Op-Ed: Mike Fragoso and Lee Holmes: Firms have fewer options to fight Congressional investigations than they may think
The recent drama surrounding Dr. Anthony Fauci pleading the Fifth in front of a Senate committee has put Congressional investigations back in the spotlight, but a lesser-noticed opinion from the D.C. Circuit will have far greater long-term implications for those investigations. A unanimous panel of that court, in de la Torre v. Cassidy, handed the U.S. Senate a resounding win in defense of its Constitutional immunity under the Speech or Debate Clause. It rejected former health executive Dr. Ralph de la Torre’s lawsuit against a different Senate committee over its attempt to hold him in contempt for refusing to comply with its subpoena. In the ever-developing world of Congressional investigations, it presents new clarity about the power of Congress against private parties.
The case stemmed from a subpoena issued against Dr. de la Torre by the Senate’s Health, Education, Labor, and Pensions—or HELP—Committee. Then-chairman Bernie Sanders was investigating the bankruptcy of Dr. de la Torre’s hospital network and subpoenaed Dr. de la Torre in that process. Dr. de la Torre refused to testify invoking his rights under the Fifth Amendment and claiming that the Committee was essentially engaged in an unsanctioned criminal investigation.
When the Senate unanimously referred Dr. de la Torre for civil and criminal contempt, he turned around and sued all the members of the HELP committee who voted for the contempt resolutions. He argued that the investigation lacked a legitimate legislative purpose, in part because Dr. de la Torre’s invocation of his rights meant that the Committee could get nothing useful out of him beyond his presence.
The court was not having it. The Senators enjoy extremely broad immunity to suit in their official actions under the Constitution’s Speech or Debate Clause, including in the kind of declaratory relief sought here. Just because they might be up to politics doesn’t change that, or in the words of the court, “The subjective motives of Members of Congress do not affect the objective legitimacy of a congressional inquiry.”
Having found the Senators enjoyed broad immunity, the court refused Dr. de la Torre any form of discovery to make his case. Because discovery is so costly and time-consuming, the court’s denial of discovery is perhaps the most significant takeaway because it so greatly reduces the cost of this kind of fight for Congress, whose litigation resources are generally somewhat limited.
Dr. de la Torre’s argument was understandable given that it appears the courts are more willing to police the bounds of a Congressional investigation’s legislative intent far more than they used to be. This has long been a hobby horse of D.C. Circuit judge Neomi Rao in her academic research and the issue featured prominently in Trump v. Mazars, the litigation over President Trump’s tax returns.
The court noted that Dr. de la Torre has available alternatives. He could have asserted his rights in his hearing itself (as Dr. Anthony Fauci purported to do last week in front of a different Senate committee). He also could have moved to quash the subpoena if it did lack a legitimate legislative purpose, although Dr. de la Torre seemed to have conceded that it was legitimate when issued.
In short, the courts may restrict Congress and protect private parties when it goes too far, but the first move belongs to Congress. Courts won’t superintend Congress as it goes about its business. The limited offensive options in court for parties under congressional scrutiny reemphasizes the need to manage such scrutiny through negotiation with the investigating committee, coordination with Congressional allies, and winning the narrative in the press.
Democrats are chomping at the bit to investigate the Trump administration should they retake Congress. They may well hit a brick wall with the administration itself, so Congressional Democrats are doubtless sharpening their knives to get at the president and his associates via private parties.
The de la Torre opinion previews the challenges those private parties may face as they attempt to resist Congressional oversight. The courts’ increased willingness to inquire into the legitimate legislative purpose of congressional oversight presents an opening for private parties, but creative—and preemptive—action against Congress just won’t fly.
Michael A. Fragoso is a partner at Torridon Law PLLC. He previously served as chief counsel to Republican Leader Mitch McConnell and on the Senate Judiciary Committee. Lee Holmes is the Managing Shareholder of Maynard Nexsen’s D.C. Office. He has served as a federal prosecutor, a lawyer in the White House, and as the Staff Director of the Senate Judiciary Committee.
