Two years ago, in the middle of President Donald Trump’s broader oppose-all-the-subpoenas stance in ongoing investigations, House Democrats focused on one lawsuit that could pave the way for Congress to more easily and quickly enforce congressional subpoenas in court.
But that House Judiciary legal push is now poised to fizzle out in a way that does little to bolster congressional oversight, and might have actually weakened it, legal experts say.
The House Judiciary Committee told a court last week that it came to an agreement to obtain information from former White House counsel Don McGahn, an end to a separation-of-powers clash that created a court ruling last year that Speaker Nancy Pelosi described as a threat “to strike a grave blow” to congressional oversight.
McGahn will be interviewed about events depicted in the report from former special counsel Robert S. Mueller III released in April 2019, per the agreement. But the interview will be closed, limited to publicly available portions of the report, and with the Justice Department there to direct him not to answer questions.
House Judiciary Chairman Jerrold Nadler, D-N.Y., said the McGahn agreement brings the era of Trump’s “unprecedented obstruction” to an end. Trump had said McGahn and other aides had “absolute immunity” from subpoenas that required them to testify before committees.
“The law requires that when there is a dispute in court between the legislative and executive branches, the two must work in good faith to find a compromise — and I am pleased that we have reached an arrangement that satisfies our subpoena, protects the Committee’s constitutional duty to conduct oversight in the future, and safeguards sensitive executive branch prerogatives,” Nadler said in a news release.
Ross Garber, who teaches political investigations and impeachment at Tulane Law School, said the House’s Trump-era investigation tactics have resulted in an erosion of congressional oversight and impeachment authority.
“In the McGahn saga, the House was ham-handed, reached no prompt deal on accommodation, took many months to seek enforcement of its subpoena, did little to try to expedite the case, and ultimately settled for nothing,” Garber said.
Jonathan Turley, a law professor at George Washington University who was a Republican-called witness during a December 2019 committee impeachment hearing, said he wasn’t sure why Nadler was so pleased and called it making a “sow’s ear into a silk purse.”
“The result is that his testimony may yield little new information,” Turley said of the McGahn agreement. “Indeed, the agreement is designed to stay within the confines of what is already known.”
And any information comes long after the political moment for it has passed. Since the Mueller report, there have been two impeachments of Trump, a global pandemic and a violent insurrection against the Capitol by Trump supporters. Trump is no longer president and lives in Florida.
The U.S. Court of Appeals for the District of Columbia Circuit was set to hear oral arguments on one part of the case this week, part of the drawn-out court fight that benefits the executive branch by stretching it past its political relevance.
“There is now a clear playbook for any current or former executive branch official who wants to resist a House subpoena,” Garber said.
Thomas Hungar, a former House general counsel and now an attorney at the Gibson, Dunn & Crutcher law firm, said the executive branch already had such a playbook on hand, but the McGahn case “confirms that their playbook is a good one and it’s effective.”
The Judiciary Committee did gain some ground out of the McGahn case, with a D.C. Circuit ruling that found it had the right to file such a lawsuit to enforce a subpoena.
But the most recent ruling went against the House. A three-judge panel of the D.C. Circuit concluded last year that Congress first needs to pass a law to authorize the committee to file the lawsuit — essentially stopping the case and others like it.
Pelosi, at the time, said in a news release that the panel decision “represents a direct challenge to our Constitution’s system of checks and balances and therefore to our very Democracy, particularly in light of this Administration’s blanket defiance and obstruction of Congress’s constitutional legislative oversight authority.”
The House appealed it to the full D.C. Circuit, which had wiped out that panel ruling in preparation to make a decision with all the judges. That full appeals court was set to hear oral arguments about it Wednesday.
Now, that won’t happen because of the agreement. McGahn and the committee will ask the D.C. Circuit to essentially pretend that the panel ruling against the Judiciary Committee didn’t happen.
But even if that panel decision stays vacated, “the Justice Department is absolutely going to be relying on this argument, every time this issue comes up in the future,” Hungar said.
Hungar called it “unfortunate” that the House didn’t take that next step because he thinks the D.C. Circuit would have sided with the Judiciary Committee.
“I think that would have been the right result, and it would have clearly been in the interest of the House to get an authoritative D.C. Circuit ruling on that question,” Hungar said. “Because now they’re going to have to fight it all over again the next time around, and it’s going to cause delays.”
A central figure
In what now seems like a long, long time ago, McGahn became a central figure in the the committee’s investigation into Trump because of what he told Mueller about Trump’s actions, particularly as it related to the possibility that Trump had committed the crime of obstruction of justice.
Trump directed McGahn to fire Mueller, a federal investigator conducting a grand jury inquiry into Russia’s role in the 2016 election and the president’s own conduct, for the corrupt motivation of protecting against personal embarrassment or legal liability, Mueller’s report stated.
McGahn told Mueller he did not carry out the direction, deciding he would resign rather than trigger what he regarded as a potential Saturday Night Massacre situation in which Justice Department officials would resign rather than follow the order, per the report.
Mueller declined to make conclusions about whether Trump committed a crime in his report. House Democrats wanted to hear more from McGahn. They subpoenaed him to testify for what would be a blockbuster Judiciary Committee panel.
But Trump ordered McGahn not to testify, saying the top White House attorney had “absolute immunity” from such a subpoena, and told reporters: “We’re fighting all the subpoenas.”
At the time, the McGahn fight played into the broader strategy from House Democrats on how to enforce numerous subpoenas for Trump administration officials. For example, the ongoing McGahn case was cited as one of the reasons not to subpoena former national security adviser John Bolton in the rapidly advancing case for impeachment related to Ukraine in late 2019.