Litigate or Legislate?

Recently, the U.S. House of Representatives considered – and the Democratic majority passed – a very controversial resolution that bypasses past precedent of voting first to hold an individual in contempt of Congress before suing for information that has been requested. Introduction of this resolution follows the Democrats' ongoing dissatisfaction with Special Counsel Robert Mueller's completed investigation into Russian interference in the 2016 presidential election and their loud denial about the findings of the report.

While H. Res 430 was introduced to enforce some active subpoenas, the unprecedented resolution could cause serious long-term damage to the House as an institution. Specifically, H. Res. 430 authorizes the Judiciary Committee to initiate and intervene in judicial proceedings to force Attorney General William Barr and former White House Counsel Don McGahn to comply with certain subpoenas related to the Mueller Report. But the resolution also authorizes committee chairs to sue to enforce future subpoenas after only a vote of the partisan Bipartisan Legal Advisory Group rather than a vote of the entire House – as has been done historically.

In more than two centuries as an institution, the House has only filed lawsuits twice to seek to enforce a subpoena for documents. In 2007, the House sought documents from former White House Counsel Harriet Miers. In 2012, the House sought documents from then Attorney General Eric Holder as a result of a congressional investigation into the Fast and Furious scandal. In both cases, the House had already voted to hold both Miers and Holder in contempt of Congress before rushing into litigation. Moreover, 138 days elapsed in the Miers case from the first document request to the Judiciary Committee voting to hold her in contempt. In the Holder case, it was significantly longer – 464 days elapsed from the first document request to the committee voting to hold him in contempt; that's more than a year of waiting and exhausting other options before rushing into litigation.

With the issue relating to the recent resolution, Democrats are indeed rushing forward at a much faster pace. Just 44 days elapsed from the date of the first document request to the Attorney General until the Judiciary Committee voted to hold him in contempt. But again, the whole House has not yet voted to hold either Barr or McGahn in contempt of Congress. That means when this matter goes before the courts, it will do so as a case of first impression and under an untested legal theory.

While H. Res. 430 comes from a dispute over documents related to the Mueller Report, it also stems from the inherent oversight authority of Congress, including the legislative branch's ability to perform oversight functions over the executive branch. And it falls into the fuzzy boundaries between the branches of government – when and how lawmakers may compel the executive branch to turn over documents to the legislative branch.

There is some important context worth noting about what exactly Democrats are demanding. The subpoenaed documents include information pertaining to grand jury evidence which – by law – cannot be made public. Although it is true that Congress makes laws, lawmakers are by no means above the law and they do not have the power to allow someone else to be above the law either. Attorney General Barr has been entirely transparent in his handling of Special Counsel Mueller's findings, and he has remained willing to negotiate terms with Democratic members of the House Judiciary Committee. Further, Democrats could have introduced a bill to authorize Attorney General Barr to make necessary disclosures like the ones at issue, but they have not sought that course of action.

I don't deny that the Democratic majority can sue for documents. However, litigation is a serious matter, and every effort should be made to resolve issues before initiating lawsuits. For that reason, I offered a commonsense amendment to H. Res. 430 during Rules Committee consideration. My amendment would simply require committee chairs to guarantee they have made good faith efforts to exhaust all available options to acquire documents prior to filing a suit. Unfortunately, Democrats blocked it.

Make no mistake, the recent resolution will cause problems for Republicans and Democrats alike in the long run — and likely much sooner for my Democratic colleagues than they think. When you litigate, it indeed becomes much harder to legislate.