https://www.courtlistener.com/recap/gov.uscourts.dcd.210013/gov.uscourts.dcd.210013.53.0_1.pdf
This Court has no doubt that further delay of the Judiciary Committee’s
enforcement of its valid subpoena causes grave harm to both the Committee’s
investigation and the interests of the public more broadly. This is because, as the Court
explained in its Memorandum Opinion, “when a committee of Congress seeks testimony
and records by issuing a valid subpoena in the context of a duly authorized
investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its
own interest, but for the benefit of the People of the United States.” (Mem. Op. at 74.)
Interference with a House committee’s ability to perform its constitutionally assigned
function of gathering relevant and important information concerning potential abuses of
power in a timely fashion injures both the House and the People whose interests the
Congress’s power of inquiry is being deployed to protect. Thus, far from DOJ’s “no
additional harm, no foul” attitude, it is clear that the Judiciary Committee’s ongoing
investigation will be further hampered if the Committee loses its ability to question
McGahn altogether (effectively or not) during the current impeachment inquiry.
DOJ’s insistence that the Judiciary Committee is really most interested in the
Ukraine affair, and thus will not be harmed by any delay with respect to key testimony
concerning certain circumstances revealed in the Mueller Report, fares no better. For
one thing, it is the Judiciary Committee, and not DOJ, that gets to establish the scope of
its own Article I investigation, and the Committee has repeatedly represented that it is,
in fact, reviewing the Mueller Report as part of the House’s impeachment inquiry. (See
Mem. Op. at 10; see also Hr’g Tr., ECF No. 44, at 9:10–11:17.) DOJ’s related
suggestion that the Committee already has what it needs from McGahn for the purpose
of its investigation (see Def.’s Mot. at 8 (asserting that “[t]o the extent that the
Committee remains interested in the events described in the Mueller Report, that report
has been made available to the public with minimal redactions” and “the Committee’s
Chairman and Ranking Member were given access to the unredacted report, other than
grand jury information”)) likewise evidences DOJ’s manifest refusal to accept that the
Judiciary Committee is constitutionally authorized to subpoena witnesses almost
without exception, and that, as a result, the Committee is not limited to calling only
those persons whose testimony is unknown. (See Mem. Op. at 35–39.) DOJ also does
not, and cannot, deny that whatever additional information that the Committee (and the
public) might glean from McGahn’s live testimony will be lost if the Judiciary
Committee does not have an opportunity to question him prior to any House vote on
impeachment. (See Pl.’s Opp’n at 7.)
Finally, although the public does have an interest in appellate review of this
matter, it is not at all clear that the D.C. Circuit would actually lose the ability to decide
“the weighty issues presented in this lawsuit” if the stay is denied, as noted above.
(Def.’s Mot. at 9); see also Miers Stay Opinion, 575 F. Supp. 2d at 205. By contrast,
the Judiciary Committee would almost certainly lose the chance to question McGahn as
part of the present impeachment inquiry if a stay order issues, which would
unquestionably harm the ongoing investigation that the Judiciary Committee is
conducting, and by extension, would also injure the public’s interest in thorough and
well-informed impeachment proceedings. DOJ does not dispute that McGahn is a key
witness to events that the Judiciary Committee seeks to review, or that “Congress could
be seriously handicapped in its efforts to exercise its constitutional function wisely and
effectively” if the Committee is not able to compel timely testimony related to the
current impeachment inquiry. Quinn v. United States, 349 U.S. 155, 160–61 (1955)
(citations omitted). Therefore, any additional delay in McGahn’s compliance with the
Committee’s valid subpoena causes real and certain harm to the Judiciary Committee
and to the broader interests of the public.
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