In just 10 days last month, House General Counsel Douglas Letter crisscrossed the country in what he dubbed a “traveling road show” to defend congressional power in federal courtrooms using his affable style.
On a Tuesday in Washington, the veteran litigator in a plain navy suit and red tie defended a House Oversight and Government Reform Committee subpoena for eight years of President Donald Trump’s financial records from an accounting firm.
Three days later in California, Letter made his first argument attacking the Trump administration’s plan to shift funding to pay for barrier construction on the U.S.-Mexico border. “So, let’s hope it goes well,” he quipped to the judge.
The following Wednesday in New York, Letter defended more congressional subpoenas for Trump’s financial records from Deutsche Bank and Capitol One, arguing the House has the power to investigate crimes but is not “in collusion with the Trump-led Department of Justice.”
And two days later in Washington, Letter started the second round of arguments on the border wall with a joke about how he and the Justice Department lawyer would switch arguments this time just for fun — a sign of how comfortable he feels in front of a federal judge.
As Trump and Speaker Nancy Pelosi grab headlines through soundbites and tweets in a historic constitutional struggle that could reshape the power and authority of the legislative branch, Letter has played an increasingly key and busy role behind the scenes to help shape the House Democrats’ litigation strategy and then press it in the nation’s courtrooms.
The House general counsel’s office is being tested like never before. In addition to the day-to-day work the office does for members of both parties, the Democrat-led House has moved to defend the 2010 health care law from a challenge, as well as a law that criminalizes the practice of female genital mutilation, after the Justice Department declined to defend the statutes. Letter argued before the Supreme Court in April against the Trump administration plan to add a citizenship question to the 2020 census.
And Trump’s “oppose-all-the-subpoenas” stance since the conclusion of the special counsel investigation in April has the House poised to pursue numerous lawsuits to enforce subpoenas for Robert S. Mueller III’s report, supporting documents, Trump’s tax returns and more. There have been only a handful of such lawsuits in the past few administrations.
Kerry Kircher, the House general counsel from 2011 to 2016, said the amount of work “dwarfs” what the office faced during his tenure.
“We’re way in uncharted territories with this kind of stuff, where the executive branch just isn’t playing by the rules anymore and has no intention of playing by the rules,” Kircher said. “I don’t know that the House under those circumstances really has any chance but to fight back with everything that it has.”
A year ago, Letter retired from a leading role at the Justice Department’s civil appellate division after decades of defending executive branch policies through both Republican and Democratic administrations, giving him an apolitical reputation and deep experience on the relationship between the legislative and executive branches.
Chief Justice of the United States John G. Roberts Jr. was among the guests at his going-away party, NPR noted at the time, and former Attorney General Eric H. Holder Jr. tweeted that Letter “personifies what is best about the Justice Department.”
“There’s few people who have both his knowledge base and experience as a litigator and dealing with executive power,” said Bob Loeb, an appellate partner at Orrick Herrington & Sutcliffe who worked with Letter in the Justice Department.
Pelosi hired him as general counsel in December, as Democrats prepared to take control of the House and gear up for oversight and the possibility of impeachment proceedings. His office declined an interview request with Letter.
In the role, Letter can advise lawmakers on all their options, what they can do to bolster their chances of success, and their probability of getting what they want.
There are short-term concerns about oversight of the Trump administration, but also “serious consideration and serious thought about the long-term interests of the House as an institution for future members who will serve in it,” Kircher said.
Border wall setback
So far, the fight hasn’t been all victories. A federal judge in Washington rejected the House’s lawsuit against the Trump administration over funds to construct a wall on the U.S.-Mexico border, saying the courts were not the place to settle this dispute over congressional appropriations power. The House hasn’t said whether it plans to appeal.
Jonathan Turley, a professor at George Washington Law School who represented House Republicans in an Obama-era lawsuit about health care subsidy payments to defend congressional appropriations power, has warned House Democrats in testimony to pick court battles carefully or risk bad precedents.
“They went back to the court on an exceptionally weak case, and they lost in spectacular fashion,” Turley said of the border wall lawsuit. “The House Democrats have undermined not only their own position in court but future Congresses.”
Maryland Rep. Jamie Raskin, a former law professor and member of the House Judiciary Committee, is among the Democrats who reject that criticism. He said the judge’s decision didn’t surprise him, and it shows the House must use other tools to stop the Trump administration’s border wall plan.
House Majority Leader Steny H. Hoyer told CQ Roll Call he didn’t agree with the decision by U.S. District Judge Trevor McFadden, and pointed out he is a Trump-appointed judge put on the bench just two years ago.
In a sign of the backroom strategies being formed, the House is maneuvering on how to enforce subpoenas. Democrats last week announced that the full chamber would vote Tuesday to hold Attorney General William Barr in contempt of Congress for not complying with a subpoena for the full special counsel report, as part of the process to file a civil lawsuit.
The House also planned a contempt vote for former White House counsel Don McGahn for not complying with a subpoena for some documents related to that House Judiciary Committee probe into the president’s potential acts to obstruct the Russia investigation.
But a different path emerged Thursday, when the House Rules Committee released a resolution that would authorize the Judiciary panel to pursue the lawsuits but does not mention contempt for Barr or McGahn.
The resolution, slated for a vote Tuesday, says Letter’s office would represent the committee in those lawsuits, and also prepares for the financial and logistical effort the fight could represent. Letter could hire outside counsel to assist in those lawsuits under the resolution.
In the courtroom, Letter is unassuming, conversational and polite. He doesn’t speed through talking points about arguments, and has acknowledged that he’s thinking on his feet after the judge asks a tough question. Like many actions of the Trump administration, there are really no precedents, and judges are trying to make the right call on difficult constitutional questions.
“He views the lawyer as someone there to help the court get to the right result,” Loeb said. “He’s a strong advocate, and he’s one who balances that with his role as a lawyer as a counsel to the court as well.”
During the Supreme Court arguments about the census citizenship question, in which the justices gave the House a rare chance to express its concerns directly as a “friend of the court,” Letter started by passing along Pelosi’s thanks. Roberts replied: “Tell her she’s welcome.”
Letter’s “just a real nice guy” and that congenial personality bolsters his effectiveness, Kircher said.
“He uses that to disarm people,” Kircher said. “I think it’s very hard if you’re on the other side or if you’re a judge, it’s hard to get mad at Doug about anything.”