White House Counsel Donald McGahn, prior to President Donald Trump announcing the nomination of Judge Brett Kavanaugh to be Associate Justice at the U.S. Supreme Court on July 9, 2018. Photo: Diego M. Radzinschi/ALM

Justice Department lawyers on Monday argued that the House lacks the authority to arrest executive branch officials if they do not comply with congressional subpoenas, saying the Constitution does not explicitly grant lawmakers that power.

In a supplemental brief filed in the U.S. Court of Appeals for the D.C. Circuit's en banc rehearing of the lawsuit seeking former White House counsel Don McGahn's testimony, the DOJ lawyers came out against the argument made by House lawyers that not allowing the House to sue over the subpoena would result in more extreme actions, like the arrest of noncompliant officials. McGahn rejoined Jones Day after leaving the White House last year.

Rather, the DOJ attorneys argued, the House should solely use its political tools, like withholding appropriations or blocking the president's nominees, to take action against the administration.

"As a threshold matter, it is certainly true—contrary to the committee's breathtaking suggestion—that Congress lacks any inherent contempt power to arrest individuals for actions within the scope of their duties as executive officials," the Justice Department's brief reads. "Because Congress has no express contempt power under the Constitution, any such 'implied power' must be 'auxiliary and subordinate,' limited to cases 'of necessity,' and informed by 'the history of the practice of our legislative bodies.' None of those criteria is satisfied here."

"Legislative authority to arrest executive officials is the type of 'great substantive and independent power' that the Constitution would not have left to mere implication, as it would impermissibly 'undermine the authority and independence of … another coordinate branch,'" the DOJ lawyers continued. 

They wrote that Congress has only attempted to arrest administration officials twice before, and "neither effort was ultimately successful."

"Perhaps most importantly for present purposes, unlike with private contemnors, Congress has no need to arrest executive officials, because it can deploy its ample political remedies against the executive branch instead," the Justice Department attorneys wrote.

House lawyers—led by general counsel Douglas Letter—constitutional experts and federal judges have previously acknowledged that Congress' inherent contempt powers are no longer a viable tool to use in enforcement of subpoenas.

Inherent contempt has been used in the past, and the U.S. Supreme Court upheld the authority in a 1927 ruling.

In filing a petition for an en banc rehearing of the McGahn case, House attorneys argued the panel's 2-1 ruling in the case that found the House lacked standing could force their hand to take more extreme actions beyond their political tools.

"Under the panel's logic, to obtain resolution of the legal question here, the House must direct its sergeant at arms to arrest McGahn. The court would be faced with the same legal issues in McGahn's inevitable habeas petition and would surely find them appropriate for judicial consideration," that petition stated. "The committee's right to information, the executive's absolute immunity claim, and the political valence of the case would be the same. This case is justiciable."

The D.C. Circuit granted the en banc rehearing a week later, vacating the original panel opinion against the House.

Judge Thomas Griffith wrote in the panel opinion that the House lacks Article III standing to bring the suit and should use its political weapons to force the executive branch to comply with its information demands.

In a dissenting opinion, Judge Judith Rogers said not allowing the House to seek judicial enforcement of its subpoenas "removes any incentive for the executive branch to engage in the negotiation process seeking accommodation, all but assures future presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties."

In the brief filed Monday, DOJ lawyers argued against Rogers' dissent, including her point that not all of the political remedies available to Congress can be taken up by one chamber.

"Simply put, the objections to the House's political remedies reflect features, not bugs, of our constitutional design," the Justice Department argued.

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