House GOP faces growing appetite for subpoena litigation

House Republicans will soon inherit a legacy of subpoena defiance and delay that many of them cheered on while Democrats pursued sprawling investigations into the Trump administration.

Driving the news: The Supreme Court on Tuesday delivered the final blow to former President Trump’s efforts to block a House committee from obtaining key tax and financial records. Legal stonewalling that began in early 2019 will finally come to an end — but with just 41 days left of the House Democratic majority.

• Trump and his allies’ combative relationship with congressional oversight only hardened through two impeachments and the formation of the House Jan. 6 committee, which has faced resistance even with Trump no longer in office.
• An increased appetite to litigate subpoenas — if shared by the Biden administration and GOP targets in the private sector — will further test the legislative branch’s standing as a co-equal branch of government.

The big picture: House Republicans are leaning hard into plans for oversight and investigations starting, even more so than their legislative agenda.

• At a press conference at the southern border Tuesday, House GOP Leader Kevin McCarthy (R-Calif.) called on Homeland Security Secretary Alejandro Mayorkas to resign or potentially face an impeachment inquiry.
• Other GOP targets for investigations and subpoenas include Hunter Biden, Big Tech companies and financial giants pushing environmental, social and governance (ESG) investing.

What we’re watching: Law firms are broadly advising prospective clients on what to expect and how to prepare. Several lawyers tell Axios they anticipate both government and private sector clients will push back on requests from Congress more than in years past.

• “Over the past two years, we’ve seen more federal litigation around congressional subpoenas than I’ve seen at any point in my career, ” Alyssa Cunha, co-chair of WilmerHale’s congressional investigations practice, told Axios.
• “There has been an increasing appetite to litigate these matters over the last number of years, and on the right issues, I don’t see that trend abating,” said Rafi Prober, co-head of Akin Gump’s congressional investigations practice.

The focus on popular issues like ESG is “going to position corporations involved in a congressional investigation between Congress and their shareholders,” Jim Flood, chair of the government relations group at Crowell & Moring, told Axios.

• That’s likely to “increase the probability that they will want to litigate congressional subpoenas and push back on congressional committees,” Flood predicted.
• “At the end of the day, a committee can’t launch an investigation untethered to a legislative purpose,” said Karen Christian, another co-head of Akin Gump’s congressional investigations practice. “[W]hen the committee continues to push for information that doesn’t have that link, there may be more of a stomach to push back.”

Flashback: Beginning in 2018, a stream of sitting Trump administration officials slow-walked Democrats in Congress who tried to perform oversight — taking subpoena defiance or noncompliance to new levels.

• Trump himself missed deadlines to produce documents and testify before the Jan. 6 committee and filed a lawsuit seeking to block the subpoena. Several other Republican lawmakers subpoenaed by the committee did not comply.

There is also recent corporate precedent for defying congressional subpoenas.

• Gunmaker Smith & Wesson told Congress in August that it had no documents to hand over detailing exactly how many AR-15-style rifles it sells or how much money it makes selling them. Its CEO also declined to appear before the House Oversight Committee.
• “The Committee does not need ‘every scrap of potentially relevant’ information to legislate,” the gunmaker’s counsel Mark Paoletta wrote to Chairwoman Carolyn Maloney (D-N.Y.) in response to a subpoena.

Between the lines: At the crux of companies’ decision-making is whether attorney-client privilege and other rules around proprietary information apply to congressional investigations in the same way they do for civil litigation.

• Some lawyers took new guidance from a line in Chief John Roberts’ opinion in the Supreme Court’s decision in Trump v. Mazars that found recipients of congressional subpoenas “have long been understood to retain common law and constitutional privileges.”

But, but, but: There are recent cases in which the House and the Senate have demonstrated a willingness to hold both former administration officials and CEOs accountable, including by holding them in contempt of Congress.

• Companies that care about their stock price, public image and relationships on Capitol Hill still have compelling reasons to take the route of voluntary cooperation.