On Monday, August 31, a panel of the U.S. Court of Appeals for the D.C. Circuit upended more than a decade of district court precedent and deprived—at least for the moment—the U.S. House of Representatives of its ability to seek civil enforcement of subpoenas. In Committee on the Judiciary v. McGahn, the court dismissed the case for lack of a cause of action, even though the full D.C. Circuit court, sitting en banc in an earlier appeal in the same case, overruled the same panel a few days earlier when it concluded that the House Judiciary Committee had standing to enforce a subpoena against former White House Counsel Donald McGahn as part of its impeachment inquiry earlier this year. Unless the en banc D.C. Circuit or the Supreme Court overturns the panel decision, the House is now limited to enforcing its subpoenas through criminal proceedings pursuant to 2 U.S.C. § 192, or exercising its own “inherent contempt” authority. This week, the House asked the full D.C. Circuit to review the decision en banc.

Until last week’s decision, the House relied on the U.S. District Court for the District of Columbia’s ruling in Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (2008), to seek civil enforcement for its subpoenas. Unlike the Senate, which has express statutory authority to bring a civil suit to enforce its subpoenas, see 2 U.S.C. §§ 288b, 288d and 28 U.S.C. § 1365, the House, according to the Miers court, “has an implied cause of action derived from Article I to seek a declaratory judgment concerning the exercise of its subpoena power.”

In the new panel decision, Judge Thomas Griffith rejected this reasoning outright. Without referencing Miers, he concluded that the House lacks any cause of action—under Article I, the “traditional rules of equity,” or the Declaratory Judgment Act—to seek civil enforcement of its subpoenas. Judge Karen Henderson joined with Judge Griffith and Judge Judith Rogers dissented.

First, the court rejected the argument that the House has inherent power under Article I to seek civil enforcement of a subpoena “in furtherance of its constitutional power of inquiry.” The majority explained that Congress’s decision to authorize only the Senate—and not the House—to seek civil enforcement of subpoenas, and to exclude suits that involve executive branch assertions of “governmental privilege,” 28 U.S.C. 1365(a), meant that “Congress has declined to authorize suits like the Committee’s twice over.”

Second, the court found that congressional subpoena enforcement was not an exercise of the court’s “traditional equitable powers.” According to the majority, upon adoption of the Federal Rules of Civil Procedure in 1938, federal courts no longer recognized a distinction between courts of law and equity. Because the House could not point to any subpoena enforcement case prior to the 1970s, the court found that could not “possibly have been traditionally available in courts of equity.” While “Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, [] authorizing that remedy ourselves would be ‘incompatible with the democratic and self-depreciating judgment’ that we lack the ‘power to create remedies previously unknown to the equity jurisprudence.’”

Finally, the court rejected the House’s argument that the Declaratory Judgment Act permits it to bring suit to enforce its subpoenas. The majority explained that the Act “does not itself ‘provide a cause of action’ as the ‘availability of declaratory relief presupposes the existence of a judicially remediable right.’” Thus, because Article I and the rules of equity do not independently permit the House to enforce a subpoena, the Declaratory Judgment Act does not allow the House to “bootstrap its way into federal court.”

By depriving the House of its cause of action to seek civil enforcement of subpoenas for testimony and documents, the McGahn opinion relegates the House to two much more cumbersome, and much less politically palatable, options. First, if a witness refuses to testify before the House or a House committee pursuant to a subpoena, the Committee may cite the witness for contempt, and refer the matter to the full House. If the House issues a contempt citation, pursuant to 2 U.S.C. § 192, the matter is referred to the U.S. Attorney for the District of Columbia for prosecution. Although this option permits the House to seek to punish recalcitrant witnesses, it does little to compel testimony or document production. Moreover, the Justice Department has usually declined to prosecute such contempt when it is directed at officials within the executive branch.

Second, the House may exercise its “inherent contempt” power to jail or fine recalcitrant witnesses. While this option remains technically available, it has not be used since the 1930s, because, according to the Congressional Research Service, the arrest and detention of a witness by Congress is “cumbersome, inefficient, and unseemly.”

Although Congress could empower the House by statute to enforce subpoenas by civil action against any witness—including executive branch officials—that would require assent from the Republican Senate and Presidential approval (or veto override), which is not going to happen in this environment.

Like the earlier decision on standing, the case now seems headed to the full D.C. Circuit for consideration, where the full D.C. Circuit will have the opportunity to consider both the arguments presented here and the rationale advanced in Miers. Covington will continue to monitor these significant developments in congressional subpoena power.

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Photo of Matthew Shapanka Matthew Shapanka

Matthew Shapanka draws on more than 15 years of experience from Capitol Hill, private practice, state government, and political campaigns to counsel clients significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by…

Matthew Shapanka draws on more than 15 years of experience from Capitol Hill, private practice, state government, and political campaigns to counsel clients significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies, many with significant legal and political opportunities and risks. Matt also leads the firm’s state policy practice, advising clients on complex multistate legislative and regulatory policy matters and managing state advocacy efforts.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters before the Committee, including federal election and campaign finance law, Federal Election Commission nominations, and oversight of legislative branch agencies, U.S. Capitol security, and Senate rules and regulations. Most significantly, Matt led the Committee’s staff work on the Electoral Count Reform Act – a landmark bipartisan law enacted in 2022 to update the procedures for certifying and counting votes in presidential elections —and the Committee’s joint (with the Homeland Security Committee) bipartisan investigation into the security planning and response to the January 6, 2021 attack on the Capitol.

Both in Congress and at Covington, Matt has prepared dozens of corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at congressional committee hearings and depositions. He is also an experienced legislative drafter who has composed dozens of bills introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, and the election and political laws of states and municipalities across the country.

Before law school, Matt worked in the administration of former Governor Deval Patrick (D-MA) as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on policy, communications, and compliance matters for federal economic recovery funding awarded to the state. He has also worked for federal, state, and local political candidates in Massachusetts and New Hampshire.