Given judicial skepticism toward relying on accommodation as a framework for evaluating interbranch information disputes, the federal courts have an opportunity to reevaluate these disputes by grounding them in constitutional and statutory text.  As noted in Part I, Congress, in formalizing its committees, based its Executive branch review authority as a function of congressional rules. Only in the aftermath of the Nixon presidency was judicial review of congressional oversight even fathomable – as noted below, the Supreme Court, in Marshall v. Gordon, while granting review of a dispute between a congressional committee and an Executive branch official, determined that a congressional rule, as opposed to a law, cannot bind the Executive.  

A different history characterizes congressional investigations of non-government persons and the judicial review thereof.  Congressional investigations aimed at the development of public-facing regulatory standards were the antecedent to the modern administrative state.  Such inquiries, separate from congressional proceedings based in Article I, §5 (such as impeachment), are grounded in Article I, §8’s “Necessary and Proper” clause and 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.”^[1]

As presented before the D.C. Circuit in Mazars, the House Oversight Committee subpoena to Mazars cited, as its authority, House Rule X, which authorizes the Committee to “investigate ‘any matter at any time’”.^[2]  Standing committee jurisdictional rules trace back to the Legislative Reorganization Act of 1946.^[3]  The Legislative Reorganization Act of 1946 grounded congressional authority to “exercise continuous watchfulness” over the Executive branch in Article I, § 5, clause 2, the “Rules of Proceedings” clause.^[4] Section 101 of the Legislative Reorganization Act states that “[t]he following sections of this title are enacted by the Congress [] [a]s an exercise of the rule-making power of the Senate and the House of Representatives[.]”^[5]

Given this legal context, the Supreme Court has definitively opined that resolutions derived under the rules of proceedings clause are not enforceable against the Executive branch.^[6] On the two occasions prior to 1974 (when the Supreme Court decided Nixon) where Congress held executive branch officials in contempt (George Seward in 1869 and Snowden Marshall in 1916) both were grounded as necessary for the purposes of considering impeachment. 

But if Congress as Executive branch overseer versus Congress as regulator in need of information are distinguishable as a matter of constitutional and legal authority for purposes of judicial review, the accommodation doctrine would lack apparent utility.  The problem Mazars introduces is that Congress may strategically target an Executive branch official through an otherwise garden variety regulatory investigation.  The same Oversight Committee that subpoenaed Mazars also filed suit against the General Services Administration for access to Trump Hotel documents,^[7] and Oversight Committee members participated as plaintiffs in Blumenthal et al. v. Trump,^[8] both cases which, like Mazars, sought judicial sanction against the President for alleged constitutional violations.  The D.C. Circuit in Blumenthal and the D.D.C in Cummings v. Murphy rejected the notion that the congressional plaintiffs had standing to sue.  

The results of these cases, then, would make it difficult to argue that cases like Mazars, a dispute between Congress and a company, raises the sorts of separation of powers concerns that would invoke a bar to standing under Raines v. Byrd.  But not all federal information disputes raising separation of powers questions involve a live conflict between Congress and the Executive branch.  Questions about the scope of presidential communications privilege or the Office of the President’s immunity from civil discovery^[9] have been resolved in the context of citizen suits under information access statutes^[10] as well as conflicts between presidentially-appointed investigators like Independent Counsels.^[11]

In the context of congressional oversight hidden within a regulatory investigation, information law disputes between citizens with public rights against the government provide meaningful judicial standards for the significance and vitality of accommodation.  D.C. Circuit Judge Merrick Garland’s decision in Judicial Watch, Inc. v. U.S. Secret Service“barred . . . end runs” to seek “indirectly” from the President information which would involve “separation-of-powers concerns” when sought directly by Congress.^[12] As such, Congress should not be permitted to obtain a legal remedy by converting an oversight matter into a regulatory investigation when the evidence reflects a congressional failure to exhaust the political remedies available through the oversight process. An oversight matter like Mazars is resolved through either or all of restricting the President’s power legislatively (particularly through appropriations), impeaching and removing the President, removing the President through the electoral process, or utilizing public pressure to force the President to resign.  When Congress pursues oversight, then seeks to avoid a political remedy by substituting the government target for a non-governmental one, it has failed to effectively depoliticize its regulatory investigation.  Politicized regulatory investigations constitute oversight which by definition is not required to have a legitimate rulemaking purpose precisely because it constitutes a political question inappropriate for judicial resolution. 

A revised accommodation principle that requires exhaustion of political remedies prior to a legitimate regulatory investigation being ripe for judicial review invokes several federal administrative law doctrines.  First, it incorporates a requirement that Congress “exhaust” political remedies in making any initial choice to conduct congressional oversight before Congress can meaningfully pursue the same subject matter through a regulatory investigation.^[13]  Second, it applies the requirement that regulatory decisions by agencies be free from political taint to Congress’s regulatory investigations.^[14]

In order for the argument to be valid, the principles governing administrative investigations must meaningfully bind congressional investigations. But this move is not a difficult one once we consider that any legislative power that can be validly delegated to the Executive branch is judicially reviewable as ministerial as opposed to discretionary.  The Supreme Court has long sanctioned congressional delegation of its investigative authority to committees as legislative agencies.^[15]  In 1838, the Supreme Court in Kendall v. United States crafted a distinction between congressional regulation of the ministerial responsibilities of Executive branch officials and the political duties of such officials which would be immune from congressional inspection.^[16]  The idea that Congress can assign ministerial duties to Executive officers and monitor their compliance with such duties is a central ideology held by congressional oversight principals and good government advocates.^[17] It would undermine the project of government accountability to argue that the principles governing quasi-legislative agencies acting with delegated authority to investigate the private sector would not apply to congressional principals when engaged in similar investigations. 

The Supreme Court, the same year that both the Legislative Reorganization Act and the Administrative Procedure Act became law, held that agency exercises of the “subpoena power for securing evidence” with “the aid of the district court in enforcing it” is an “authority” “clearly to be comprehended in the ‘necessary and proper’ clause, as incidental to both its general legislative and its investigative powers.”^[18]  In this same dispute, the Supreme Court defended the legitimacy of judicial enforcement of investigative subpoenas by agencies as such: “to deny the validity of the orders would be in effect to deny not only Congress’ power to enact the provisions sustaining them, but also its authority to delegate effective power to investigate violations of its own laws, if not perhaps also its own power to make such investigations.”^[19] 

Thus, in no uncertain terms, Congress’s own power to conduct regulatory investigations has been delegated to quasi-legislative agencies.  The theory of accommodation presented here, then, involves the application of administrative law principles to regulatory investigations by Congress to ensure they are not backdoor means of political oversight.  Political exhaustion ensures that any regulatory investigation by Congress is for a legitimate rulemaking (legislative) purpose. 

The D.C. Circuit’s October 11, 2019 opinion in Trump v. Mazars stated, “[t]he lesson of McGrain is that an investigation may properly focus on one individual if that individual’s conduct offers a valid point of departure for remedial legislation. Again, such is the case here.”^[20]  The framework presented here permits the distinguishing of Mazars from McGrain by reintroducing “accommodation” as a test for evaluating the legitimacy of regulatory investigations.  

In McGrain, the investigative target was the brother of the former Attorney General and the political remedy – removal of an Attorney General alleged to have engaged in wrongdoing – had already occurred before the case reached any court.^[21] None of these circumstances are present in the Mazars case.  A political exhaustion requirement for regulatory investigations by Congress ensures clarification of justiciable conflicts between Congress and individual witnesses while averting the need for federal courts to craft political remedies in legal terms.  Raines v. Byrd sought to prevent the judicial superintendence of the legislative branch’s own power by concluding that the federal courts lacked the expertise to determine what constitutes an interbranch informational injury.^[22]

Congress has a near limitless amount of institutional remedies to Executive branch noncompliance in the form of inherent contempt, impeachment, removal, appropriations, and/or competitive electioneering.  But Congress’s decision to not engage in political remedies in favor of using its investigative power should not be an opportunity for judicial paternalism as a substitute for effective politics.  Requiring Congress’s regulatory inquiries to be free of any nexus to congressional oversight of administration and to be untainted by the inherently political nature of oversight is not simply a means for protecting a fair process – it prevents Congress from abdicating its political responsibility to vigorously conduct oversight of the Executive branch’s ministerial responsibilities. 

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. 

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^[1] 11 Stat. 155, c. 19 (1857).

^[2] Trump v. Mazars, 940 F.3d 710, 716 (D.C. Cir. 2019). 

^[3] Legislative Reorganization Act of 1946, P.L. 79-601 (codified at 2 U.S.C. § 31). 

^[4] Id., § 136 (codified at 2 U.S.C. § 190d). 

^[5] Id. at § 101. 

^[6] Marshall v. Gordon, 243 U.S. 521 (1917).  Albeit largely dismissed by post-McGrain courts, Kilbourn v. Thompson, 103 U.S. 168 (1880), explicitly rejected the idea that Congress could judicially enforce its contempt power as a form of punishment against private parties; accord.Anderson v. Dunn, 19 U.S. 204 (1821) (recognizing Congress’s inherent contempt power against recalcitrant witnesses). 

^[7] Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018). 

^[8] Blumenthal et al. v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018) (rev’d Blumenthal v. Trump, 949 F.3d 14 (2020)).

^[9] Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 370, 385 (2004).

^[10] See e.g. Buzzfeed, Inc. v. FBI, 2020 U.S. Dist. LEXIS 80640 (D.D.C. May 7, 2020).

^[11] In re Sealed Case, 121 F.3d 729, 734 (D.C. Cir. 1997).

^[12] Judicial Watch, Inc. v. United States Secret Serv., 726 F.3d 208, 225-226 (D.C. Cir. 2013).

^[13] See Abbott Labs v. Gardner, 387 U.S. 136, 148, 148-49 (1967); Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (“Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.”). Citizens for Responsibility & Ethics v. Am. Action Network, 410 F. Supp. 3d 1, 20 (D.D.C. 2019) (“Administrative exhaustion requirements ensure that an agency is able to take a first pass at the facts alleged and to make determinations using its relative expertise. Exhaustion also promotes conciliatory efforts.”).

^[14] Aera Energy LLC v. Salazar, 642 F.3d 212, 222 (D.C. Cir. 2011) (“an agency must determine, and give effect to, the decision that would have been made had politics not intruded”). 

^[15] For instance, legislation passed in 1879 permitted Congress to delegate its adjudication of private claims against the United States (traditionally handled by the Committee on Claims) to a federal trial judge. 30 Stat. 278. 

^[16] Kendall v. United States, 37 U.S. 524, 610 (1838) (“There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character”). 

^[17] See Myers v. United States, 272 U.S. 52 (1926) (Brandeis, J. dissenting). 

^[18] Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 214 (1946).

^[19] Id. at 201. 

^[20] Trump v. Mazars United States, 940 F.3d 710, 729 (D.C. Cir. 2019). 

^[21] McGrain v. Daugherty, 273 U.S. 135, 174 (1927).

^[22] 521 U.S. 811, 833 (1997).