Chadha, 462 U.S. 919, 

943 (1983)). Once the Committee has met its burden to show 

that it has Article III standing to seek judicial enforcement of 

its subpoena, the court may not avoid its responsibility to 

decide the case because of its political context or consequences. 

McGahn maintains too that courts lack the authority to 

“adjudicate disputes exclusively between the political branches 

even where no individual party’s rights are at stake.” Appellant 

Supp. Br. at 16. That objection is foreclosed by Raines and 

Arizona State Legislature. In Raines, the Court stated that “the 
30 

institutional injury [plaintiffs] allege is wholly abstract and 

widely dispersed.” Raines, 521 U.S. at 829. By identifying 

those two defects with the alleged institutional injury, the Court 

left open the possibility that some institutional injuries would 

be sufficient to confer a legislative body standing. In other 

words, if no institutional injury to a legislative body would be 

adequate to confer standing, then the Court in Raines would not 

have bothered to identify shortcomings with the specific 

institutional injury alleged, namely, that it was “wholly abstract 

and widely dispersed.” The Court need only have stated that 

the alleged injury was an institutional one incurred by a 

legislative body and left it at that. In Arizona State Legislature 

v. Arizona Independent Redistricting Commission, 135 S. Ct. 

2652, the Supreme Court held that the Arizona State 

Legislature had incurred an institutional injury where it sought 

to challenge as unconstitutional a ballot provision vesting 

redistricting authority in an independent agency. Again, the 

Court’s holding precludes the view that there is standing only 

when an individual right is implicated. See also Sixty-Seventh 

Minn. State Senate v. Beens, 406 U.S. 187 (1972). 

B. 

 McGahn additionally advances an interpretation of the 

Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811, to 

require the conclusion that the Committee lacks Article III 

standing. He ignores Raines’s limits. The Supreme Court has 

given clear direction that Raines is a narrow case about the 

standing only of individual legislators. Nevertheless, McGahn 

relies on Raines to argue that the present dispute is not one 

“traditionally thought to be capable of resolution through the 

judicial process,” Raines, 521 U.S. at 819. The history of 

judicial adjudication of such disputes undermines McGahn’s 

conclusion. 
31 

1. 

In Raines, six Members of Congress sued the Director of 

the U.S. Office of Management and Budget to challenge the 

constitutionality of the Line Item Veto Act, which authorized 

the President to cancel spending provisions in enacted 

appropriations statutes. Id. at 814–15. The Supreme Court 

held that the individual members of Congress lacked standing. 

Id. at 829. The Court has since clarified that Raines is a 

decision narrowly concerned with the standing of individual 

Members of Congress. In Arizona State Legislature, the Court 

explained that “[i]n Raines, [the] Court held that six individual 

Members of Congress lacked standing to challenge the Line 

Item Veto Act,” “holding specifically and only that ‘individual 

members of Congress [lack] Article III standing.’” Ariz. State 

Legislature, 135 S. Ct. at 2664 (third alteration in original) 

(quoting Raines, 521 U.S. at 813–14). And in Virginia House 

of Delegates v. Bethune-Hill, 139 S. Ct. 1945, the Supreme 

Court referenced Raines in deciding that a single house of a 

bicameral state legislature did not have standing to appeal 

judicial invalidation of a state redistricting plan, relying on 

Raines only for the narrow proposition that “individual 

members lack standing to assert the institutional interests of a 

legislature.” Id. at 1953. 

The Supreme Court has not stated that Raines would bar a 

lawsuit brought by an authorized legislative institution 

asserting an institutional injury. See Raines, 521 U.S. at 829–

30. Guided by Arizona State Legislature and by Raines itself, 

this court has understood Raines to concern the standing of 

individual members of a legislative body and relied on it to 

hold that unauthorized legislators lack standing to sue the 

President to vindicate injuries to the legislative bodies of which 

they are a part. See Blumenthal v. Trump, 949 F.3d 14 (D.C. 

Cir. 2020); Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000); 
32 

Chenoweth, 181 F.3d 112. All of those cases involved 

individual unauthorized legislators’ attempts to sue the 

President. In Blumenthal, the court stated that “Raines is our 

starting point when individual members of Congress seek 

judicial remedies.” Blumenthal, 949 F.3d at 19. The court 

cited approvingly “[t]he Supreme Court’s recent summary 

reading of Raines that ‘individual members’ of the Congress 

‘lack standing to assert the institutional interests of a 

legislature’ in the same way ‘a single House of a bicameral 

legislature lacks capacity to assert interests belonging to the 

legislature as a whole.’” Id. (quoting Va. House of Delegates, 

139 S. Ct. at 1953–54). And in Campbell the court treated 

Raines as a case about individual legislator standing, stating 

that “[t]he question whether congressmen have standing in 

federal court to challenge the lawfulness of actions of the 

executive was answered, at least in large part, in the Supreme 

Court’s recent decision in Raines v. Byrd.” Campbell, 203 F.3d 

at 20. 

Arizona State Legislature and Virginia House of Delegates

as well as this court’s precedent confirm that Raines stands for 

the proposition that whereas a legislative institution may 

properly assert an institutional injury, an individual member of 

that institution generally may not. McGahn would have this 

court disregard the clear limit that the Supreme Court itself has 

placed on Raines’s reach, something this lower court may not 

do. 

2. 

Finally, McGahn contends that the reasoning of Raines

defeats the standing of an entire House of Congress. Taken on 

its own terms, Raines does not require the court to hold that the 

Committee lacks Article III standing. In Raines, the Supreme 

Court identified four considerations on which it relied in 
33 

holding the individual Members of Congress lacked standing: 

(1) the individual plaintiffs alleged an institutional injury that 

was “wholly abstract and widely dispersed”; (2) plaintiffs’ 

“attempt to litigate th[eir] dispute at this time [wa]s contrary to 

historical experience”; (3) the plaintiffs “ha[d] not been 

authorized to represent their respective Houses of Congress . . 

. , and indeed both Houses actively oppose[d] their suit”; and 

(4) dismissing the lawsuit “neither deprive[d] Members of 

Congress of an adequate remedy . . . , nor foreclose[d] the Act 

from constitutional challenge.” Raines, 521 U.S. at 829. The 

Court added, moreover, that “[w]hether the case would be 

different if any of these circumstances were different we need 

not now decide.” Id. at 829–30. None of the four 

considerations is present here. 

In Part II supra, the court explained that the Committee’s 

injury is concrete and particularized and thus neither abstract 

nor widely dispersed. The Committee, unlike the unauthorized 

individual legislators in Raines, was authorized by House 

Resolution 430 to bring the present lawsuit to enforce its 

subpoena. And the OLC has twice opined that a civil 

enforcement suit is the only practicable way that a House of 

Congress may enforce a subpoena against a current or former 

Executive Branch official asserting Executive privilege, 

because neither subpoena enforcement alternative — 

prosecution by the Department for violation of the criminal 

contempt statute or detention by the House pursuant to its 

inherent contempt authority — is practicable. See Cooper 

Opinion, 10 Op. O.L.C. at 83; Olson Opinion, 8 Op. O.L.C. at 

140, 142. The criminal contempt statute is not available to 

vindicate the House’s injury because the “contempt of 

Congress statute does not require and could not constitutionally 

require a prosecution” of an Executive Branch official who 

defies a congressional subpoena on the basis of Executive 

privilege “or even . . . a referral to a grand jury of the facts 
34 

relating to the alleged contempt.” Olson Opinion, 8 Op. O.L.C. 

at 142. The alternative, detaining McGahn pursuant to the 

House’s inherent contempt authority, is similarly 

impracticable. Because Congress has not exercised its inherent 

contempt authority against an Executive Branch official since 

1917, “it seems most unlikely that Congress would dispatch the 

Sergeant-at-Arms to arrest and imprison an Executive Branch 

official who claimed executive privilege.” Cooper Opinion, 10 

Op. O.L.C. at 86. The prospect that the House will direct its 

Sergeant at Arms to arrest McGahn is vanishingly slim so long 

as a more peaceable judicial alternative remains available. 

McGahn emphasizes the historical analysis in Raines and 

concludes that because federal courts have not historically 

entertained congressional subpoena enforcement lawsuits, the 

Committee lacks standing. There are serious flaws to his 

argument, not the least of which is that the Court’s discussion 

of history in Raines informed its conclusion that individual 

legislator plaintiffs lacked standing, but did not append to the 

three-pronged standing analysis an entirely distinct historical 

prong. 

Nor does the relevant historical practice support 

McGahn’s position. For more than forty years this circuit has 

acknowledged that defiance of a subpoena issued by a House 

of Congress constitutes an institutional injury in fact that is 

judiciary remediable. In Senate Select Committee on 

Presidential Campaign Activities v. Nixon, 498 F.2d 725, the 

en banc court declined to enforce a Senate Committee 

subpoena duces tecum served on the President for production 

of the “Nixon tapes.” In reaching the merits the court observed 

without disagreement that the district court had rejected the 

President’s contention that the lawsuit was a non-justiciable 

interbranch conflict. See id. at 728. “Finding the reasoning of 

this court in Nixon v. Sirica, which concerned a grand jury 
35 

subpoena, ‘equally applicable to the subpoena of a 

congressional committee,’ the [d]istrict [c]ourt held that, under 

that case and the relevant Supreme Court precedent, the issues 

presented to it were justiciable.” Id. (quoting Senate Select 

Comm. on Presidential Campaign Activities v. Nixon, 370 F. 

Supp. 521, 522 (D.D.C. 1974)). This court, satisfied with that 

analysis, proceeded to address the merits. See id. at 728–29. 

This court revisited a similar issue two years later in 

United States v. AT&T, 551 F.2d 384. The United States sued 

to enjoin AT&T from complying with a congressional 

Committee subpoena on national security grounds. The 

President had directed AT&T, “as an agent of the United 

States, to respectfully decline to comply with the Committee 

subpoena,” id. at 387, and the House of Representatives had 

intervened as a defendant to represent its interest in AT&T’s 

compliance with the subpoena. The court characterized the 

case as a “portentous clash between the executive and 

legislative branches,” id. at 385, and undertook a more 

extensive jurisdictional analysis than it had in Senate Select 

Committee. It concluded 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. The court held that “[i]t is clear 

that the House as a whole has standing to assert its 

investigatory power.” Id. at 391. 

Contrary to McGahn’s position that the relative recency of 

this historical practice renders it irrelevant, historical practice 

is constitutionally significant even when it does not extend as 

far back into the past as the Founding. Interpreting the Recess 

Appointment Clause of the Constitution, the Supreme Court 

stated in NLRB v. Noel Canning, 573 U.S. 513, that “in 

interpreting the Clause, we put significant weight upon 
36 

historical practice,” and that “precedent[] show[s] that this 

Court has treated practice as an important interpretive factor 

even when the nature or longevity of that practice is subject to 

dispute, and even when that practice began after the founding 

era.” Id. at 524–26; see id. at 525–26 (collecting cases). 

McGahn’s narrow view of relevant history is at odds with this 

recent pronouncement of the Supreme Court in the context of 

the constitutional separation of powers. 

In fact, the relevant history includes a long tradition of 

Presidential cooperation with the Legislative Branch 

exercising its constitutional responsibilities. Although there 

have been relatively few instances of interbranch subpoena 

enforcement litigation, the history of Presidential cooperation 

has meant that there have been few occasions necessitating 

resort to the courts. The Committee explains: “[E]arly 

Presidents overwhelmingly complied with Congressional 

inquiries, reflecting their understanding that they had a 

constitutional obligation to cooperate.” Appellee Supp. Br. at 

14; see Mazars, 140 S. Ct. at 2031. The Presidents and the 

Houses of Congress traditionally have been able to resolve 

disputes over requests for Executive Branch documents and 

testimony. Even in pitched disputes between the branches, 

each branch traditionally has displayed respect for the 

constitutional prerogatives of the other branch and responded 

accordingly. See Appellee Supp. Br. at 14–18. The apparently 

unprecedented categorical direction by President Trump that 

no member of the Executive Branch shall cooperate with the 

Committee’s impeachment investigation, see Cipollone Letter 

of Oct. 8, 2019, to Speaker Pelosi, at 7, likely explains the 

infrequency of subpoena enforcement lawsuits such as the 

present one. See Appellee Supp. Br. at 17–18; see id. at 26. 

In conclusion, the present lawsuit does not “run[] afoul” of 

the “structural principle” underlying the standing inquiry, 
37 

Allen, 468 U.S. at 761, including the proper role of the judiciary 

and preservation of the status quo ante between the branches 

for over 200 years. Holding that the Committee has standing 

would safeguard the separation of powers. It would ensure the 

continuation of the “established practice” of accommodation 

by preserving the legal background against which the political 

branches have historically negotiated their informational 

disputes. It would ensure that in the rare case — here in the 

course of no less than an impeachment investigation — when 

the political branches have reached an impasse despite repeated 

attempts to resolve an informational dispute themselves, a 

congressional Committee can seek judicial enforcement of its 

duly issued subpoena. Preserving the power of a House of 

Congress to ensure compliance with its subpoena, in turn, 

enables it to carry out its constitutional responsibilities, which 

include serving as an essential check on the President and the 

Executive Branch, Federalist No. 66 (A. Hamilton); see 

Federalist No. 69 (A. Hamilton). The Supreme Court has 

placed clear limits on the scope of Raines’s holding, and taken 

on its own terms Raines is consistent with the Committee’s 

standing. In particular, the history of judicial adjudication of 

interbranch informational disputes not unlike the present one 

undermines McGahn’s position that courts have not heretofore 

resolved such disputes. 

 Our dissenting colleagues reprise the views expressed in 

their panel opinions that have been vacated by the order 

granting the Committee’s petition for rehearing en banc. They 

take a different path than the en banc court in resolving the 

standing issue in the present litigation, largely adopting the 

positions that McGahn advocates. As explained at length, 

those contentions are unpersuasive. Given the rigor with which 

the en banc court has addressed the Article III standing issue 

and analyzed McGahn’s positions, there is no need to respond 

further to each our of dissenting colleagues’ opinions, other 
38 

than to underscore that the separation of powers and history are 

an integral part of, not divorced from, the en banc court’s 

standing inquiry. And because the only issue before the en 

banc court is the Committee’s Article III standing, this is not 

the occasion to respond to their views on other challenges 

raised by McGahn. 

* * * * 

 Accordingly, we hold that the Committee has Article III 

standing to seek enforcement in federal court of its duly issued 

subpoena in the performance of constitutional responsibilities. 

Therefore, we affirm the judgment of the district court in part. 

Consideration of McGahn’s other contentions — including 

threshold pre-merits objections that there is no subject matter 

jurisdiction and no applicable cause of action, and potential 

consideration of the merits if reached — remain to be decided 

and are remanded to the panel to address in the first instance. 
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: 

The Court holds today that the Committee on the Judiciary of 

the United States House of Representatives (Committee) has 

Article III standing to bring suit in federal court to enforce 

subpoenas against the Executive Branch. I dissent for the 

reasons stated in my concurrence in Committee on the 

Judiciary of the United States House of Representatives v. 

McGahn, 951 F.3d 510, 531–42 (D.C. Cir. 2020), vacated, 

reh’g en banc granted sub nom. U.S. House of Representatives 

v. Mnuchin, No. 19-5176, 2020 WL 1228477 (D.C. Cir. Mar. 

13, 2020), and I incorporate by reference thereto that 

previously published opinion as my dissent here. I write 

separately, however, to address recent Supreme Court case law

whose effect the majority has minimized.

“Standing to sue is a doctrine rooted in the traditional 

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

136 S. Ct. 1540, 1547 (2016), which, “[i]n the constitutional 

sense, . . . means the kind of controversy courts traditionally 

resolve,” United States v. Nixon, 418 U.S. 683, 696 (1974). 

Derived “[f]rom Article III’s limitation of the judicial power 

. . . and the separation-of-powers principles underlying that 

limitation,” Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 572 U.S. 118, 125 (2014), our standing inquiry therefore 

“serves to identify those disputes which are appropriately 

resolved through the judicial process,” Whitmore v. Arkansas,

495 U.S. 149, 155 (1990). This suit is not one of them.

For over two hundred years, the coordinate branches did 

not enlist the Judiciary in their fights. But our court did not 

leave well enough alone and, roughly forty years ago, set about

to “umpire disputes between th[e] branches regarding their 

respective powers.” Moore v. U.S. House of Representatives, 

733 F.2d 946, 959 (D.C. Cir. 1984) (Scalia, J., concurring in 

the judgment). This approach started to collapse under its own 

weight, however, as “the Supreme Court began to place greater 

emphasis upon the separation of powers concerns underlying 
2

the Article III standing requirement,” Chenoweth v. Clinton, 

181 F.3d 112, 114 (D.C. Cir. 1999), and after Raines v. Byrd,

521 U.S. 811 (1997), our “broad theory of legislative standing”

became untenable, see Chenoweth, 181 F.3d at 117 n.*. 

Notwithstanding our court’s past ill-advised effort to mediate 

battles between the political branches, the fact remains that the 

High Court has yet to sanction such an intrusion and we, an 

inferior court, should not take it upon ourselves to alter the 

balance of powers. The majority “opinion is like a pirate ship. 

It sails under a [separation-of-powers] flag,” Bostock v. 

Clayton Cnty., 140 S. Ct. 1731, 1755 (2020) (Alito, J., joined 

by Thomas, J., dissenting); see, e.g., Majority Op. at 36–37, but

in fact undermines the calibrated system of interbranch conflict 

resolution the Constitution requires.

Granted, “merely invoking separation of powers 

principles,” Majority Op. at 20, does not automatically 

preclude us from exercising the judicial power. Indeed, this 

case implicates the separation of powers in multiple ways, not 

all of which affect the Committee’s standing. The “separation 

of powers concerns” that arise in an “interbranch conflict” over 

“[c]ongressional demands for the President’s information,” 

Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2035 (2020), do 

not necessarily place a suit beyond our ken, see NLRB v. Noel 

Canning, 573 U.S. 513, 525 (2014) (“[I]t is the ‘duty of the 

judicial department’—in a separation-of-powers case as in any 

other—‘to say what the law is.’” (quoting Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 177 (1803)). But there is also the “timehonored concern about keeping the Judiciary’s power within 

its proper constitutional sphere,” Raines, 521 U.S. at 820, and

this separation-of-powers element, indivisible from Article III 

standing, “confines the federal courts to a properly judicial 

role,” Spokeo, 136 S. Ct. at 1547.
3

Although the majority appears to recognize as much, see, 

e.g., Majority Op. at 19–20, it gives short shrift to the fact that 

an injury must therefore be “personal, particularized, concrete, 

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

(emphasis added), “to ensure that federal courts do not exceed 

their authority as it has been traditionally understood,” Spokeo, 

136 S. Ct. at 1547. Legislative bodies are not exempt from the 

requirement that “an injury must be ‘legally and judicially 

cognizable,’” Va. House of Delegates v. Bethune-Hill, 139 

S. Ct. 1945, 1953 (2019) (quoting Raines, 521 U.S. at 819), and 

Article III standing may be wanting if, after “consult[ing] 

history and judicial tradition,” Ariz. State Legislature v. Ariz. 

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2695 (2015) 

(Scalia, J., joined by Thomas, J., dissenting), the dispute is not 

“of the sort traditionally amenable to, and resolved by, the 

judicial process,” Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 102 (1998). Simply put, we must consider whether the 

Committee’s “attempt to invoke the power of a federal court 

. . . is consistent with the structure created by the Federal 

Constitution” and “[a]n interest . . . that is inconsistent with that 

structure may not be judicially cognizable.” Bethune-Hill, 139 

S. Ct. at 1959 (Alito, J., joined by Roberts, C.J., Breyer, J., and 

Kavanaugh, J., dissenting).

I continue to believe the longstanding practice of resolving 

political disputes without judicial intervention counsels against 

the Committee’s standing here. “[T]he Constitution established 

that ‘[j]udicial power could come into play only in matters that 

were the traditional concern of the courts at Westminster,’” Vt. 

Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 

765, 774 (2000) (second alteration in original) (quoting 

Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., 

dissenting)), and “[c]ertainly neither the houses of Parliament 

nor the British monarchs ever considered submitting their 

disputes to the courts,” JOSH CHAFETZ, CONGRESS’S 
4

CONSTITUTION 190 (2017). Likewise, “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, despite the fact that these “decades-long disputes . . . 

would surely have been promptly resolved by a Congress-vs.-

the-President lawsuit if the impairment of a branch’s powers 

alone conferred standing to commence litigation. But it does 

not, and never has . . . .” United States v. Windsor, 570 U.S. 

744, 790 (2013) (Scalia, J., joined by Roberts, C.J., and 

Thomas, J., dissenting).1

Just last month, the Supreme Court emphasized that 

interbranch disputes like this one “have not ended up in court. 

Instead, they have been hashed out in the ‘hurly-burly, the giveand-take of the political process between the legislative and the 

executive.’” Mazars, 140 S. Ct. at 2029 (quoting Executive 

Privilege—Secrecy in Government: Hearings on S. 2170, S. 

2378 and S. 2420 Before the Subcomm. on Intergovernmental 

Rels. of the S. Comm. on Gov’t Operations, 94th Cong. 87 

(1975) (statement of Antonin Scalia, Assistant Att’y Gen., 

Office of Legal Counsel)). Under the guise of “preserv[ing] . . . 

that historical practice of accommodation,” Majority Op. at 23, 

the majority posits that without the possibility “of a subpoena 

enforcement lawsuit”—i.e., a judicial remedy—“the Executive 

Branch faces little incentive to reach a negotiated agreement in 

an informational dispute” with the Congress, id. at 24. But 

1

 The majority is quick to cabin Raines to its facts. But even 

accepting, arguendo, the majority’s premise “that Raines is a narrow 

case about the standing only of individual legislators,” Majority Op. 

at 30, it does not follow that Raines’s discussion of historical practice 

is therefore stripped of persuasive effect, cf. Windsor, 570 U.S. at 

790 (Scalia, J., joined by Roberts, C.J., and Thomas, J., dissenting) 

(“Raines d[oes] not formally decide this issue, but its reasoning 

does.”).
5

“[f]or more than two centuries, the political branches have 

resolved information disputes” themselves. Mazars, 140 S. Ct. 

at 2035.

In suggesting that the Judiciary is needed to “keep[] the 

Executive Branch at the negotiating table,” Majority Op. at 24, 

the majority largely ignores “the wide variety of means that the 

Constitution puts at [the House’s] disposal,” Mazars, 140 S. Ct. 

at 2035, if a recalcitrant President orders “widescale noncompliance with lawful inquiries by a House of Congress,” 

Majority Op. at 25. The House may, for example, withhold 

appropriations or, as it did here, impeach the President for 

“[d]irecting the . . . def[iance of] a lawful subpoena.” H.R. Res. 

755, 116th Cong., at 6 (2019).2 Thus, even if the House is 

unlikely to invoke its inherent contempt authority or pursue a 

criminal prosecution, see Majority Op. at 33–34, it is untrue 

that “no practicable alternative to litigation exists,” id. at 26. 

The political process may be messy, subject to the pitfalls of 

supercharged partisanship, but “we must put aside the natural 

urge . . . to ‘settle’ [this dispute] for the sake of convenience 

and efficiency,” Raines, 521 U.S. at 820, no matter how 

tantalizing a “judicial alternative” appears, Majority Op. at 34.

2

 Although the Constitution expressly provides these 

mechanisms to resolve interbranch conflict, it is notably silent on the 

Judiciary’s role in such disputes. Considering Article III carved out 

“as specific, independent categories of federal judicial power,

‘controversies’ between states, between a state and citizens of 

another state, and so on[,] . . . it is incredible that Framers who 

intended to extend judicial power to direct controversies between 

Congress and the President failed to include so important a category 

in their recitation.” Barnes v. Kline, 759 F.2d 21, 57 (D.C. Cir. 1984) 

(Bork, J., dissenting), vacated sub nom. Burke v. Barnes, 479 U.S. 

361 (1987).
6

By holding that the Committee has standing, the majority 

enlarges the Judiciary’s power to intervene in battles that 

should be waged between the Legislature and the Executive

and opens the door to future disputes between the political 

branches. Cf. Warth v. Seldin, 422 U.S. 490, 498 (1975) 

(“[Standing] is founded in concern about the proper—and 

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

Even if “the precise function” we perform in this case—

subpoena enforcement—“is a traditional feature of civil 

litigation in federal court,” Majority Op. at 27, “congressional 

subpoenas directed at” the Executive Branch “differ markedly” 

because they “unavoidably pit the political branches against 

one another,” Mazars, 140 S. Ct. at 2034. This distinction 

matters. If the interbranch character of the dispute was of no 

consequence, any President could presumably challenge in 

court lawsthat he believesinfringe upon Article II powers. And 

statutory interpretation, like subpoena enforcement, is also a 

“familiar judicial exercise.” Majority Op. at 26 (quoting 

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 

(2012)). Although “[t]here would be nothing irrational about a 

system that granted standing in” such a case, “it is obviously 

not the regime that has obtained under our Constitution to 

date.” Raines, 521 U.S. at 828. “In limiting the judicial power 

to ‘Cases’ and ‘Controversies,’ Article III of the Constitution 

restricts it to the traditional role of Anglo-American courts,” 

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

did not hear suits between coordinate branches of government. 

The majority’s broad conception of legislative standing, 

however, disregards this limitation. Accordingly, I respectfully 

dissent.
GRIFFITH, Circuit Judge, dissenting: Today the court

relegates the separation of powers from a core component of 

Article III to an afterthought. The court severs the standing

analysis from its separation-of-powers roots and treats a direct 

dispute between the Legislative and Executive Branches as if

it were any old case. The result is an anemic Article III

jurisprudence that flouts a long line of Supreme Court 

precedent, ignores the basic structure of the Constitution, and 

resuscitates long-discredited case law from this circuit.

And for what? Who benefits from today’s decision? Not 

Congress. The majority’s ruling will supplant negotiation with

litigation, making it harder for Congress to secure the 

information it needs. And the Committee likely won’t even get 

what it wants in this case. Because the majority declines to 

decide whether the Committee has a cause of action and 

whether it should prevail on the merits, the chances that the 

Committee hears McGahn’s testimony anytime soon are 

vanishingly slim. The federal courts won’t benefit, either. The 

majority’s decision will compel us to referee an interminable 

series of interbranch disputes, politicizing the Judiciary by 

repeatedly forcing us to take sides between the branches. Most 

importantly, the decision does grave harm to the Constitution’s

system of separated powers, which constrains federal courts to 

the narrow task of resolving concrete “Cases” and 

“Controversies” so that elected representatives call the political 

shots. I cannot join the court’s expedition into an area where 

we do not belong and can do no good. 

I

The most puzzling aspect of today’s decision is the court’s 

disregard for the relationship between Article III and the 

separation of powers. Heedless of the interbranch nature of this

dispute, the majority trots through the three-part standing test 

from Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), as if 

the Committee were just like a private party enforcing a 
2

subpoena in a breach-of-contract suit. The majority returns this 

circuit to the prudential approach to standing that we

experimented with decades ago and that the Supreme Court

rejected in Raines v. Byrd, 521 U.S. 811 (1997). And the court

fails to offer any limits to its revived doctrine of congressional 

standing, leaving future panels to struggle to find a coherent 

stopping point. 

A

The majority’s disregard for the separation of powers is 

apparent on the face of the opinion. The court announces its 

“skepticism” that “the separation of powers . . . bear[s] on 

whether the Committee has Article III standing.” Maj. Op. at 

20. The Supreme Court might be surprised to hear that. Time 

and again, the Court has said that standing “is built on a single 

basic idea—the idea of separation of powers.” Raines, 521 U.S. 

at 820 (internal quotation marks omitted). For that reason, 

“questions . . . relevant to the standing inquiry must be 

answered by reference to the Art[icle] III notion that federal 

courts may exercise power . . . only when adjudication is 

consistent with a system of separated powers.” Allen v. Wright, 

468 U.S. 737, 752 (1984); see also id. at 761 n.26; Susan B. 

Anthony List v. Driehaus, 573 U.S. 149, 157 (2014); Steel Co. 

v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998); Flast v. 

Cohen, 392 U.S. 83, 97 (1968).

The “concrete injury” requirement imbues standing 

doctrine with its “separation-of-powers significance.” Lujan, 

504 U.S. at 577. That requirement is also “grounded in 

historical practice,” and we must ask whether an alleged harm 

“has traditionally been regarded as providing a basis for a 

lawsuit in English or American courts.” Spokeo, Inc. v. Robins, 

136 S. Ct. 1540, 1549 (2016). The Judiciary does not and never 

has resolved direct disputes between the political branches. The 
3

“traditional role” of the federal courts “is to redress or prevent 

actual or imminently threatened injury to persons caused by 

private or official violation of law.” Summers v. Earth Island 

Inst., 555 U.S. 488, 492 (2009). Interbranch disputes thus “lie[] 

far from the . . . conceptual core of the case-or-controversy 

requirement.” Raines, 521 U.S. at 833 (Souter, J., concurring 

in the judgment); see also Ariz. State Legislature v. Ariz. Indep. 

Redistricting Comm’n, 135 S. Ct. 2652, 2665 n.12 (2015)

(noting that lawsuits between the Legislative and Executive 

Branches raise “separation-of-powers concerns”).

Those considerations about the traditional role of the 

Judiciary bear directly on whether the Committee’s asserted 

injury—deprivation of testimony that hinders the Committee in 

“carrying out its constitutional functions,” Maj. Op. at 14—

suffices to establish standing. We thus cannot evaluate whether 

this suit presents an Article III case or controversy by 

abstracting away from the critical facts: the Committee on the 

Judiciary of the United States House of Representatives is 

suing the former White House Counsel to compel him to 

divulge information obtained during the course of his duties,

and the Committee seeks that information to effectuate its 

institutional prerogatives to conduct oversight of the Executive 

Branch and to impeach the President. The question is whether 

that injury to the Committee is “legally and judicially 

cognizable,” and whether that claim is “traditionally thought to 

be capable of resolution through the judicial process.” Raines, 

521 U.S. at 819 (internal quotation marks omitted).

Yet the majority breezes through the injury-in-fact

analysis with scarcely a word about the interbranch nature of 

this dispute. See Maj. Op. at 7-18. Because “private parties 

undeniably have standing to seek judicial enforcement of 

compliance with subpoenas,” the majority reasons, the 

Committee must also have standing to enforce the Executive 
4

Branch’s compliance with a congressional subpoena. Id. at 14. 

But that analogy breaks down twice over. First, the fact that we 

may resolve similar information disputes between private 

parties does not answer whether we can resolve an interbranch

information dispute. Second, although enforcement of a 

subpoena issued under the auspices of our own Article III 

power is a “familiar judicial exercise,” id. at 26 (quotation 

marks omitted), there is nothing “[]usual” or “traditional,” id., 

about the Committee’s request that Article III judges enforce 

an Article I subpoena against an Article II officer. 

The majority’s entire affirmative case is thus premised on 

a faulty analogy between an injury to private parties and an 

injury to Congress. The majority justifies its neglect of the 

interbranch nature of this dispute by arguing that separation-ofpowers concerns require its standing analysis to be “‘especially 

rigorous,’” not that those “separation of powers concern[s] . . . 

must be part of [its] standing analysis.” Id. at 21 (quoting 

Raines, 521 U.S. at 819-20). I confess I do not know what it 

means to conduct the “rigorous” standing analysis that the 

separation of powers requires without considering the 

separation of powers as part of that analysis. The majority 

makes no substantive mention of the separation of powers until 

eighteen pages into the opinion, and even then, it asks only 

whether “separation of powers principles defeat[]” the outcome 

of its standing analysis. Id. at 20. The court cannot cure its 

initial error with a belated and half-hearted discussion of the 

separation-of-powers considerations that should have informed 

its injury-in-fact analysis.

B

The Supreme Court has already rejected the majority’s 

two-step approach, in which it considers standing first and the 

separation of powers later. In a string of decisions beginning in 
5

1974, we held—“[o]ver strong dissent”—“that Members of 

Congress may have standing when” “they assert injury to their 

institutional power as legislators.” Raines, 521 U.S. at 820 n.4. 

Recognizing that separation-of-powers considerations did bear 

on the justiciability of these suits, however, we developed a

doctrine of “circumscribed equitable discretion” so we could 

dismiss some cases as nonjusticiable even if we found 

legislative standing. Chenoweth v. Clinton, 181 F.3d 112, 114 

(D.C. Cir. 1999). “Keeping distinct our analysis of standing 

and our consideration of the separation of powers,” we 

reasoned, allowed us to treat “congressional and private

plaintiffs . . . alike for the purpose of determining their 

standing.” Id.

The Supreme Court rejected that practice in Raines, and 

we set ourselves straight, until today. After Raines, we 

recognized that the Supreme Court was “unmoved by [our] 

concern” that “consideration of separation of powers issues 

would distort our standing analysis.” Id. at 115 (internal 

quotation marks omitted). We then concluded that Raines 

“require[d] us to merge our separation of powers and standing 

analyses.” Id. at 116. In other words, we rejected the circuit’s

bifurcated approach that asked (1) whether “[congressional] 

plaintiffs [would have] had standing to sue” if they were a 

private party, and then (2) whether the “separation of powers 

problems [the lawsuit] created” demanded that we dismiss the 

suit anyway. Id. at 115.

Despite that course correction, the court again today treats

the separation of powers as a backstop on our jurisdiction—an 

atmospheric concern to be considered only after we decide that 

a congressional plaintiff has standing. See Maj. Op. at 18-37. 

The majority dutifully recites Chenoweth’s command to

integrate separation-of-powers concerns into the standing 

analysis, but then goes on to reject the proposition that the 
6

separation of powers is a “necessary part of [the] standing 

analysis.” Maj. Op. at 21. The majority treats the Executive 

Branch’s separation-of-powers concerns as free-floating 

objections, asking whether they negate the outcome of a 

standing analysis conducted oblivious to these concerns. But 

that approach is backwards, and it replicates this circuit’s 

discredited pre-Raines effort to consider congressional 

standing in isolation from the separation of powers.

If the Court’s first rebuke in Raines failed to convince us 

to take separation-of-powers concerns seriously, the second 

should have. Just a few short weeks ago, the Supreme Court 

vacated and remanded our decision in a different congressional 

subpoena case for failing to “take[] adequate account of the 

separation of powers principles at stake.” Trump v. Mazars

USA, LLP, No. 19-715, slip op. at 18, 20 (U.S. July 9, 2020). 

Still, the court once again expresses “skepticism” that 

separation-of-powers principles should guide its analysis. Maj. 

Op. at 20.

C

1

The majority’s return to the D.C. Circuit’s old way—a 

check-the-box approach to standing coupled with desultory 

review of the lawsuit’s separation-of-powers implications—

places effectively no limitations on Congress’s ability to haul 

the Executive Branch into court. The majority concludes that 

the Committee suffered a “concrete” injury because McGahn 

“denied the Committee something to which it alleges it is 

entitled by law,” id. at 13, but that reasoning is boundless. Any

claim that Congress might bring against the Executive Branch 

alleges a deprivation of something to which Congress is 

entitled by law. 
7

Consider just a few possibilities. Under the majority’s 

reasoning, why couldn’t Congress (or the House or the Senate 

or a committee) challenge any Executive Order that allegedly 

violated the Bicameralism and Presentment Clause? See 

Chenoweth, 181 F.3d at 113. Or any military action that 

allegedly violated the Declare War Clause? See Campbell v. 

Clinton, 203 F.3d 19, 19 (D.C. Cir. 2000). Or one of the 

Executive Branch’s spending decisions that allegedly violated 

the Appropriations Clause? See U.S. House of Representatives 

v. Mnuchin, No. 19-5176 (D.C. Cir. Aug. 7, 2020) (Griffith, J., 

dissenting). Just as in this case, each hypothetical suit involves

allegations that Congress has been denied something to which 

it is entitled by law—the prerogative to enact statutes, or to 

declare war, or to appropriate funds. The majority’s strippeddown conception of standing authorizes Congress to bring all 

these suits and more. 

Worse, if Congress or one of its chambers may sue the 

Executive Branch, “it must follow that the President may, by 

the same token, sue Congress.” Barnes v. Kline, 759 F.2d 21, 

46 (D.C. Cir. 1984) (Bork, J., dissenting), vacated sub

nom. Burke v. Barnes, 479 U.S. 361 (1987). Under the 

majority’s reasoning, whenever Congress passes a statute that

the President believes invades his constitutional prerogatives, 

he could come into court to obtain a judicial declaration on that 

statute’s constitutionality. And why stop at suits between the 

Legislative and Executive Branches? The D.C. Circuit could 

sue Congress for stripping its habeas jurisdiction over

Guantanamo Bay by alleging that Congress deprived it of its

jurisdiction. Cf. id.

Once the courthouse doors are open, there’s no reason to 

expect the branches to be judicious about the suits they bring. 

Even the General Counsel for the House conceded that 
8

allowing such interbranch suits poses a serious “floodgates 

problem.” Oral Arg. Tr. 100:13; see also id. at 103:23. Given 

the majority’s conclusion that a deprivation of a legal right

satisfies Article III, I see no reason to exclude any of these 

cases from our jurisdiction. After all, each involves an 

institutional plaintiff alleging a deprivation of a constitutional 

prerogative. And because our standing analysis requires us to 

assume the plaintiff’s success on the merits, we would have to 

entertain any claim alleging such a deprivation, no matter how 

outlandish. In short order, we could be forced to interpret

constitutional provisions that have traditionally been

interpreted by the political branches and “never before . . . by 

the federal courts,” Schlesinger v. Reservists Comm. to Stop the 

War, 418 U.S. 208, 221 (1974), and that courts should consider 

only “in the last resort, and as a necessity,” Raines, 521 U.S. at 

819 (internal quotation marks omitted).

That cannot be right. If “the concrete injury requirement 

has the separation-of-powers significance” that the Supreme 

Court has “always said” it has, Lujan, 504 U.S. at 577, then the 

answer to whether these injuries suffice for Article III standing 

must be a resounding “No.” Components of the government 

cannot bring suit alleging that another branch has caused the 

“abstract dilution of institutional . . . power.” Raines, 521 U.S. 

at 826. When a branch “asserts a ‘right’ that consists of the 

exercise of (or participation in the exercise of) a political 

power, the business of the political branches is the very object

of the dispute, no matter with what degree of particularity the 

‘right’ has been conferred.” Moore v. U.S. House of

Representatives, 733 F.2d 946, 958 (D.C. Cir. 1984) (Scalia, J., 

concurring in the judgment). If the political branches were 

deemed to have a judicially cognizable interest in the “powers 

that have been conferred upon them (whether specifically or 

vaguely) by Constitution or statute,” our system of separated 
9

powers would be reduced to a system of “judicial refereeship.” 

Id. at 959. 

The majority hints (but never says) that the denial of 

Congress’s right to information is somehow more concrete than 

other deprivations of institutional rights. But as the majority 

opinion emphasizes, the reason that McGahn’s refusal to testify 

harms the House is that it subverts the House’s ability “to 

legislate, to conduct oversight,” and “to impeach and remove a 

President.” Maj. Op. at 3. Those injuries are allegations that the 

House’s institutional prerogatives have been frustrated by the 

Executive Branch’s assertion of absolute testimonial 

immunity. And those injuries are no more concrete than any 

other assertion that the Executive Branch has taken power from 

Congress, or that Congress has taken power from the President.

Thus, although the majority evaluates only the 

Committee’s asserted informational harm, its reasoning 

sweeps far more broadly. And neither the court nor the 

Committee has offered any principled limitations on that 

sweep. Indeed, by refusing to resolve the companion case in 

Mnuchin, the full court passes on the chance to offer guidance 

about the outer limits of its reasoning. See Mnuchin, No. 19-

5176, slip op. at 3-4 (Griffith, J., dissenting). Today’s decision 

will leave future panels to assess these suits on a case-by-case 

basis, deciding whether the constitutional power that has 

allegedly been diluted strikes them as specific enough (or 

important enough) to intervene. All the while, the branches’ 

ability to settle matters on their own will grind to a halt as they 

submit themselves to the D.C. Circuit’s superintendence.

2

Even assuming that informational injuries are uniquely 

“concrete” and the majority’s decision can be cabined to just 
10

these disputes, the opinion still opens the courthouse doors to 

unending litigation. The court deems the dispute in today’s 

litigation “discrete and limited,” Maj. Op. at 27, but the 

Committee admitted before the panel that—if McGahn 

testified and the Committee disagreed with his assertions of 

executive privilege—it would seek further relief, perhaps 

through emergency motions, to compel him to talk. See Comm.

on the Judiciary v. McGahn, 951 F.3d 510, 518 (D.C. Cir. 

2020) (McGahn I), reh’g en banc granted sub nom. U.S. House 

of Representatives v. Mnuchin, No. 19-5176, 2020 WL 

1228477 (D.C. Cir. Mar. 13, 2020). Today’s decision invites 

that litigation, establishing the D.C. Circuit as the continuous 

monitor of congressional oversight hearings.

Supervising these hearings and other information disputes

will be an unhappy task for judges who value the public 

perception of impartiality. Because “congressional subpoenas 

for [executive-branch] information unavoidably pit the 

political branches against one another,” Mazars, slip op. at 15,

entertaining these suits will invariably put us in the “awkward 

position” of choosing a winner in repeated contests of power 

and privilege, Cheney v. U.S. Dist. Court for D.C., 542 U.S. 

367, 389 (2004). We will be forced to balance “the Executive’s 

claims of confidentiality and autonomy” against Congress’s 

asserted need for information. Id. And we will have to make 

such decisions about records and testimony “of intense political 

interest for all involved.” Mazars, slip op. at 17. Resolving 

these disputes will not just threaten the neutrality of the 

Judiciary; it will require the branches to submit to our views of 

their constitutional prerogatives on our timeline. Nobody wins 

when we place “the Constitution’s entirely anticipated political 

arm wrestling into permanent judicial receivership.” United 

States v. Windsor, 570 U.S. 744, 791 (2013) (Scalia, J., 

dissenting).
11

II

Unlike the majority, I would integrate the separation-ofpowers considerations into the standing analysis. As I have 

already explained, this dispute is neither “consistent with a 

system of separated powers” nor “traditionally thought to be 

capable of resolution through the judicial process.” McGahn I, 

951 F.3d at 516 (quoting Allen, 468 U.S. at 752). Accordingly, 

as discussed at length in the panel opinion, it must be 

dismissed.

Once again, the Judiciary cannot resolve pure interbranch 

disputes. Federal courts primarily sit “to decide on the rights of 

individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 

(1803), and our core function is “to redress or prevent actual or 

imminently threatened injury to persons caused by private or 

official violation of law,” Summers, 555 U.S. at 492. To be 

sure, that task sometimes requires us to resolve deeply 

controversial political disputes. But we resolve those disputes

“only in the last resort, and as a necessity in the determination 

of [a] real, earnest, and vital controversy between individuals.” 

Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892). 

Because we address such disputes only “in the course of 

carrying out the judicial function” of resolving cases or 

controversies, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 

340 (2006), we cannot intervene in an interbranch dispute 

unless and until the actions of one of the branches harms an 

entity “beyond the [Federal] Government,” Raines, 521 U.S. at 

834 (Souter, J., concurring in the judgment). 

It is no accident that every major separation-of-powers

case to reach the Supreme Court in the Nation’s history fits 

exactly that pattern. In Marbury v. Madison, William Marbury 

sought his “commission as a justice of the peace.” 5 U.S. at 

154. Humphrey’s Executor arose because William Humphrey’s
12

estate sought to collect backpay after President Roosevelt fired 

Humphrey. 295 U.S. 602, 618-19 (1935). In INS v. Chadha, 

Jagdish Rai Chadha—a man admitted to the United States on a 

student visa—sought to remain in the country. 462 U.S. 919, 

923 (1983). United States v. Nixon arose out of a judicial

subpoena issued in the “regular course of [the] federal criminal 

prosecution” of seven Watergate burglars. 418 U.S. 683, 687, 

697 (1974). And both Free Enterprise Fund and Seila Law 

involved private companies subject to government 

investigations. Seila Law LLC v. CFPB, No. 19-7, slip op. at 6 

(U.S. June 29, 2020); Free Enter. Fund v. Pub. Co. Accounting 

Oversight Bd., 561 U.S. 477, 487 (2010); see also McGahn I, 

951 F.3d at 520-21 (listing other separation-of-powers cases 

that all involved the “concrete interests of private actors”).

Neither the Committee nor the court identifies a single 

example of a direct interbranch dispute—on any issue—

resolved by the Supreme Court. Ever. The Supreme Court’s 

explanation in Raines remains true today: History is replete 

with “confrontations between one or both Houses of Congress 

and the Executive Branch,” but until recently, “no suit was 

brought on the basis of claimed injury to official authority or 

power.” Raines, 521 U.S. at 826. If a chamber of Congress 

could sue the Executive Branch to enforce its institutional 

prerogatives—be it the right to participate in appointments, or 

the right to vote to go to war—the U.S. Reports should be 

littered with these claims. They are not.

The same is true of the subset of interbranch disputes at 

issue here: conflicts about information. Since the Founding, 

“congressional demands for [executive-branch] information 

have been resolved by the political branches without involving 

[the] [c]ourt[s].” Mazars, slip op. at 9. The only remotely 

similar dispute that the Supreme Court has ever addressed 

involved the rights of private parties; Mazars was brought by 
13

“the President in his personal capacity” and “his children and 

affiliated businesses” against a third-party accounting firm. Id. 

at 5 (emphasis added). Altogether, the “complete novelty of the 

direct intermediation of the courts in disputes between the 

President and the Congress[] ought to give us pause.” Barnes, 

759 F.2d at 41 (Bork, J., dissenting).

But as with the separation of powers, the majority 

dismisses this history as extraneous to the standing analysis, 

suggesting that the Supreme Court has never “append[ed]” a 

“historical prong” to the three-part standing test elucidated in 

Lujan. Maj. Op. at 34. No, there is no fourth prong, but in 

determining whether a “harm constitutes [an] injury in fact,” 

“history . . . play[s an] important role[].” Spokeo, 136 S. Ct. at 

1549. The Supreme Court has repeatedly emphasized that 

Article III limits us to adjudicating claims “traditionally 

thought to be capable of resolution through the judicial 

process.” Allen, 468 U.S. at 752 (internal quotation marks 

omitted); see also Lujan, 504 U.S. at 559-60 (explaining that 

our jurisdiction “depends largely upon common understanding 

of what activities are appropriate to legislatures, to executives, 

and to courts”); 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). How else could we identify the 

“traditional” limits on our jurisdiction without consulting that 

history?

And the best history that the majority can muster is four 

decisions all within the last forty-five years—two in this 

circuit, two in the district court. See Maj. Op. at 23-24. But 

“[t]hese few scattered examples . . . shed little light” on the 

constitutionality of judicial resolution of interbranch disputes. 

Seila Law, slip op. at 19 (internal quotation marks omitted).

The majority professes itself untroubled by the rarity and 

recency of these historical examples, speculating that perhaps 
14

a “long tradition of Presidential cooperation” minimized the 

need for such suits in the past. Maj. Op. at 36. But Presidents 

of all stripes—including Washington, Adams, Jefferson, 

Monroe, Lincoln, Theodore Roosevelt, Franklin Roosevelt, 

Truman, Carter, Reagan, Bush, and Obama—withheld 

information from Congress during their presidencies. See 

Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 

2d 1, 5-7 (D.D.C. 2013); Comm. on the Judiciary v. Miers, 558 

F. Supp. 2d 53, 57-64 (D.D.C. 2008); History of Refusals by 

Executive Branch Officials to Provide Information Demanded 

by Congress, 6 Op. O.L.C. 751, 751-81 (1982).

It is the majority’s view that is the outlier. For years, the 

political branches agreed to resolve their interbranch 

information disputes with negotiation rather than litigation.

Even setting aside the nearly unbroken history of political 

resolution of interbranch information disputes leading up to our 

adventurous decisions in the 1970s, the political branches have

each recently opposed the majority’s conclusion. For instance,

the Bush and Obama Administrations both resisted judicial 

resolution of these disputes. 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 (President 

Obama); 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 (President Bush).

And despite the Committee’s current litigating position, 

Congress has also long agreed that these disputes are not fit for 

judicial resolution. During the Watergate impeachment 

investigation of President Nixon, for instance, the Committee 

on the Judiciary concluded that it “would be inappropriate to 

seek the aid of the courts to enforce its subpoenas against the 

President.” H.R. REP. NO. 93-1305, at 210 (1974). “The 

Committee’s determination not to seek to involve the judiciary 
15

reflected not only an intent to preserve the constitutional 

structure, but also the high probability that the courts would 

decline to rule on the merits of the case because it is . . . not the 

kind of controversy courts traditionally resolve.” Id. at 210-11 

(emphasis added) (internal quotation marks omitted).

The statutory regime for judicial enforcement of 

congressional subpoenas reflects this same judgment. Only the 

Senate has express statutory authority to enforce a subpoena in 

federal court, see 2 U.S.C. § 288d; In re U.S. Senate Permanent 

Subcomm. on Investigations, 655 F.2d 1232, 1238 & n.28 (D.C. 

Cir. 1981), but not if the suits involve executive-branch 

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

As the law’s sponsors explained, the statute’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) (similar). This case is just such a controversy; 

McGahn’s sole argument on the merits is that “Congress may 

not constitutionally compel the President’s senior advisers”—

like McGahn—“to testify about their official duties.” McGahn 

Panel Br. 47 (internal quotation marks omitted). 

By privileging four recent lower-court decisions over 200 

years of tradition, the majority “needlessly disturb[s] the 

compromises and working arrangements that [the] branches 

themselves have reached.” Mazars, slip op. at 11 (cleaned up). 

“Congress and the Executive have . . . managed for over two 

centuries to resolve [information] disputes among themselves 

without the benefit of guidance from [the courts].” Id. The 

majority protests that its decision actually “preserv[es]” “the 

status quo ante between the branches,” Maj. Op. at 30, but that

assertion is doubly wrong. The paucity of historical analogues 

to this suit belies the claim that the majority’s decision reflects 

the status quo. And the majority’s defense of congressional 
16

standing does not preserve but displaces the system of 

accommodation that is the status quo. With litigation on the 

table, neither side has an incentive to cooperate. “Instead of 

negotiating over information requests,” Congress or the 

Executive Branch “could simply walk away from the 

bargaining table” and force a resolution by judges. Mazars, slip 

op. at 16. The inevitable result is that we will become courts 

not of last but of first resort.

III

Sometimes the temptation to wrongly expand our 

jurisdiction stems from “the natural urge to proceed directly to 

the merits of [an] important dispute and to ‘settle’ it for the sake 

of convenience and efficiency.” Raines, 521 U.S. at 820. But 

here, the full court hurdles over Article III’s barriers only to 

decline to resolve the case. The majority remands the case to 

the panel to decide whether the Committee has a cause of action 

and whether it should prevail on the merits. Congress has 

already waited over fourteen months for a resolution; the court

tells it to hurry up and wait some more. As in Mnuchin, I cannot 

agree with my colleagues’ decision to force the political 

branches to wait patiently while we work our way through

these important cases. See Mnuchin, slip op. at 3-4 (Griffith, J., 

dissenting). I would hold that the Committee lacks a cause of 

action to prosecute its case against McGahn. 

A

In addition to demonstrating standing, the Committee must

also show that it has a cause of action that supports an 

injunction compelling McGahn to testify. Our case law 

forecloses that argument. 
17

“Prior to 1978 Congress had only two means of enforcing 

compliance with its subpoenas: [1] a statutory criminal 

contempt mechanism and [2] the inherent congressional 

contempt power.” In re Application of the U.S. Senate 

Permanent Subcomm. on Investigations, 655 F.2d at 1238

(footnote omitted). Neither means allowed for judicial 

enforcement of a subpoena. “Responding to this deficiency, 

Congress enacted [a] mechanism for civil enforcement of 

Senate subpoenas” in 1978. Id. (emphasis added). That law 

allows “the Senate [to] request a court order requiring [an]

individual to comply with [a] subpoena.” Id. By my count, that 

comes to just three “means of enforcing compliance with 

[congressional] subpoenas”—a criminal contempt proceeding, 

an inherent contempt proceeding, and a civil suit authorized by 

statute. Id. But the statute that Congress passed in 1978 “does 

not . . . include civil enforcement of subpoenas by the House of 

Representatives.” Id. at 1238 n.28. And Congress has passed 

no further statutes authorizing the House to bring such suits. 

Because the D.C. Circuit has identified only these three ways 

for Congress to enforce compliance with its subpoenas, that 

precedent forecloses the Committee’s efforts to litigate this 

case.

B

Even if the panel were not bound by this precedent on 

remand, the Committee would still lack a cause of action. The 

Committee argues that it has an implied cause of action under

Article I, that it can invoke the traditional power of courts of 

equity to enjoin unlawful executive action, and that the 

Declaratory Judgment Act provides a separate basis for this

suit. None suffices. 

Start with Article I. The Committee argues that it is 

“entitled under Article I to seek equitable relief to enforce a 
18

subpoena . . . issued in furtherance of its constitutional power 

of inquiry.” Committee Panel Br. 34 (internal quotation marks 

omitted). But time and again, the Supreme Court has warned 

federal courts to hesitate before implying causes of actions—

whether from a congressional statute or from the Constitution. 

See, e.g., Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 

(2018); Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017);

Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001). “When a 

party seeks to assert an implied cause of action under the 

Constitution itself, . . . separation-of-powers principles are or 

should be central to the analysis,” Ziglar, 137 S. Ct. at 1857, 

and usually Congress “should decide” whether to authorize a 

lawsuit, id. (internal quotation marks omitted). 

In this case, Congress has declined to authorize lawsuits 

like the Committee’s twice over. First, Congress has granted an 

express cause of action to the Senate—but not to the House. 

See 2 U.S.C. § 288d. Second, the Senate’s cause-of-action 

statute expressly excludes suits that involve executive-branch 

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

The expression of one thing implies the exclusion of the other, 

and authorizing the Committee to bring its lawsuit would 

conflict with two separate limitations on civil suits to enforce 

congressional subpoenas. We should not read these carefully 

drafted limitations out of the statute books.

The Committee suggests that—even if Article I alone 

doesn’t provide a cause of action—the court may exercise its

“traditional equitable powers” to grant relief. Ziglar, 137 S. Ct. 

at 1856. But those powers remain “subject to express and 

implied statutory limitations,” Armstrong v. Exceptional Child 

Ctr., Inc., 575 U.S. 320, 327 (2015), and are further limited to 

relief that was “traditionally accorded by courts of equity,” 

Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 

527 U.S. 308, 319 (1999). Again, “implied statutory 
19

limitations” foreclose suits by the House and suits that 

implicate a governmental privilege; this one checks both boxes. 

Anyway, there’s nothing “traditional” about the 

Committee’s claim. The Committee cannot point to a single 

example in which a chamber of Congress brought suit for 

injunctive relief against the Executive Branch prior to the 

1970s. Interbranch suits “lie[] far from the model of the 

traditional common-law cause of action at the conceptual core 

of the case-or-controversy requirement.” Raines, 521 U.S. at 

833 (Souter, J., concurring in the judgment). While equity may 

be “flexible,” “that flexibility is confined within the broad 

boundaries of traditional equitable relief.” Grupo Mexicano, 

527 U.S. at 322. We cannot simply reference “equity” to justify 

a vast expansion of our authority to enforce congressional 

subpoenas.

Finally, the Committee claims that the Declaratory 

Judgment Act allows it to bring suit. See 28 U.S.C. § 2201(a). 

This argument is even less persuasive. The Declaratory 

Judgment Act does not itself “provide a cause of action,” as the 

“availability of declaratory relief presupposes the existence of 

a judicially remediable right.” Ali v. Rumsfeld, 649 F.3d 762, 

778 (D.C. Cir. 2011) (cleaned up); see also C&E Servs., Inc. of 

Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. 

Cir. 2002). That statute is “procedural only” and simply 

“enlarge[s] the range of remedies available in the federal 

courts.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 

671 (1950) (internal quotation marks omitted). Because Article 

I does not create a “judicially remediable right” to enforce a 

congressional subpoena, the Committee cannot use the 

Declaratory Judgment Act to bootstrap its way into federal 

court. Thus, even if the Committee could establish the standing 

necessary to “get[] [it] through the courthouse door, [that] does 

not keep [it] there.” Make the Road N.Y. v. Wolf, 962 F.3d 612, 
20

631 (D.C. Cir. 2020). Without a cause of action to sustain it, 

the Committee’s suit must be dismissed.

IV

The majority’s opinion is a Pyrrhic victory for Congress. 

Courts have many virtues, but dispatch is not one of them. “To 

the extent that enforcement of congressional subpoenas is left 

to the courts, future administrations [will] now know that they 

can delay compliance for years,” all while avoiding the 

traditional political cost associated with refusing to negotiate 

with Congress in good faith. Josh Chafetz, Executive Branch 

Contempt of Congress, 76 U. CHI. L. REV. 1083, 1154 (2009). 

This case, and its unresolved companion in Mnuchin, 

illustrates the costs of delay. Despite agreeing to hear this case 

on an expedited schedule, more than fourteen months have 

passed since the House issued its subpoena. Yet final resolution 

of the Committee’s claim is nowhere in sight. And bear in mind

that the majority says that this case presents a “discrete and 

limited” legal question. Maj. Op. at 27. How much longer will 

it take the courts to decide more intricate questions of power 

and privilege? The fact is that Congress has never successfully 

obtained information from an executive-branch official in a 

lawsuit. Indeed, our circuit previously declined to expedite the 

appeal of a legislative subpoena case because it could not be 

“fully and finally resolved by the Judicial Branch—including 

resolution by a panel and possible rehearing by this court en 

banc and by the Supreme Court—before [that] 

Congress end[ed]” and its subpoenas “expir[ed].” Comm. on 

the Judiciary of U.S. House of Representatives v. Miers, 542 

F.3d 909, 911 (D.C. Cir. 2008). 

And the majority’s decision to open the courthouse doors 

to these futile lawsuits comes at a serious cost. The option of 
21

litigation weakens Congress’s ultimate lever of accountability: 

its impeachment power. In the past, the House Judiciary

Committee has treated the Executive Branch’s failure to 

cooperate in an investigation as grounds for an impeachment. 

See H.R. REP. NO. 116-346, at 155 & n.906 (2019) (President 

Trump); H.R. RES. NO. 93-625 (1973) (President Nixon). But 

once litigation is a viable option, the President can always 

defend against accusations of executive-branch stonewalling 

by turning around and reproaching Congress for bypassing the 

courts—just as the President did here. See Trial Memorandum 

of President Donald J. Trump, In Proceedings Before the 

United States Senate 49, 53 (Jan. 20, 2020). Today’s decision 

thus grants Congress the sluggish remedy of judicial 

superintendence only to blunt the most potent weapon in its 

arsenal. 

The court seems to think that the alternative—leaving 

these disputes to the traditional process of negotiation and 

accommodation—is even worse. But Congress has powerful

and varied tools to deal with a recalcitrant Executive Branch. It

may withhold appropriations, refuse to confirm presidential 

nominees, prevent the President from implementing his 

legislative agenda, and wield public opinion against the 

President. At the extreme, the Legislative Branch may hold 

uncooperative officers in contempt of Congress or even 

impeach them. 

The majority worries that these political remedies are 

“impracticable,” Maj. Op. at 34, and it offers judicial 

enforcement as a supplement. But judicial involvement cannot 

solve Congress’s problems when political tools fail. Courts

cannot ensure that the Legislative Branch gets timely access to 

information from a dilatory Executive Branch; we take too 

long. Courts also cannot intervene without displacing the 

centuries-old system of negotiation, accommodation, and 
22

(sometimes) political retaliation; one party or the other—likely 

an Executive Branch that benefits from delay—will walk away 

from the bargaining table and force litigation. And even if 

Congress eventually prevails in court, we cannot be sure that a 

“President [who] loses the lawsuit”—having already defied 

Congress and withstood political pressure—will “faithfully 

implement the [c]ourt’s decree.” Windsor, 570 U.S. at 791

(Scalia, J., dissenting).

Worst of all, we cannot offer the political branches the 

remedy of judicial enforcement without squandering the

precious reserve of public confidence that makes our 

judgments efficacious in the first place. Article III’s limitations 

are for the other branches’ protection, but they are for our

protection too. Parties respect neither our “force” nor our “will”

but our “judgment.” FEDERALIST NO. 78 (Alexander 

Hamilton). If we venture into this increasingly politicized 

territory, we risk undermining that neutrality and losing the 

public’s trust. We do neither ourselves nor the parties any

favors by embarking down this path, and I would leave the 

political branches to resolve their disputes through the political 

process—as the Constitution demands. Respectfully, I dissent.