Notice & Comment

Essay: The Illusory Precedent of McGrain v. Daugherty, by Daniel Epstein

On May 12, 2020, the Supreme Court heard argument in the consolidated cases of Trump v. Mazars LLP and Trump v. Deutsche Bank,[1] which concern whether standing committees of Congress have constitutional and statutory authority to enforce subpoenas against private corporations in order to obtain non-government records belonging to the President. From the perspectives of the congressional plaintiffs and the respective lower courts agreeing with their arguments, this question is easily answered. In 1927, the Supreme Court held in McGrain v. Daugherty that the “Necessary and Proper Clause” of Article I, §8 empowered Congress, through its committees, to conduct investigations and compel compliance with its subpoenas as a necessary auxiliary of Congress’s need for information in order to legislate effectively.[2] Here, the House Oversight and Reform Committee (Mazars) and the House Intelligence and House Financial Services committees (Deutsche Bank) sought to enforce subpoenas consistent with their legislative jurisdiction. Even the Office of Legal Counsel at the Department of Justice concedes that McGrain empowers duly authorized congressional committees to enforce their oversight requests so long as those requests are for a legitimate legislative purpose.[3]

Given the Supreme Court’s consideration of McGrain in both Mazars and Deutsche Bank, as well as the number of current interbranch disputes before the D.C. Circuit likely to percolate up before the Court,[4] this essay seeks to dispel the notion that McGrain supports the doctrine of judicial enforcement of the congressional oversight power. 

  1. How McGrain is Read

Since the beginning of the 116th Congress, where, two years into the Trump Administration, the President’s unified party control was broken by the Democratic Party’s securing the U.S. House of Representatives, the House Office of General Counsel, representing its committees before the federal courts, has relied on McGrain as support for the proposition that “Article I of the Constitution grants each House of Congress the power to use compulsory process to obtain information from third parties, including Executive Branch officials, that may aid it in carrying out its legislative and oversight responsibilities.”[5] The Supreme Court’s McGrain v. Daugherty decision located the investigative power of Congress in the “Necessary and Proper” clause.[6] In elaborating on this finding, the Supreme Court held that the Constitution, Article I, §8, clause 1, “invests” the Congress with “all legislative powers” granted to the United States and with the power, under clause 18, “to make all laws which shall be necessary and proper” for executing those powers. 

McGrain is relied upon for the propositions that a “legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change”[7]; “the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function”[8]; and it is an implied power of Congress “to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively.”[9] Even the Department of Justice Office of Legal Counsel in the current administration, which advises Civil Division lawyers on their briefs in opposition to the current Office of General Counsel in the House of Representatives, has relied on McGrain as providing the legal foundation for congressional oversight authority.[10]

McGrain provides the setting for the underlying disputes in Mazars and Deutsche Bank. The House committees argue that certain information is needed as part of their legislative function, as articulated in jurisdictional rules authorizing the committees’ oversight and legislative authority. The Trump Administration, and the President’s personal lawyers, argue that the legislative purpose must be clearly stated, not simply a reference to the broad jurisdictional authority adopted by the Rules Committee at the beginning of each Congress, and that, further, the legislative purpose must be articulated in advance of an investigation, via a floor resolution subject to participation of the whole House. These latter points inform the President’s claims that a legislative purpose is distinct from a political or law-enforcement purpose and that the President is entitled to due process when subject to congressional investigations. It is this McGrain-informed clash that the Supreme Court is tasked with resolving. 

  1. Why McGrain is Read Incorrectly

While McGrain v. Daugherty nears a century in age, scholars and practitioners have seemingly overlooked the McGrain Court’s own articulation of the “principal questions involved” in the case: first, “whether the Senate – or the House of Representatives, both being on the same plane in this regard – has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution” and, second, “whether it sufficiently appears that the process was being employed in this instance to obtain testimony for that purpose.”[11] The McGrain Court even repeats its narrow application to disputes between Congress and the private sphere: “[t]he first of the principal questions – the one which the witness particularly presses on our attention – is, as before shown, whether the Senate – or the House of Representatives, both being on the same plane in this regard – has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.”[12]

In the lead up to the case, Congress held robust investigations aimed at Attorney General Harry Daugherty’s failure to prosecute government officials involved in the Teapot Dome Scandal, among other claims of neglect and misfeasance of duty.[13] The Senate Select Committee on Investigation of the Attorney General and the Senate Committee on Public Lands and Surveys conducted lengthy investigations concerning allegations of illegal leasing of oil on naval reserves, which President Warren Harding directed the Department of Justice to examine and appointed a special counsel to investigate,[14] preceding the use of any compulsory process by Congress.[15] After these proceedings, the Senate issued a resolution on January 29, 1924 requesting that subsequent President Calvin Coolidge request the resignation of Attorney General Daugherty.[16] On March 28, 1924 President Coolidge demanded and received Daugherty’s letter of resignation. As stated early in its opinion, the McGrain Court did not view its decision as concerning an interbranch information dispute but simply looked at the Congress’s power to investigate and compel compliance from “private individual[s]”. 

McGrain v. Daugherty and its oft-cited progeny[17] involved clashes between individuals and Congress, versus interbranch disputes, rendering their holdings inapplicable to those cases where Congress seeks to compel information from the Executive branch. On February 28, 2020, Judge Griffith, in his opinion in U.S. House of Representatives, Committee on the Judiciary v. McGahn, emphatically clarified that McGrain was not a separation of powers case, distinguishing McGahn, which involved an interbranch dispute, from McGrainKilbourn v. Thompson,[18] and Mazars,which did not involve subpoenas to the Executive branch.[19]

And while Judge Griffith views the federal courts as having jurisdiction over disputes like Mazars due to its involvement of individual rights versus questions committed to the federal political branches, the facts at issue in McGrain suggest a desire by Congress to avoid using compulsory process against the Executive branch. That the congressional inquiries directed toward the Harding Administration had a political remedy (Attorney General Daugherty’s removal) is suggestive of the political nature of congressional oversight over administration. By the time the facts giving rise to the McGrain case occurred, the nexus of administrative oversight had passed. Instead of issuing a subpoena to Attorney General Harry Daugherty, the select committee issued and enforced a subpoena against the Attorney General’s brother, Mallory “Mally” Daugherty, the president of the bank where Harry Daugherty held accounts. This factual premise is a crucial one in distinguishing the facts underlying McGrain from the facts characterizing the interbranch information disputes describing congressional oversight. Second, the Senate was represented ­by the Department of Justice in the dispute; which would be an odd posture if there were Executive Branch interests at stake, even if indirectly via the parties.[20] Third, the briefing by th­­­­­­­e Department of Justice in the case was framed in terms of judicial review of the congressional “power to conduct an investigation in aid of its legislative functions [and] to compel attendance before it of witnesses and the production of books and papers” and non-structural constitutional “privileges as those against unreasonable searches and seizures, self-incrimination and the like.”[21] In addition to the Court’s own presentation of the crucial question being one of Congress’s power to compel compliance from private individuals, the McGrain decision did not analyze any separation of powers questions that undoubtedly attend interbranch information disputes. 

To the extent McGrain is construed as justifying compelled congressional oversight of the Executive branch under the Necessary and Proper clause, the Legislative Reorganization Act of 1946 “overtu­­­rned” that holding by clarifying that the authority for Congress to “exercise continuous watchfulness” over the Executive branch is Article I, § 5, clause 2, the “rules of proceedings” clause.[22] Further, the congressional drafters of the Legislative Reorganization Act were careful to craft no judicial review provision in the statute.[23]

The House Office of General Counsel, in its current litigation with the Trump Administration, has argued consistently with the Legislative Reorganization Act of 1946 yet inconsistently with McGrain in contending that Article I, § 5 (“[e]ach House may determine the Rules of its Proceedings”) provides the legal justification for Congress’s power to demand compliance with its subpoenas to the Executive branch.[24] In Marshall v. Gordon,[25] the Supreme Court definitively opined that compulsory resolutions derived under the rules of proceedings clause are not enforceable against the Executive branch. The rules of proceedings clause presents a basis for congressional enforcement of contempt and in the two occasions prior to 1974 where Congress held executive branch officials in contempt (customs official George Seward in 1869 and U.S. Attorney for the Southern District of New York Snowden Marshall in 1916) both were grounded as necessary for the purposes of considering impeachment. That Marshall v. Gordon was decided subsequent to In re Chapman (relied on by McGrain and concerning the use of compulsory process against private citizens for purposes of investigating members of Congress) and prior to McGrain reflects the Court’s recognition of the distinction between contempts of Executive branch officials versus contempts of private citizens and that while the latter were justiciable, the former were not.

  1. Mazars and Deutsche Bank are Interbranch Information Disputes

The House Financial Services Committee and House Permanent Select Committee on Intelligence investigation of Deutsche Bank and the House Oversight and Reform Committee’s investigation of Mazars are aimed at, respectively “investigating the questionable financing provided to President Trump and The Trump Organization by banks like Deutsche Bank to finance its real estate properties”[26] and the President’s “financial interests in businesses across the United States and around the world that pose both perceived and actual conflicts of interest.”[27] While President Trump, in his personal capacity, has argued that these inquiries are aimed at determining whether the President engaged in criminal conduct, which is an impermissible legislative purpose, even crediting the stated congressional interests in financial reform or ensuring compliance with the Ethics in Government Act, the fact that under McGrain, the inquiry, as tailored specifically to President Trump, is an auxiliary to legislation means that any resulting legislation would be targeted to President Trump. Any conceivable legislation of the sort would be invalid as an unconstitutional bill of attainder under Article I, § 9. As the Supreme Court has recognized, the Bill of Attainder Clause prohibits any “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.”[28] It is difficult to conceive of legislative text resulting from these inquiries that does not somehow conclude that President Trump violated a statute.  And certainly legislation cannot serve to impugn the President after the Senate failed to remove him. 

If, however, the stated interest of the committees is to determine if the President accepted emoluments in violation of the Constitution,[29] then such an interest directly concerns the President’s official acts and should fall out of the McGrain framework and within the D.C. Circuit’s framework of non-justiciability as established in McGahn. Congressional oversight engenders political disputes with political remedies (impeachment, resignation, reelection) and need not be cabined by a policy requirement (legislative purpose) as opposed to a political one. Because interbranch information disputes are not justiciable, Congress may base its oversight on nakedly political purposes. 

  1. An Implication of Misreading McGrain

Only a motivated reading of McGrain could lead to a conclusion that it applies to congressional investigations of the Executive Branch. The McGrain Court viewed its holding as simply applying the Supreme Court’s prior decision in In re Chapman,[30] thus upholding the precedent that the Necessary and Proper Clause justified Congress’s reliance on a statute authorizing the use of compulsory process to summons witnesses for testimony. Had the McGrain Court sought to apply such a constitutional justification to Executive branch witnesses, it would have had to distinguish In re Chapman, which it chose not to do.[31]

But if McGrain v. Daugherty presented a parallel issue to In re Chapman, the Supreme Court could have resolvedMcGrain in a procedural fashion upon granting certiorari. Only in the Supreme Court’s 1946 decision in Oklahoma Press Publishing v. Walling, issued in the twilight before President Truman’s signature of the Administrative Procedure Act of 1946, can McGrain be understood as a presaged justification for presidentially insulated quasi-legislative, quasi-judicial agency investigations. When McGrain was decided, it was a year subsequent to the question of the President’s power to remove a postmaster official in Myers v. United States[32] and subsequent to a number of administrative law challenges filed in the Court of Claims, which heard claims arising under the Constitution or statute that entailed money damages (the constitutional challenge to removal in Humphrey’s Executor was likewise filed in the Court of Claims). 

Oklahoma Press Publishing v. Walling addressed the question of a private target’s challenge to an administrative agency subpoena for records and information. For the first time, the Court had to evaluate the question of validity when Congress delegates its investigative powers to a non-law-enforcement agency for purposes of investigating conduct covered by statute. In its reference to McGrain,[33] the Court analogized an agency investigation as effectively a delegation of Congress’s own inquiries for a legislative purpose (“[i]t is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command”).[34] In effect, if Congress could validly delegate its investigative powers to committees certainly it could delegate such powers to administrative agencies charged with implementing regulatory norms established by Congress. 

If McGrain is read to govern legislative inquiries of private citizens and Oklahoma Press Publishing applies that principle to regulatory inquiries by agencies created by Congress, then the Administrative Procedure Act’s definition of “rule” as encompassing part of an agency statement designed to implement law,[35] and its definition of “rulemaking” as governing the process for formulating such a statement, can be understood in a new light. Just as congressional investigations are bound by a rulemaking purpose, so too must agency investigations be considered a process for formulating a rule, i.e. “an agency statement of general or particular applicability and future effect designed to implement [] or prescribe law or policy[.]”[36]By misreading McGrain, American public law jurisprudence has not only mistakenly approved the adjudication of interbranch information disputes but simultaneously failed to treat regulatory (by agencies) investigations as antecedent to rulemaking (the clear holding of McGrain). And such inquiries, bound by a regulatory purpose, are ones the Administrative Procedure Act requires to be disclosed publicly in advance. But the concept of administrative subpoenas as legislative inquiries is not the received view of the law.[37] By extending McGrain to provide judicial review of congressional oversight of administration, our jurisprudence has ignored the extent to which Congress’s own delegation of its investigative functions are not subject to due process requirements. In narrowing McGrain to its proper holding, the courts may be better positioned to exercise review over the regulatory power of investigation which, while evolving from congressional oversight, has certainly evaded its contemporary attention. 

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] Case No.’s 19-5142 & 19-1540. A related case is Trump v. Vance, Case No. 19-635, yet that concerns the President’s immunity from state criminal process. 

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

[3] Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1-2 (2017).

[4] Comm. on the Judiciary of the United States House of Representatives v. McGahn, 951 F.3d 510 (D.C. Cir. 2020) (vacated March 13, 2020); United States House of Representatives v. Mnuchin, 2020 U.S. App. LEXIS 8140, *7-8 (D.C. Cir. 2020) (under D.C. Circuit Handbook of Practice and Internal Procedures 60 (2019) en banc was granted prior to the panel decision); Kupperman, 2019 WL 7293589 (D.D.C. December 30, 2019); U.S. House of Representatives v. United States Department of Justice (In re Committee on the Judiciary), 951 F.3d 589, 603 (D.C. Cir. 2020). 

[5] Memorandum of Law in Support of Pl.’s Mtn. for Summ. J. at 35 (Aug. 20, 2019), Comm. on Ways and Means, U.S. House of Representatives v. U.S. Dep’t of Treasury, et al., Case No. 19-01974 (D.D.C. 2019) (citing McGrain, 273 U.S. at 175) (hereinafter “House Memo ISO MSJ”.

[6] McGrain supra note 2 at 160. 

[7] Id. at 175. 

[8] Id. 

[9] Id. at 161. 

[10] May 1, 2017 OLC Opinion, supra note 3. 

[11] McGrain, supra note 2 at 154. 

[12] Id. at 160. 

[13] Id. at 151. 

[14] Cong. Rec. 68th Cong., 1st Sess., at 1520-1522,

, 1728; c. 16, 43 Stat. 5; Cong. Rec. 68th Cong., 1st Sess., pp. 1591, 1974; c. 39, 43 Stat. 15; c. 42, 43 Stat. 16.

[15] Morton Rosenberg, Investigative Oversight: An Introduction to the Law, Practice, and Procedure of Congressional Inquiry, CRS Report to Congress (1995), 95–464. 

[16] Cong. Rec. 68th Cong., 1st Sess., at 1591,

[17] United States v. Rumely, 345 U.S. 41, 46 (1953); Watkins v. United States, 354 U.S. 178, 187 (1957); Tenney v. Brandhove, 341 U.S. 367, 377-378 (U.S. 1951); Barenblatt v. United States, 360 U.S. 109, 111 (1959); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503-07 (1975).

[18] 103 U.S. 168 (1880).

[19] Comm. on the Judiciary of the United States House of Representatives v. McGahn, 951 F.3d 510 (D.C. Cir. 2020) (vacated March 13, 2020).

[20] McGrain, supra note 2 at 150. 

[21] See id.

[22] Legislative Reorganization Act of 1946, § 136.

[23] Even assuming McGrain was apropos to interbranch information disputes, our jurisprudence has evolved to conclude that any legislative process that can legally bind the Executive must go through bicameralism and presentment – which is never the case for a cameral jurisdictional statement, committee resolution, or chairman’s letter. INS v. Chadha, 462 U.S. 919, 952 (1983).

[24] House Memo ISO MSJ, supra note 5 at 23 n. 63. 

[25] 243 U.S. 521 (1917).

[26] 165 Cong. Rec. H2698 (daily ed. Mar. 13, 2019). 

[27] H. Rep. No. 116-40 at 156 (2019). 

[28] Selective Serv. Sys. v. Minn. Pub. Interest Research Grp. 468 U.S. 841, 846-47 (1984). 

[29] Respondents’ Opp. to Emergency App. for a Stay of Mandate at 6 (2019), Trump et al. v. Mazars et al.supra note 1.

[30] 166 U.S. 661, 671-672 (1897).

[31] In re Chapman, id. (“that Congress possessed the constitutional power to enact a statute to enforce the attendance of witnesses and to compel them to make disclosure of evidence to enable the respective bodies to discharge their legitimate functions . . . was to effect [] the act of 1857[.]”).

[32] 272 U.S. 52 (1926). 

[33] Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 216 n. 55 (citing McGrainsupra note 2 at 156-158 (“The principle underlying the legislative practice has also been recognized and applied in judicial proceedings. This is illustrated by the settled rulings that courts in dealing with contempts committed in their presence may order commitments without other proof than their own knowledge of the occurrence, and that they may issue attachments, based on their own knowledge of the default, where intended witnesses or jurors fail to appear in obedience to process shown by the officer’s return to have been duly served. A further illustration is found in the rulings that grand jurors, acting under the sanction of their oaths as such, may find and return indictments based solely on their own knowledge of the particular offenses, and that warrants may be issued on such indictments without further oath or affirmation; and still another is found in the practice which recognizes that where grand jurors, under their oath as such, report to the court that a witness brought before them has refused to testify, the court may act on that report, although otherwise unsworn, and order the witness brought before it by attachment. We think the legislative practice, fortified as it is by the judicial practice, shows that the report of the committee — which was based on the committee’s own knowledge and made under the sanction of the oath of office of its members — was sufficiently supported by oath to satisfy the constitutional requirement.”).

[34] Id. at 209. 

[35] 5 U.S.C. § 551(4). 

[36] Id

[37] But cf. Executive Order No. 13892. 

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