McGahn Amicus

USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 1 of 5
PANEL DECISION ISSUED FEBRUARY 28, 2020
No. 19-5331
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
COMMITTEE ON THE JUDICIARY OF THE UNITED STATES

HOUSE OF REPRESENTATIVES,
Plaintiff-Appellee,
v.
DONALD F. MCGAHN, II,

Defendant-Appellant.
On Appeal from the U.S. District Court for the District of Columbia (No.
19-cv-2379) (Hon. Ketanji Brown Jackson, District Judge)
MOTION FOR INVITATION TO FILE BRIEF OF AMICI CURIAE BY

FORMER MEMBERS OF CONGRESS AND FORMER EXECUTIVE
BRANCH OFFICIALS IN SUPPORT OF REHEARING
Justin Florence Irvin B. Nathan

Jamila G. Benkato* John A. Freedman
Cameron O. Kistler Andrew T. Tutt
Justin Vail** Kaitlin Konkel
PROTECT DEMOCRACY PROJECT Samuel F. Callahan
2020 Pennsylvania Avenue, N.W. ARNOLD & PORTER
Suite 163 KAYE SCHOLER LLP
Washington, DC 20006 601 Massachusetts Ave., NW
(202) 579-4582 Washington, DC 20001
justin.florence@protectdemocracy.org (202) 942-5000
*Admitted to practice in California, not D.C.; john.freedman@arnoldporter.com
practice consistent with D.C. App. R. 49(c)(3).
** Admitted to practice in Missouri, not D.C.;
Ben Berwick
Steven A. Hirsch PROTECT DEMOCRACY PROJECT
PROTECT DEMOCRACY PROJECT 15 Main St., Suite 312
2120 University Avenue Watertown, MA 02472
Berkeley, California 94704 (202) 579-4582
stephen.hirsch@protectdemocracy.org ben.berwick@protectdemocracy.org
(Page 1 of Total)
Proposed amici curiae—former Members of Congress and former
executive officials—respectfully request an invitation from this Court,
pursuant to Federal Rule of Appellate Procedure 29(b)(2) and Circuit
Rules 29(b) and 35(f), to file the attached brief as amici in support of the
petition for panel rehearing and/or rehearing en banc. See Ex. 1 (pro-
posed brief). The Appellee Committee consents to the motion; the Appel-
lant takes no position on the motion.
Amici hope that the Court will benefit from their unique perspec-
tive and extensive expertise. Many are former Senators and Represent-
atives from both sides of the aisle. During their time in office, they par-
ticipated in the accommodations process and gained an intimate under-
standing of why it is so crucial for Congress to be able to obtain infor-
mation from the Executive Branch. Other amici served as high-ranking
Executive Branch officials. So they have experience receiving congres-
sional demands for information and have seen the accommodations pro-
cess from the other side. Accordingly, amici suggest that, given their
vast collective experience with the congressional accommodations pro-
cess, they can help inform the Court’s understanding of the accommoda-
tions process as well as the constitutional stakes at issue here.
(Page 2 of Total)
In particular, amici share a deep concern that the panel’s decision
will cripple Congress’s ability to obtain the information it needs in order
to hold the executive accountable for overreach and lawbreaking. They
further fear that the panel decision will destabilize the constitutional
checks and balances our Founders fought so hard to establish—with po-
tentially devastating consequences for the long-term stability of our
democracy. Amici therefore request an invitation to submit the attached
brief urging the Court to rehear this case en banc and to hold that the
subpoena at issue is valid and enforceable in court.
(Page 3 of Total)
Dated: March 12, 2020 Respectfully submitted,
/s/ John A. Freedman____

(202) 579-4582 Washington, DC 20001
Ben Berwick
(Page 4 of Total)
CERTIFICATE OF SERVICE
I hereby certify, pursuant to Fed. R. App. P. 25(d) and Cir. R. 25,
that on March 12, 2019, the foregoing motion was electronically filed
with the Clerk of the Court using the CM/ECF system, which will send
a notification to the attorneys of record in this matter who are regis-
tered with the Court’s CM/ECF system.
/s/ John A. Freedman

John A. Freedman
(Page 5 of Total)
PANEL DECISION ISSUED FEBRUARY 28, 2020
No. 19-5331
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
COMMITTEE ON THE JUDICIARY OF THE UNITED STATES

HOUSE OF REPRESENTATIVES,
Plaintiff-Appellee,
v.
DONALD F. MCGAHN, II,

Defendant-Appellant.
On Appeal From the U.S. District Court for the District of Columbia
(No. 19-cv-2379) (Hon. Ketanji Brown Jackson, District Judge)
BRIEF OF FORMER MEMBERS OF CONGRESS AND FORMER

EXECUTIVE BRANCH OFFICIALS AS AMICI CURIAE IN
SUPPORT OF REHEARING EN BANC

(202) 579-4582 Washington, DC 20001
Ben Berwick
(Page 6 of Total)
CERTIFICATE OF PARTIES, RULINGS, AND RELATED

CASES PURSUANT TO CIRCUIT RULE 28(a)(1)
A. Parties and Amici. All parties who appeared before the dis-
trict court appear in Plaintiff-Appellee’s brief. The parties appearing in
this Court include those listed in Plaintiff-Appellee’s brief.
A full list of amici curiae is included as an appendix to this brief.
Amici curiae are not corporate entities for which a corporate dis-
closure statement is required pursuant to Federal Rule of Appellate
Procedure 26.1 and Circuit Rules 27(a)(4) and 28(a)(1)(A).
B. Rulings Under Review. An accurate reference to the ruling
at issue appears in Plaintiff-Appellee’s brief.
C. Related Cases. Amici are not aware of any related cases with-
in the meaning of Circuit Rule 28(a)(1)(C).

John A. Freedman
i
(Page 7 of Total)
STATEMENT REGARDING CONSENT TO FILE AND

SEPARATE BRIEFING
The Appellee Committee consents to the accompanying motion re-
questing an invitation from this Court to file this brief in support of the
petition for panel rehearing and/or rehearing en banc; the Appellant
takes no position on the motion.
Pursuant to Circuit Rule 29(d), amici certify that a separate brief
is necessary to provide the unique perspective of a large, bipartisan
group of former legislators and Executive Branch officials having vast
collective experience with the congressional subpoena process.

John A. Freedman
STATEMENT OF AUTHORSHIP AND

FINANCIAL CONTRIBUTIONS
No party’s counsel authored this brief in whole or in part. Nor did
any party or party’s counsel, or any other person other than amici
curiae, contribute money that was intended to fund preparing or
submitting this brief.

John A. Freedman
ii
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TABLE OF CONTENTS
Page
CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

PURSUANT TO CIRCUIT RULE 28(A)(1) ..................................... I
STATEMENT REGARDING CONSENT TO FILE AND SEPARATE

BRIEFING ....................................................................................... II
STATEMENT OF AUTHORSHIP AND FINANCIAL

CONTRIBUTIONS.......................................................................... II
TABLE OF AUTHORITIES .................................................................... IV
INTEREST OF AMICI CURIAE............................................................... 1
STATUTES AND REGULATIONS .......................................................... 2
ARGUMENT ............................................................................................. 2
I. The availability of judicial enforcement is necessary to ensure

Congress’s ability to check the Executive Branch while protecting
important executive concerns. ......................................................... 5
II. Congress lacks other effective mechanisms to force the Executive

Branch to comply with a subpoena. ................................................. 9
CONCLUSION ........................................................................................ 14
CERTIFICATE OF COMPLIANCE ........................................................ 15
CERTIFICATE OF SERVICE................................................................. 16
APPENDIX—FULL LIST OF AMICI CURIAE ..................................... 17
iii
(Page 9 of Total)
TABLE OF AUTHORITIES
Page(s)
Cases
Cohens v. Virginia,
19 U.S. 264 (1821) ................................................................................. 9
Comm. on Judiciary v. Miers,

558 F. Supp. 2d 53 (D.D.C. 2008) ................................................... 6, 13
Comm. on Oversight and Gov’t Reform v. Holder,

979 F. Supp. 2d 1 (D.D.C. 2013) ........................................................... 6
Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491 (1975) ............................................................................... 8
Marbury v. Madison,
5 U.S. 137 (1803) ................................................................................... 4
McGrain v. Daugherty,
273 U.S. 135 (1927) ............................................................................... 8
Quinn v. United States,

349 U.S. 155 (1955) ............................................................................... 8
Sen. Select Comm. on Presidential Campaign Activities v. Nixon,

498 F.2d 725 (D.C. Cir. 1974) ............................................................... 6
Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ................................................................................. 9
United States v. AT&T Co.,

551 F.2d 384 (D.C. Cir. 1976) ............................................................... 6
United States v. Burr,

25 F. Cas. 30 (C.C.D. Va. 1807) (Marshall, C.J.) ................................. 8
Watkins v. United States,

354 U.S. 178 (1957) ............................................................................. 12
iv
(Page 10 of Total)
Legislative and Executive Materials
116 Cong. Rec. S287 (Jan. 21, 2020) ....................................................... 10
Cong. Globe, 27th Cong., 2d Sess. 580 (1842)......................................... 10
Prosecution for Contempt of Congress of an Executive Branch

Official Who Has Asserted a Claim of Executive Privilege,
8 Op. O.L.C. 101 (1984) ........................................................................ 6
Response to Congressional Requests for Information Regarding

Decisions Made Under the Independent Counsel Act,
10 Op. O.L.C. 68 (1986) .................................................................... 5, 6
Other Authorities
The Federalist No. 51 (Madison) (C. Rossiter ed. 1961) ........................... 7
John E. Bies, Constitutional Hardball and Congress’s Oversight

Authority, Lawfare (April 27, 2019), https://www.lawfareblog.com/
constitutional-hardball-and-congresss-oversight-authority ................ 3
Jeremy Diamond & Allie Malloy, Trump at War With

Democrats: “We’re fighting all the subpoenas,” CNN
(Apr. 24, 2019), https://www.cnn.com/2019/04/24/politics/donald-
trump-fight-subpoenas-don-mcgahn-ridiculous/index.html ................ 6
Louis Fisher, Cong. Res. Servs., Congressional Investigations:

Subpoenas and the Contempt Power 1 (2003) .................................. 2, 3
Brian Naylor, An Acting Government for the Trump

Administration, NPR (April 9, 2019), https://n.pr/39JnMcb ............. 13
Charlie Savage, Trump Vows Stonewall of “All” House

Subpoenas, Setting Up Fight Over Powers, N.Y. Times
(April 24, 2019), https://www.nytimes.com/2019/04/24/
us/politics/donald-trump-subpoenas.html. ........................................... 4
Stephen W. Stathis, Executive Cooperation: Presidential

Recognition of the Investigative Authority of Congress and
the Courts, 3 J. L. & Pol. 183 (1986)..................................................... 3
v
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INTEREST OF AMICI CURIAE
Amici curiae, including a large bipartisan group of former Sena-
tors and Representatives, are deeply concerned that the panel decision
claiming a constitutional inability to hear the House’s subpoena en-
forcement action threatens to eliminate congressional oversight of the
Executive Branch and upset the careful system of checks and balances
on which our Constitution depends. If courts are unavailable as a last
resort to resolve a question of law, then the Executive will have no rea-
son to engage in the accommodations process which has long governed
congressional requests for information from the Executive to carry out
Congress’s oversight and legislative functions. Joining this brief is a bi-
partisan group of individuals—Bill Cohen, Leon Panetta, and Dan
Glickman—who have served both in Congress and in top Cabinet posi-
tions, as well as a bipartisan group of high-ranking Executive Branch
amici who have seen the accommodations process from the other side.
All amici agree that the panel decision invites a seismic shift in
the relationship between the Legislative and Executive Branches. The
decision will effectively end the process of accommodations between the
political branches by removing the Executive’s willingness to compro-
1
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mise with Congress. All amici further agree that, once that happens,
Congress inevitably will be starved of the information it needs to effec-
tively check the Executive Branch, including the very checks to which
the panel opinion would require Congress to resort in order to enforce
subpoenas. Accordingly, amici urge the full Court to rehear this case
and to preserve Congress’s ability to effectively check executive over-
reach and lawbreaking by holding that the subpoena here is valid and
enforceable.
STATUTES AND REGULATIONS
All pertinent materials are contained in Plaintiff-Appellee’s
addendum.
ARGUMENT
For decades, through presidencies and Congresses of both parties,
the accommodations process—though often messy and imperfect—has
fundamentally worked. Congress has been able to request and negotiate
with the Executive Branch for documents and testimony, backed by the
availability of subpoenas, contempt, and litigation if the executive
branch failed to reasonably negotiate. See Louis Fisher, Cong. Res.
Servs., Congressional Investigations: Subpoenas and the Contempt Pow-
2
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er 1 (2003). Since the early nineteenth century, the Executive Branch
has recognized the constitutional legitimacy of congressional requests
for information and has generally cooperated with such requests in good
faith, while still preserving its prerogative to assert executive privilege
on an item-by-item basis. See Stephen W. Stathis, Executive Coopera-
tion: Presidential Recognition of the Investigative Authority of Congress
and the Courts, 3 J. L. & Pol. 183, 188 (1986) (citing “hundreds of in-
stances since 1789 when a chief executive has willingly responded to re-
quests for records in the custody of the Executive Branch”). The result
has generally been “an accommodation that meets the needs of both
branches” and provides members of Congress “with the information re-
quired for legislative needs.” Fisher, supra, at 1.
Unfortunately, the current administration has repudiated this
historical practice and has stopped participating in the accommodations
process. See, e.g., John E. Bies, Constitutional Hardball and Congress’s
Oversight Authority, Lawfare (April 27, 2019).1 Instead, it has routinely
stonewalled congressional oversight requests, declaring itself absolutely
immune from congressional requests for information without even in-
1https://www.lawfareblog.com/constitutional-hardball-and-congresss-
oversight-authority.
3
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voking executive privilege. See, e.g., Charlie Savage, Trump Vows
Stonewall of “All” House Subpoenas, Setting Up Fight Over Powers,
N.Y. Times (April 24, 2019).2 The panel’s decision acquiesces in this
power grab and “effectively dismantles the accommodations process” by
diminishing any incentive that the “Executive Branch might have to
reach an accommodation.” Slip. Op. 24-25 (Rogers, J., dissenting).
Amici urge the full Court to consider this case of extraordinary
national importance. They submit this brief to make two simple points
based on their experience with the accommodations process. First, that
process has worked for decades in large part because both political
branches have understood that Congress can turn to the courts as a last
resort to decide questions of law, consistent with the duty of the judici-
ary “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177
(1803). If the judiciary abdicates from this duty, the Executive Branch
will have succeeded in effectively neutralizing the accommodations and
congressional-oversight processes, severely undermining Congress’s
ability to check the Executive and weakening our system of checks and
balances. Second, the other congressional powers that the panel sug-
2https://www.nytimes.com/2019/04/24/us/politics/donald-trump-
subpoenas.html.
4
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gests that Congress could use instead—such as impeachment, the pow-
er of the purse, lawmaking, or appointments—are impractical, un-
wieldy, and unlikely to work effectively as a check on executive power.
In short, the panel opinion accedes too readily in this Administra-
tion’s attempt to dismantle a key constitutional check on the Executive
branch—one that historically has served to ensure that the President
and other Executive Branch officials, high and low, are not above the
law. Amici urge the full Court to rehear this matter and to reverse the
panel so as to prevent the collapse of the accommodations process and
ensure continued vitality of the separation of powers.
I. The availability of judicial enforcement is necessary to

ensure Congress’s ability to check the Executive Branch
while protecting important executive concerns.
Amici have seen from both sides the compromise and negotiation
inherent in congressional investigations. Based on their experience,
amici know that this accommodations process works in large part be-
cause Congress and the Executive have understood that the courts will
provide a backstop if the Executive unreasonably fails to comply with
legitimate demands for information. See Response to Congressional Re-
quests for Information Regarding Decisions Made Under the Independ-
5
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ent Counsel Act, 10 Op. O.L.C. 68, 83 (1986); Prosecution for Contempt
of Congress of an Executive Branch Official Who Has Asserted a Claim
of Executive Privilege, 8 Op. O.L.C. 101, 137 (1984). This assumption
has been confirmed by the instances in which Congress has gone to
court to enforce subpoenas. See, e.g., Comm. on Oversight and Gov’t Re-
form v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013); Comm. on Judiciary v.
Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); see also United States v. AT&T
Co., 551 F.2d 384 (D.C. Cir. 1976); Sen. Select Comm. on Presidential
Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).
If allowed to stand, the panel’s decision will destroy the accommo-
dations process and encourage yet more executive stonewalling—
stonewalling that already threatens to become the norm. See, e.g., Jer-
emy Diamond & Allie Malloy, Trump at War With Democrats: “We’re
fighting all the subpoenas,” CNN (Apr. 24, 2019).3 The current admin-
istration will interpret the panel’s decision as a carte blanche invitation
to refuse to share any information with Congress. Congress’s ability to
conduct core legislative functions—including oversight and lawmak-
ing—will be severely hamstrung.
3https://www.cnn.com/2019/04/24/politics/donald-trump-fight-
subpoenas-don-mcgahn-ridiculous/index.html.
6
(Page 17 of Total)
Perhaps future administrations will recognize Congress’s legiti-
mate constitutional interests and return to the bargaining table. But
amici fear that the panel decision opened a Pandora’s box not so easily
closed. When faced with a decision to share information with Congress
that is potentially embarrassing—or worse—or to continue this admin-
istration’s court-blessed obstinance, future administrations may well
choose the latter. Indeed, the Framers anticipated that each branch
would jealously guard the powers it held. Ambition counteracting ambi-
tion is core to our constitutional design, but it is possible only when
each branch has the “necessary constitutional means and personal mo-
tives to resist encroachments of the others.” The Federalist No. 51, at
319 (Madison) (C. Rossiter ed. 1961).
When the federal courts close their doors to Congress and decline
to resolve disputed issues of law in the face of executive intransigence,
it spells the end of Congress’s powers of inquiry. “Experience has taught
that mere requests for such information often are unavailing, and also
that information which is volunteered is not always accurate or com-
plete; so some means of compulsion are essential to obtain what is
needed.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 505 (1975).
7
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It is hard to overstate the consequences of congressional inability
to obtain information from the Executive Branch. Congress’s ability to
exercise most of its constitutional powers depends on its powers of in-
quiry. “Without the power to investigate—including…the authority to
compel testimony, either through its own processes or through judicial
trial—Congress could be seriously handicapped in its efforts to exercise
its constitutional function wisely and effectively.” Quinn v. United
States, 349 U.S. 155, 160-61 (1955); see also McGrain v. Daugherty, 273
U.S. 135, 174 (1927) (“[T]he power of inquiry” along with the “process to
enforce it” is an “essential” element of Congress’s execution of its consti-
tutional powers.). The panel decision will weaken Congress’s ability to
counterbalance executive power and hasten the continued transfor-
mation of our government from the representative democracy that the
founders sought into something more like the monarchy they fought a
war to escape. Cf. United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va.
1807) (Marshall, C.J.) (under the English Constitution, the King could
“do no wrong,” “no blame [could] be imputed to him,” and therefore he
could not be served with process).
8
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In this case, the legal issue that divides the parties is whether
former high-level White House officials are “absolutely immune” from
congressional subpoenas. That is an issue for a court to resolve, as the
district court here did. Courts have “no more right to decline the exer-
cise of jurisdiction which is given, than to usurp that which is not giv-
en.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting
Cohens v. Virginia, 19 U.S. 264, 404 (1821)). Courts routinely resolve
subpoena disputes. This subpoena should be no different.
II. Congress lacks other effective mechanisms to force the

Executive Branch to comply with a subpoena.
The panel decision seeks to minimize its impact by suggesting
that Congress has other mechanisms for enforcing a subpoena. But as
Judge Rogers’s dissent explains, these other mechanisms are “impracti-
cable.” Slip Op. 17. The Executive Branch itself has recognized that
court enforcement is Congress’s only realistic method for ensuring com-
pliance with subpoenas. Id. at 17-18 (discussing OLC opinions). In fact,
many of the panel’s proffered enforcement mechanisms depend on the
very congressional investigative powers that the panel decision under-
mines. So even if some of those alternative mechanisms were realistic
prior to the panel’s decision—which amici (and OLC) doubt—they are
9
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much less so now that the panel has stripped Congress of the leverage it
once wielded in negotiations with the Executive.
Take, for example, the power to impeach. As John Quincy Adams
explained, it would make a “mockery” of the House’s impeachment pow-
er for the House to have the power to impeach but not “the power to ob-
tain the evidence and proofs on which their impeachment was based.”
Cong. Globe, 27th Cong., 2d Sess. 580 (1842). Thus, it “was of very great
importance to the future history of this country” that the House “neces-
sarily” have “the power to call for persons and papers.” Id.4
Like the impeachment power, the power of the purse depends in
part on Congress’s power of inquiry. What good are legal restrictions
Congress places on the President’s ability to spend money if Congress
4 Indeed, this administration has, at times, taken the position that the
method by which Congress should seek to enforce subpoenas is not
through impeachment, but through court enforcement. As the Court
knows, the House impeached President Trump in part for obstruction of
Congress. President Trump’s defense to that article of impeachment
was to argue that the House should have gone to court to seek to force
compliance with its subpoenas after the President directed all who re-
ceived them to disobey them. See 116 Cong. Rec. S287, S384 (Jan. 21,
2020) (Jay Sekulow, counsel to President Trump) (“So take Article III of
the United States Constitution and remove it. We’re acting as if the
Courts are an improper venue to determine constitutional issues of this
magnitude? That is why we have courts. That is why we have a federal
judiciary.”).
10
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has no power to investigate whether the President is in fact observing
those restrictions? What incentive does the President have to follow
spending restrictions if the House cannot investigate noncompliance to
prosecute an impeachment case?
As a practical matter, the only effective way to use the power of
the purse to elicit information guarded by the Executive would be for
Congress to categorically refuse appropriations until the Executive
turned over the requested information. But amici’s government service
convinces them that the threat of withholding such across-the-board
funds will be far too blunt, and too detrimental to our nation, to justify
wielding in service of an oversight dispute.
In the first place, Congress can only exercise that tool every so of-
ten in conjunction with the annual appropriations process. And in at
least some instances in which Congress could theoretically use its power
to shut down the government to exert leverage, political realities such
as wars, pandemics, and financial meltdowns—times, incidentally, at
which there is usually the greatest need for effective congressional over-
sight—will make Congress’s power to shut down the government practi-
cally impossible to exercise. More important, Congress shouldn’t have to
11
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use the United States’ credit rating, retirees’ social-security checks, and
food-stamp recipients’ dinners to obtain information that it has had the
authority to access since the founding and that has been universally
acknowledged to be essential to “effective and honest” government.
Watkins v. United States, 354 U.S. 178, 194-95 (1957).
Congress’s legislative and confirmation levers are no better substi-
tutes. For Congress to use legislation as leverage in an investigative
dispute, (1) it must be considering legislation that the President sees as
an urgent priority, and (2) Members of Congress with the power to im-
pact progress on that legislation must agree that the national interest—
and their own political interest—is better served by getting information
from the Executive than by moving the legislation forward. The circum-
stances in which these two conditions are both present will not be near-
ly as frequent as those in which congressional committees request in-
formation that the President does not want to turn over.
The confirmation power is even less useful in extracting infor-
mation from a resistant Executive. It is of course of no use to the House.
12
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And it is of minimal use to the Senate when the President routinely
staffs his administration with acting appointees.5
So where does the panel opinion leave Congress? Perhaps it could
try to use its bully pulpit against the Executive, see Slip Op. 32, or
maybe even try to invoke its inherent contempt powers to arrest delin-
quent officers. Neither is a promising prospect—particularly inherent
contempt. Congress’s contempt powers have fallen into disuse, and “im-
prisoning current (and even former) senior presidential advisors and
prosecuting them before the House” risks a potential “stand-off between
the Sergeant–at–Arms and executive branch law enforcement officials,”
potential violent confrontations, and “a grave risk of precipitating a
constitutional crisis.” Miers, 558 F. Supp. 2d at 92.
That, in turn, should ring constitutional alarm bells. Congress
shouldn’t be required to hold the people’s business hostage in order to
get President Trump to do what other presidents for centuries have rec-
ognized as essential for our democracy. Our Constitution does not and
should not place Congress between the Scylla of placing the President
5 See, e.g., Brian Naylor, An Acting Government for the Trump Admin-
istration, NPR (April 9, 2019), https://n.pr/39JnMcb (noting President
Trump’s remark that “I like ‘acting’ . . . . It gives me more flexibility.”).
13
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above the law by turning a blind eye to executive lawbreaking and the
Charybdis of making agencies go unfunded and headless.
CONCLUSION
The Court should grant rehearing en banc, reverse the panel de-
cision, and hold the subpoena here valid and enforceable.
Dated: March 12, 2020 Respectfully submitted,

/s/ John A. Freedman____
(202) 579-4582 Washington, DC 20001
Ben Berwick
14
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), I hereby certify that this brief
complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and
32(a)(7)(B) because it contains 2,583 words, excluding the parts
exempted by Fed. R. App. P. 32(f) and Cir. R. 32(e)(1). I further certify
that this brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because the brief was prepared in 14-point Century Schoolbook font
using Microsoft Word.

John A. Freedman
15
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CERTIFICATE OF SERVICE
I hereby certify, pursuant to Fed. R. App. P. 25(d) and Cir. R. 25,
that on March 12, 2019, the foregoing corrected brief was electronically
filed with the Clerk of the Court using the CM/ECF system, which will
send a notification to the attorneys of record in this matter who are reg-
istered with the Court’s CM/ECF system.

John A. Freedman
16
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APPENDIX—FULL LIST OF AMICI CURIAE
Thomas Andrews
U.S. House of Representatives (D-Maine), 1991–1995
William Baer
U.S. Acting Associate Attorney General, 2016–2017
U.S. Assistant Attorney General for the Antitrust Division, 2013–2016
Brian Baird
U.S. House of Representatives (D-Washington), 1999–2011
Michael Barnes
U.S. House of Representatives (D-Maryland), 1979–1987
Steve Bartlett
U.S. House of Representatives (R-Texas), 1983–1991
Douglas Bereuter
U.S. House of Representatives (R-Nebraska), 1979–2004
Howard Berman
U.S. House of Representatives (D-California), 1983–2013
Rick Boucher
U.S. House of Representatives (D-Virginia), 1983–2011
Barbara Boxer
U.S. Senate (D-California), 1993–2017
Bruce Braley
U.S. House of Representatives (D-Iowa), 2007–2015
Amb. Carol Moseley Braun

U.S. Senate (D-Illinois), 1993–1999
17
(Page 28 of Total)
Roland Burris
U.S. Senate (D-Illinois), 2009–2010
Lois Capps
Jean Carnahan
U.S. Senate (D-Missouri), 2001–2002
Robert Carr
U.S. House of Representatives (D-Michigan), 1975–1981, 1983–1995
Rod Chandler
U.S. House of Representatives (R-Washington), 1983–1993
Linda Chavez
White House Director of Public Liaison, 1985
Chairman, National Commission on Migrant Education, 1988–1992
Bill Cohen
U.S. Secretary of Defense, 1997–2001
U.S. Senate (R-Maine), 1979–1997
U.S. House of Representatives (R-Maine), 1973–1979
James Cole
U.S. Deputy Attorney General, 2010–2015
Tom Coleman
U.S. House of Representatives (R-Missouri), 1976–1993
Jerry Costello
U.S. House of Representatives (D-Illinois), 1987–2013
Mark S. Critz
U.S. House of Representatives (D-Pennsylvania), 2010–2013
Joe Crowley
U.S. House of Representatives (D-New York), 1999–2019
18
(Page 29 of Total)
Tom Daschle
U.S. Senate (D-South Dakota), 1987–2005
U.S. House of Representatives (D-South Dakota), 1979–1987
Lincoln Davis
U.S. House of Representatives (D-Tennessee), 2003–2011
Mark Dayton
U.S. Senate (D-Minnesota), 2001–2007
John W. Dean
White House Counsel, 1970–1973
Associate Deputy Attorney General, 1969–1970
Dennis DeConcini
U.S. Senate (D-Arizona), 1977–1995
Chris Dodd
U.S. Senate (D-Connecticut), 1981–2001
U.S. House of Representatives (D-Connecticut),1975–1981
Byron Dorgan
U.S. Senate (D-North Dakota), 1992–2011
U.S. House of Representatives (D-North Dakota), 1981–1992
Steve Driehaus
U.S. House of Representatives (D-Ohio), 2009–2011
David Durenberger
U.S. Senate (R-Minnesota), 1978–1995
Donna Edwards
Mickey Edwards
U.S. House of Representatives (R-Oklahoma), 1977–1993
19
(Page 30 of Total)
Sam Farr
Vic Fazio
Emil Frankel
Assistant Secretary for Transportation Policy,
U.S. Department of Transportation, 2002–2005
Martin Frost
U.S. House of Representatives (D-Texas), 1979–2005
Richard Gephardt
U.S. House of Representatives (D-Missouri), 1977–2005
Stuart M. Gerson
Acting Attorney General of the United States, 1993
Assistant Attorney General, Civil Division, 1989– 1993
Wayne Gilchrest
U.S. House of Representatives (R-Maryland), 1991–2009
Dan Glickman
U.S. House of Representatives (D-Kansas), 1977–1995
Michael Greenberger
U.S. Principal Deputy Associate Attorney General, 1999–2001
Counselor to the U.S. Attorney General, 1999
Jimmy Gurulé
Assistant Attorney General, Department of Justice, 1990–1992
Assistant U.S. Attorney, 1985–1989
Under Secretary for Enforcement,
Department of the Treasury, 2001–2003
20
(Page 31 of Total)
Tom Harkin
U.S. Senate (D-Iowa), 1985–2015
U.S. House of Representatives (D-Iowa), 1975–1985
Paul Hodes
U.S. House of Representatives (D-New Hampshire), 2007–2011
Elizabeth Holtzman
Gordon J. Humphrey
U.S. Senate (R-New Hampshire), 1979–1990
Bob Inglis
U.S. House of Representatives (R-South Carolina),
1993–1999, 2005–2011
Steve Israel
J. Bennett Johnston
U.S. Senate (D-Louisiana), 1972–1997
David Jolly
U.S. House of Representatives (R-Florida), 2014–2017
Steve Kagen
U.S. House of Representatives (D-Wisconsin), 2007–2011
Leon Kellner
U.S. Attorney for the Southern District of Florida, 1985–1988
Bob Kerrey
U.S. Senate (D-Nebraska), 1989–2001
Mary Jo Kilroy
U.S. House of Representatives (D-Ohio), 2009–2011
21
(Page 32 of Total)
Paul G. Kirk, Jr.

U.S. Senate (D-Massachusetts), 2009–2010
Ron Klein
U.S. House of Representatives (D-Florida), 2007–2011
James Kolbe
U.S. House of Representatives (R-Arizona), 1985– 2007
Mike Kopetski
U.S. House of Representatives (D-Oregon), 1991–1995
Bob Krueger
U.S. Senate (D-Texas), 1993
Steven T. Kuykendall
U.S. House of Representatives (R-California), 1999– 2001
Larry LaRocco
U.S. House of Representatives (D-Idaho), 1991–1995
James Leach
U.S. House of Representatives (R-Iowa), 1977–2007
John LeBoutillier
U.S. House of Representatives (R-New York), 1981–1983
Mel Levine
Matthew McHugh
John McKay
U.S. Attorney for the Western District of Washington, 2001–2007
22
(Page 33 of Total)
Tom McMillen
Brad Miller
U.S. House of Representatives (D-North Carolina), 2003–2013
Walt Minnick
U.S. House of Representatives (D-Idaho), 2009–2011
Connie Morella
U.S. House of Representatives (R-Maryland), 1987–2003
Leon Panetta
U.S. Secretary of Defense, 2011–2013
Director, Central Intelligence Agency, 2009–2011
White House Chief of Staff, 1994–1997
Director, Office of Management and Budget, 1993–1994
Earl Pomeroy
U.S. House of Representatives (D-North Dakota), 1993–2011
Trevor Potter
Chair, Federal Election Commission, 1994
Commissioner, Federal Election Commission, 1991–1995
Silvestre Reyes
Max Sandlin
James Sasser
U.S. Senate (D-Tennessee), 1977–1995
Claudine Schneider
U.S. House of Representatives (R-Rhode Island), 1981–1991
23
(Page 34 of Total)
Pat Schroeder
U.S. House of Representatives (D-Colorado), 1973–1997
Allyson Schwartz
U.S. House of Representatives (D-Pennsylvania), 2005–2015
Christopher Shays
U.S. House of Representatives (R-Connecticut), 1987–2009
David Skaggs
U.S. House of Representatives (D-Colorado), 1987–1999
Peter Smith
U.S. House of Representatives (R-Vermont), 1989–1991
Alan Steelman
U.S. House of Representatives (R-Texas), 1973–1977
Charlie Stenholm
Bart Stupak
U.S. House of Representatives (D-Michigan), 1993–2011
John Tierney
U.S. House of Representatives (D-Massachusetts), 1997–2015
Jim Turner
Henry Waxman
Kimberly L. Wehle
Assistant U.S. Attorney, Civil Division, 1997–1999
Associate Independent Counsel, Whitewater Investigation, 1996–1997
24
(Page 35 of Total)
Robert Weiner
Senior Counsel in White House, 1997–1998
Christie Todd Whitman

Administrator, Environmental Protection Agency, 2001–2003
Lawrence Wilkerson
Chief of Staff to U.S. Secretary of State, 2002–2005
Dick Zimmer
U.S. House of Representatives (R-New Jersey), 1991–1997
25
(Page 36 of Total)

McGahn Amicus

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USCA Case #19-5331 Document #1833132 Filed: 03/12/2020 Page 1 of 5

PANEL DECISION ISSUED FEBRUARY 28, 2020

COMMITTEE ON THE JUDICIARY OF THE UNITED STATES

DONALD F. MCGAHN, II,

MOTION FOR INVITATION TO FILE BRIEF OF AMICI CURIAE BY

Justin Florence Irvin B. Nathan

Proposed amici curiae—former Members of Congress and former

executive officials—respectfully request an invitation from this Court,

pursuant to Federal Rule of Appellate Procedure 29(b)(2) and Circuit

lant takes no position on the motion.

ticipated in the accommodations process and gained an intimate under-

standing of why it is so crucial for Congress to be able to obtain infor-

mation from the Executive Branch. Other amici served as high-ranking

Executive Branch officials. So they have experience receiving congres-

vast collective experience with the congressional accommodations pro-

tions process as well as the constitutional stakes at issue here.

In particular, amici share a deep concern that the panel’s decision

will cripple Congress’s ability to obtain the information it needs in order

to hold the executive accountable for overreach and lawbreaking. They

checks and balances our Founders fought so hard to establish—with po-

tentially devastating consequences for the long-term stability of our

democracy. Amici therefore request an invitation to submit the attached

subpoena at issue is valid and enforceable in court.

Dated: March 12, 2020 Respectfully submitted,

/s/ John A. Freedman____

I hereby certify, pursuant to Fed. R. App. P. 25(d) and Cir. R. 25,

a notification to the attorneys of record in this matter who are regis-

tered with the Court’s CM/ECF system.

/s/ John A. Freedman

COMMITTEE ON THE JUDICIARY OF THE UNITED STATES

DONALD F. MCGAHN, II,

BRIEF OF FORMER MEMBERS OF CONGRESS AND FORMER

Justin Florence Irvin B. Nathan

CERTIFICATE OF PARTIES, RULINGS, AND RELATED

trict court appear in Plaintiff-Appellee’s brief. The parties appearing in

this Court include those listed in Plaintiff-Appellee’s brief.

A full list of amici curiae is included as an appendix to this brief.

closure statement is required pursuant to Federal Rule of Appellate

Procedure 26.1 and Circuit Rules 27(a)(4) and 28(a)(1)(A).

B. Rulings Under Review. An accurate reference to the ruling

at issue appears in Plaintiff-Appellee’s brief.

in the meaning of Circuit Rule 28(a)(1)(C).

/s/ John A. Freedman

STATEMENT REGARDING CONSENT TO FILE AND

The Appellee Committee consents to the accompanying motion re-

petition for panel rehearing and/or rehearing en banc; the Appellant

takes no position on the motion.

Pursuant to Circuit Rule 29(d), amici certify that a separate brief

is necessary to provide the unique perspective of a large, bipartisan

group of former legislators and Executive Branch officials having vast

collective experience with the congressional subpoena process.

/s/ John A. Freedman

STATEMENT OF AUTHORSHIP AND

No party’s counsel authored this brief in whole or in part. Nor did

curiae, contribute money that was intended to fund preparing or

submitting this brief.

/s/ John A. Freedman

CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

STATEMENT REGARDING CONSENT TO FILE AND SEPARATE

STATEMENT OF AUTHORSHIP AND FINANCIAL

TABLE OF AUTHORITIES .................................................................... IV

INTEREST OF AMICI CURIAE............................................................... 1

STATUTES AND REGULATIONS .......................................................... 2

I. The availability of judicial enforcement is necessary to ensure