DOJ tells court that Congress can’t sue to enforce subpoenas

The Trump administration told a federal judge on Thursday that Congress cannot sue the executive branch, attempting to fight off a House committee’s subpoena for documents related to aborted efforts to add a citizenship question to the 2020 census.

James Burnham, an attorney with the Justice Department, argued that Congress cannot use the courts to enforce its subpoenas. It can only use the legislative tools it has at its disposal, he said.

“If they are enforceable in the courts that would be a revolution in the history of the relationship between the branches,” Burnham said. “These cases would multiply like rabbits.”

D.C. District Judge Randolph D. Moss seemed skeptical of Burnham’s argument.

“It seems to be kind of remarkable to suggest that Congress as an institution can’t enforce its subpoenas,” Moss said, adding that, without that right, congressional subpoenas would be little more than requests.

Burnham responded that Congress has plenty of legislative powers, from appropriations to impeachment, to provide leverage for its subpoenas.

The suggestion that Congress could impeach an official for defying a subpoena is one of several court arguments that the administration has made in recent months that’s in conflict with President Trump’s impeachment defense in his ongoing Senate trial. His defense team has argued that the president cannot be impeached on an obstruction charge for going to court to fight congressional subpoenas.

“The point we made in court is simply that Congress has numerous political tools it can use in battles with the Executive Branch — appropriations, legislation, nominations, and potentially in some circumstances even impeachment,” one Justice Department official told The Hill. “For example, it can hold up funding for the President’s preferred programs, pass legislation he opposes, or refuse to confirm his nominees.”

Megan Barbero, an attorney for the House, argued that it would be impractical to use appropriations as a tool for gaining information from agencies, and pointed out that neither impeaching the president nor holding Cabinet officials in contempt has helped Congress obtain information from the executive branch in recent months.

The House Oversight and Reform Committee sued Attorney General William Barr and Commerce Secretary Wilbur Ross in November for refusing to comply with its subpoenas.

The panel is investigating the Trump administration’s effort to add a citizenship question to this year’s census, an effort that was abandoned after the Supreme Court in June rejected the rationale that the Commerce Department offered for the move.

In July, the House voted to hold Barr and Ross in contempt for not complying with the subpoena, prompting negotiations between the Oversight and Reform Committee and the administration over a document release to break down.

Despite his skepticism over the administration’s arguments about lawmakers’ lack of legal standing, Moss said he was inclined to minimize his involvement in the dispute unless the two sides are at an impasse. He asked them to continue negotiating and file a joint report on their progress on Feb. 13.

—Updated at 4:25 p.m.