A subpoena that Congress serves on the president is not like a subpoena that one litigant serves on another.
When one litigant serves a subpoena on another, we (unfortunately, perhaps) expect battles over the propriety of service, and the scope of production, and whether documents are in one’s control, and so on.
That’s just life. Lawsuits are an adversarial process, and the opposing parties are expected to resist (within the bounds of the law) to protect their respective interests. So they fight.
But what about subpoenas served by Congress on the executive branch?
When I first turned this question over in my mind, I thought that the executive branch should naturally try to assist Congress. These are not subpoenas served in an adversarial process. Congress and the executive are co-equal branches of government. Congress has a constitutionally mandated duty to oversee the president. Surely, if Congress subpoenas the executive branch, the executive branch should strive to comply.
But then I thought harder.
Litigants are mere litigants. As one wise litigator told me decades ago, “They’re my opponents, not my enemies.” (One of the parties, nearly forced into bankruptcy by the litigation, responded, “They may be your opponents. They’re my enemies.” But that’s another story.)
Anyway, in a sense, politicians are worse than mere litigants.
The opposing political parties, unlike most litigants, seemingly will do anything in their power to hurt each other, including things that would be unethical in litigation (such as knowingly misrepresent facts, and so on).
Given that crazed partisans in Congress are serving subpoenas on crazed partisans in the executive branch, is the executive branch really duty-bound to assist in good faith?
(Be fair now. You might first think “impeachment.” But then think “Benghazi.” What’s sauce for the goose is sauce for the gander.)
Logically, you might think the branches of government should cooperate with each other, but I’m not sure.
Maybe the executive can legitimately resist at every turn, playing just as hardball as a private litigant.
That puts the courts, of course, in a terrible situation.
When litigants disagree, the judiciary calls balls and strikes. Everyone complains, but the parties accept the decisions and go on with their lives.
When partisans disagree, the judiciary could decline to call balls and strikes under the “political question” doctrine. But then no one would decide these disputes, which is an impossible situation.
Or the judiciary could involve itself in the fray, but judges would then be decried as partisan, no matter what the decision.
I’m not sure that the executive and legislative branches of government are duty-bound to cooperate with each other, but I know that the judiciary is the institution that suffers when they don’t.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at email@example.com.
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