WASHINGTON – The White House and Congressional Democrats are divided over a politically charged process that raises new constitutional issues: the House’s long-standing attempt to compel President Donald J. Trump’s former White House adviser, Donald F. McGahn II, to testify about Mr. Trump’s efforts to obstruct Russia’s investigation.
When Democrats controlled only the House, it was simpler for their leaders to come together to summon McGahn. But officials who now run the executive branch, especially President Biden’s lawyers at the White House, are hesitant to set a precedent that Republicans can one day use to force them to testify about their own internal affairs.
A glimpse of the institutional disconnect was made public on Wednesday night when the Justice Department – which under Trump’s command represented McGahn in the fight against the lawsuit – asked an appeals court to delay the arguments of the case it was in. scheduled for Tuesday, citing the recent change in administrations.
“The new administration wants to explore whether an accommodation may be available in relation to the committee’s request,” the document said. “Discussions between the relevant parties have started, and the new management believes that the parties would benefit from more time to continue these discussions.
But Douglas N. Letter, a lawyer for House Democrats – and, effectively, House Speaker Nancy Pelosi – opposed the motion, urging the entire District of Columbia Circuit Court of Appeals to proceed without delay.
“We appreciate the efforts of the Biden government to resolve this case and actively participate in those efforts,” wrote Mr. Letter. “But we do not believe that postponing the discussion will improve the prospect of an agreement or serve the interests of judicial efficiency or justice for the parties.”
At the end of Thursday, however, the appeals court accepted the Justice Department’s request, returning the scheduled day for arguments to April 27 and ordering the delivery of a “status report informing the court of the progress of the discussion. of the parties “until March 25. .
House Democrats were frustrated that the Trump administration’s uncompromising approach and litigation strategy managed to run out, preventing any testimony from McGahn before the 2020 election. In his motion, Mr. Letter raised doubts that any a deal involving Mr. Trump would be possible, warning that the delay could prove useless, but it could further frustrate Congress’ constitutional oversight powers.
The case focuses on Mr. McGahn’s role as an important witness in the report of special attorney Robert S. Mueller III on Mr. Trump’s efforts to obstruct the investigation. After the Justice Department made most of the report public, the House Judiciary Committee summoned Mr. McGahn to testify at a supervisory hearing. When he refused to attend, following Mr. Trump’s instructions, the committee sued him.
Trump’s Justice Department argued that McGahn was “absolutely immune” to any forced Congressional appearance to testify about his job obligations. But in August, the entire District of Columbia Circuit rejected this theory.
Justice Department attorneys under the Trump administration continued to fight the subpoena on other legal grounds, however, arguing that Congress had no “cause for action” to authorize it to sue the Executive. (The executive branch took this position under the administrations of both parties, and the Justice Department said it was “prepared to proceed” with the argument as scheduled if the court denied the request for a postponement.)
The dispute is further complicated by the fact that there are so many participants – House Democrats, Mr. McGahn, the Biden government and potentially Mr. Trump. The former president did not participate in the action, but he may try to intervene and claim executive privilege – another issue that has not yet been heard in the matter – if Biden’s executive branch drops the case.
Patrick F. Philbin, a former White House deputy adviser who is one of the people Trump has appointed to deal with residual issues related to presidential records, declined to comment.
William A. Burck, McGahn’s lawyer, said earlier that his client intended to follow the president’s instructions pending a final court order. A person familiar with the deliberations said that Burck did not take a position on what McGahn would do if Biden instructed him to speak to Congress, but Trump still told him that he did not.
Stuart F. Delery, a White House deputy lawyer, said in an interview that the negotiations are still preliminary, but that the Biden government would like more time to try to resolve the dispute while preserving “institutional interests linked to the presidency.”
There are few legal precedents. A rare and limited guide is a case from 1977, Nixon v. General Services Administration. In it, the Supreme Court ruled that Richard M. Nixon could enforce executive privilege claims on official records of his White House, although he was no longer the president – but he also weighed that claim against the contrary view of the acting president at the time, Jimmy Carter.
This dispute, however, focused on control of Nixon-era White House documents, not on a subpoena for the testimony of a former lawyer. Another question is how the attorney-client privilege works for a former White House attorney when the presidency changes hands – and what would happen if Trump filed a bar ethics complaint after McGahn’s license if he cooperated with the House? in Biden’s request, but despite Trump’s objections.
Many of these questions have no definitive answers because, until recently, it was extremely rare for such disputes to be fought without commitment, leading to court decisions. But McGahn’s subpoena is one of an unprecedented number of lawsuits pitting the two branches against each other that arose after Democrats took over the House after the 2018 midterm election and Trump promised to block ” all “subpoenas.
The McGahn subpoena lawsuit echoes a similar dispute that President Barack Obama inherited when he took over from George W. Bush in 2009. House Democrats investigating Bush’s dismissal of US lawyers issued a subpoena for the testimony of Harriet Miers, Sr. Bush’s attorney at the White House at the time, leading to a lawsuit.
Explaining that Obama did not want to weaken the presidency as an institution, Obama’s then attorney at the White House, Gregory B. Craig, reached an agreement with a Bush representative, Emmet Flood and the Judiciary Committee under which Democrats were able to confidentially interview Miers on the subject, with limits.
The deal discussed the case, so the District of Columbia Circuit never issued a binding decision, leaving the legal issue unresolved. The result left the White House with more room for maneuver in future disputes – including letting Trump’s White House once again raise the idea that McGahn was absolutely immune after the House subpoenaed him.
But there are some important differences between 2009 and 2021. Helping to ease the way for cooperation, Bush – unlike Trump – oversaw a smooth transition for his successor, and Craig and Flood were former legal partners in friendly terms. It is not at all clear that Mr. Trump will be so open to the idea of compromise.
Mr. Letter invoked Mr. Trump’s story of stonewalling to warn that it did not make sense to delay the full consideration of the District of Columbia Circuit of the case, as discussions about deals could fail.
Such a delay “could prevent the commission from guaranteeing McGahn’s testimony during much of the 117th Congress, just as it was prevented from obtaining that testimony for almost the entire duration of the 116th Congress,” he wrote.