WASHINGTON – The White House and congressional Democrats are divided over a politically charged lawsuit that raises new constitutional issues: the House’s long-running attempt to force President Donald J. Trump’s former White House councilor Donald F. McGahn II to testify about mr. Trump’s efforts to obstruct the Russian investigation.
When the Democrats only controlled the House, it was easier for their leaders to unite behind the summons of Mr. McGahn. But officials now running the executive branch, particularly President Biden’s White House advocates, are reluctant to set a precedent that Republicans could one day use to force them to testify on their own internal affairs.
A look at the institutional breach became known late Wednesday when the Department of Justice – which under Mr. Trump represented McGahn in the fight against the lawsuit – an appeals court has asked to adjourn arguments in the case scheduled for Tuesday, citing reference. the recent change in administrations.
“The new administration wants to investigate whether there may be accommodation available with regard to the request of the committee,” reads the application. “The talks between the parties involved have begun, and the new government believes that the parties would benefit from the time to continue these discussions.”
But Douglas N. Letter, an attorney for House Democrats – and effectively Speaker Nancy Pelosi – opposed the motion and asked the full appellate court to continue the District of Columbia Circuit without delay.
“We appreciate the efforts of the Biden government to resolve this matter, and we have actively participated in the efforts,” he said. Letter written. “But we do not believe that postponing the argument will improve the prospect of a settlement or serve the parties’ interests of judicial efficiency or fairness.”
Late on Thursday, however, the Court of Appeal granted the request of the Department of Justice by moving the scheduled day for arguments back to April 27 and ordering a “status report informing the court of the progress of the parties’ discussion” set, to be delivered by 25 March. .
House Democrats were frustrated that the Trump administration’s uncompromising approach and litigation strategy could succeed in knocking the bell, and thus any evidence by Mr. McGahn before the 2020 election. In his motion, Mr. Letter raised doubts that any compromise regarding Mr. Trump would be possible, warning that delay could be useless, but could further stifle Congress’ constitutional oversight powers.
The case focuses on the role of Mr. McGahn as a key witness in the Special Advocate Robert S. Mueller III’s report on the efforts of Mr. Trump to obstruct the investigation. After the Department of Justice released most of the report, the House Judiciary Committee McGahn summoned to testify during a supervisory hearing. When he refused to appear, the committee, on the instructions of Mr. Trump sued.
The Department of Justice under Mr. Trump argued that Mr. McGahn is “absolutely immune” to any forced appearance before Congress to testify about his duties. But in August, the entire District of Columbia Circuit rejected the theory.
Attorneys for the Department of Justice under the Trump administration have continued to fight the subpoena on other legal grounds, arguing that Congress does not have a “cause of action” that empowers it to sue the executive. The executive took this position among administrations of both parties, and the justice department said it was “prepared to proceed with the argument as scheduled if the court rejects its request for delay.”
The dispute is further complicated by the fact that there are so many participants – House Democrats, Mr. McGahn, the Biden government and possibly Mr. Trump. The former president has not yet been a party to the lawsuit, but he could try to intervene and bring executive privilege – another issue that has not yet been adjudicated in the case – if the executive under Mr. Praying falls out of the case.
Patrick F. Philbin, a former deputy member of the White House, who is one of the people who Mr. Trump indicated he would address remaining issues related to presidential records, declining to comment.
William A. Burck, an attorney for Mr. McGahn, said earlier that his client intends to postpone the president’s instructions pending a final judicial order. A person familiar with the deliberation said that Mr. Burck took no position on what Mr. McGahn would do as Mr. Biden would not instruct him to speak to Congress, but Mr. Trump still told him not to do that.
White House Deputy Attorney Stuart F. Delery said in an interview that the negotiations are still preliminary, but that Biden’s government wants more time to try to resolve the dispute, while the ‘institutional interests’ attached to the presidency ‘is retained.
There are few legal precedents. A rare and limited guideline is a case from 1977, Nixon v. General Services Administration. In it, the Supreme Court ruled that Richard M. Nixon could assert executive privileges over his official reports from his White House, even though he was no longer the president – but it also weighed the allegation against the opposite view of the then sitting president. , Jimmy Carter.
However, the dispute focused on the control of the White House documents in the Nixon era, and not a subpoena for the testimony of a former lawyer. Another question is how the privilege of a lawyer’s client for a former White House lawyer works when the presidency changes hands – and what would happen if Mr. Trump would file a complaint for ethical charges against Mr. McGahn’s legal license as he works with the House at Biden’s request but over the objections of Mr. Trump.
Many such questions have no definitive answers, as until recently it was extremely rare for such disputes to be fought without compromise, leading to judicial decisions. But the McGahn subpoena is one of an unprecedented number of lawsuits pitting the two branches against each other in court that arose after Democrats took over the House after the 2018 midterm elections and Trump promised to “all” subpoenas with stones too rocky.
The lawsuit over the McGahn subpoena reflects a similar dispute that President Barack Obama inherited when he took over from President George W. Bush in 2009. House Democrats investigating Bush’s dismissal of lawyers in the United States have issued a subpoena for testimony by Harriet Miers, Mr. Bush’s White House attorney at the time, which led to a lawsuit.
Explain that Mr. Obama did not want to weaken the presidency as an institution. The then White House attorney, Gregory B. Craig, compromised with a representative of Mr. Bush, Emmet Flood and the Legal Committee. Democrats could confidently me. Ants on the subject maintained, with limits.
The settlement raised the matter, and the District of Columbia Circuit never issued a binding decision, which left the legal question unresolved. The result left the White House with more seesaws in future disputes – including re-emerging with the Trump White House the idea that McGahn was absolutely immune after the House sued him.
But there are some important differences between 2009 and 2021. Mr. Bush has, unlike Mr. Trump, overseeing a smooth transition to his successor, and Mr. Craig and Mr. Flood was a former legal partner in the friendly field. provisions. It is far from clear that Mr. Trump will be just as open to the idea of compromising.
Mr. Later, Mr. Trump’s history of stonewalling called for and warned that it made no sense to postpone the full consideration of the District of Columbia Circuit on the matter, as settlement talks could fail.
Such a delay ‘could prevent the committee from obtaining McGahn’s evidence for much of the 117th Congress, just as it was prevented from securing the evidence for almost the entire duration of the 116th Congress’, he wrote.