On April 27, 2020, in the companion cases of Trump et al. v. Mazars USA, LLP et al. and Trump et al. v. Deutsche Bank AG, et al. (for simplicity “Mazars”), the Supreme Court requested the Office of Solicitor General and the parties brief “whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.”^[1] Despite both parties and the Solicitor General arguing that the Mazars cases were justiciable, this post argues otherwise by proposing a framework for evaluating interbranch information disputes concealed within congressional investigations of businesses and individuals.  

Both Mazars and Deutsche Bank are similar cases: congressional committees seeking from private companies (here, information about President Donald Trump) what they could not obtain directly from the Executive branch. The framework to be defended, however, relies on a set of public law principles that will be implicitly defended through exposition of the argument below.  Those assumptions are as follows: 

• When a congressional committee makes the decision to conduct an investigation of the Executive branch (“congressional oversight”), that choice commits Congress to obtaining a political, not legal, remedy for noncompliance. The D.C. Circuit’s accommodation doctrine is unsound because it presumes interbranch information disputes are justiciable. 
• When a congressional committee makes the decision to conduct an investigation of a non-governmental entity, that choice permits Congress to obtain a legal remedy for noncompliance, but only if its investigation is cabined by a legitimate legislative (regulatory) purpose – much in the same way that agency investigations, as distinct from law enforcement, are cabined by a rulemaking purpose under the Administrative Procedure Act.^[2]
• Legal doctrines that apply legislative purpose requirements to congressional oversight or deem regulatory investigations as non-justiciable fail to properly distinguish between “congressional oversight of administration” and “regulatory investigations by Congress”.  Both congressional oversight and regulatory investigations by Congress are creatures of law. 
  • Congressional oversight derives its authority from Article I, §5’s “Rules of [] Proceedings” clause.^[3]
  • Congressional investigations of non-government persons under Congress’s authority to regulate intelligibly pursuant to Article I, §8’s “Necessary and Proper” clause first found statutory articulation in “An act more effectually to enforce the attendance of witnesses on the summons of either House of Congress, and to compel them to discover testimony.”^[4]

But even assuming the validity of the principles outlined, above, Congress would contend that the congressional suit to compel Mazars’s compliance with its subpoena is justiciable under the “regulatory investigation” framework because the dispute is not between the Executive and Legislative branches.  In two essays, I will show why the Mazars case is an interbranch information dispute in the sheep’s clothing of a subpoena enforcement suit.  Part I seeks to establish clarity for the legal framework governing congressional inquiries by showing that the accommodation doctrine, an exhaustion and ripeness doctrine of the D.C. Circuit, has been largely repudiated by the federal courts as an appropriate legal doctrine for evaluating interbranch information disputes. Part II resurrects the accommodation doctrine as a valid doctrine for assessing regulatory disputes between Congress and a non-governmental party when the regulatory inquiry originated as an oversight matter, as in Mazars.  This move simply rearticulates what accommodation actually is: exhaustion of the political process.  The intrabranch political exhaustion doctrine, however, requires the branches to use effective government relations to resolve disputes not as a means of ripening congressional suits against the Executive branch but to ensure regulatory investigations are not a backdoor means for political oversight.  In other words, the test for whether a congressional investigation constitutes political oversight is whether political remedies of appropriations, impeachment and removal, or elections effectively moot the supposed harm to Congress.  

The D.C. Circuit’s accommodation doctrine states that a duly authorized congressional information request to the Executive branch (“oversight”) initiates the “implicit constitutional mandate to seek optimal accommodation . . . of the needs of the conflicting branches.”^[5] This back and forth between the branches has been described by the D.C. Circuit as a constitutionally-mandated process of accommodation by the parties of legislative need and Executive branch confidentiality interests.^[6] Accommodation is “mandated” by the branches “on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in a manner most likely to result in efficient and effective functioning of our governmental system.”^[7]

The D.C. Circuit’s February 28, 2020 McGahn decision, authored by Judge Griffith, shreds the accommodation doctrine in a single stroke: “the entire analysis of the House’s standing to intervene in AT&T I consists of a single sentence, followed by no citations. ‘[D]rive-by jurisdictional rulings of this sort’ typically ‘have no precedential effect.’”^[8] Judge Griffith’s position is that the Supreme Court’s decision in Raines v. Byrd, a legislative standing case, definitively “compels the conclusion that we lack jurisdiction to consider lawsuits between the Legislative and Executive Branches.”^[9]

Even the McGahn District Court, whose decision to enforce the subpoena for the testimony of the President’s counsel was reversed by the D.C. Circuit, skeptically received arguments about accommodation, finding, “the Court cannot accept DOJ’s present reliance on carefully curated rhetoric concerning historical accommodations practices”.^[10] And certainly, Judge Griffith, despite his deprecation of the accommodation doctrine as a tool justifying judicial review, noted its “use” in avoiding “premature[] involve[ment]” of “the courts”.^[11]

The Department of Justice has relied on the accommodation doctrine for nearly half a century as a means of limiting the role of the courts in resolving interbranch information disputes under the belief that such disputes are more appropriately resolved by exercises of good government relations between the branches.^[12]  The rise in frequency of interbranch disputes being litigated, paired with the willingness of district courts in the D.C. Circuit to reach the merits has reflected, even outside the McGahn decision, a convergence against the validity of the accommodation doctrine. 

Daniel Epstein is a the Vice President for Legal and Policy at Trust Ventures, a venture capital firm focused on startups facing regulatory barriers.  Dan is also a PhD candidate in administrative law and empirical methods at George Washington University.  Prior to Trust Ventures, Dan served as Senior Associate Counsel and Special Assistant to the President in the White House, from inauguration until March 2020.  Dan is currently a pending nominee for the United States Court of Federal Claims. 

---

^[1] Supreme Court, Order List, (Apr. 27, 2020), https://www.supremecourt.gov/orders/courtorders/042720zor_6k47.pdf.

^[2] 5 U.S.C. § 552(a)(1); accord. Executive Orders 13892 and 13924 (because investigations under the Administrative Procedure Act proceed via jurisdictional statements that function as “legal standards” those jurisdictional statements are “rules”). 

^[3] Section 136 of the Legislative Reorganization Act, discussed infra, makes explicit that the rules of proceedings clause provides the basis for Congress’s delegation of its power of “continuous watchfulness” to standing committees.

^[4] 11 Stat. 155, c. 19 (1857).  Scholars and practitioners argue that the congressional power of inquiry (of both Executive branch entities and the private sphere) was judicially established in McGrain v. Daugherty. But see Daniel Z. Epstein, The Illusory Precedent of McGrain v. Daugherty, 37 Yale J. Reg. Notice and Comment (2020), https://www.yalejreg.com/nc/essay-the-illusory-precedent-of-mcgrain-v-daugherty-by-daniel-epstein/ (clarifying that McGrain’s holding was limited to investigations of the “private sphere” and thus the legal bases for oversight versus regulatory investigations are separate) (hereinafter “Epstein Essay”). 

^[5] United States v. American Tel. & Tel. Co, 567 F.2d 121, 127 (D.C. Cir. 1977) (hereinafter “AT&T 2”). 

^[6] United States v. American Tel. & Tel. Co., 551 F.2d 384, 385 (D.C. Cir. 1976) (hereinafter “AT&T 1”).  As the AT&T 1 court explained, because the Justice Department sought an injunction against AT&T’s compliance with a House subpoena, the court permitted the House to intervene as “the real defendant in interest[.]” Id. at 389. 

^[7] AT&T 2, supra note 2 at 127 (quoting Address by Hon. Henry J. Friendly (January 29, 1976) (U.S. Department of Justice Bicentennial Lecture Series)). In AT&T 2, the D.C. Circuit held, “each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.” Id.

^[8] Comm. on the Judiciary of the United States House of Representatives v. McGahn, 951 F.3d 510, 525-26 (D.C. Cir. 2020) (internal citation omitted). 

^[9] Raines v. Byrd, 521 U.S. 811, 833 (1997).  Raines found that “no suit [addressed by the D.C. Circuit] was brought on the basis of claimed injury to official authority or power,” id. at 826; accord. Comm. on the Judiciary of the United States House of Representatives v. McGahn, supra note 5 at 526.

^[10] Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 173 (D.D.C. 2019).

^[11] McGahn, supra note 5 at 537.

^[12] Epstein Essay, supra note 4.