Published by The Lawfare Institute
in Cooperation With
Americans can be forgiven if the testimony of Don McGahn in the context of the first impeachment of a former president is the last thing on their minds these days.
A lot of water has flowed under the bridge since the Justice Department released the Mueller report in April 2019 and the House Judiciary Committee sought McGahn’s testimony in response. The coronavirus emerged, spread into a pandemic, and is now ebbing in some parts of the world and surging in others. President Trump was impeached not once, but twice. Rioters stormed the Capitol in an attempted insurrection. A new administration arrived in Washington, D.C.
And, finally, two full years after the results of Special Counsel Robert Mueller’s investigation became public, the House Judiciary Committee has reached an agreement with the executive branch over the testimony of Trump’s former White House counsel concerning Mueller’s account of the former president’s conduct.
The committee subpoenaed McGahn shortly after release of the report itself, framing the request for information as a key component of a nascent inquiry into whether Trump’s obstruction of justice as described by Mueller merited impeachment. That point, of course, is moot. While Trump’s dual impeachments proceeded without McGahn’s testimony, both proceeded on other grounds; Trump escaped impeachment on the matters discussed in the Mueller report, though Republican control of the Senate ensured that he almost certainly would have skated by even if McGahn had testified in a timely fashion.
Yet the settlement is important, both for what it does and for what it does not do. On the one hand, it is valuable for Congress to vindicate the principle that a subpoena to a White House official has to be honored. Trump had sought simply to defy congressional demands for information, and that has ultimately failed—and failed in a fashion that has important precedential consequences. On the other hand, the litigation required two years, well beyond the delay Trump needed in order to dodge the possibility of consequences for his behavior. And the accommodation the new administration has finally made with the committee is a sharply limited one.
This would have been a big win for Congress had it come back in 2019. Coming today, though, it presents a much more muddled picture.
Given how long the litigation has drawn out, and how deeply it’s become mired in technical legal questions about testimonial immunity and jurisdictional issues before Article III courts, it’s worth taking a step back and reviewing why the committee cared about McGahn’s testimony in the first place.
For Mueller, McGahn was something of an unlikely star witness. The special counsel’s office relied heavily on his testimony to understand Trump’s efforts to obstruct the inquiry, to the point where the office began relaying essentially real-time requests for information to McGahn about Trump’s actions—while McGahn was still serving as White House counsel. What’s more, of the specific instances of potential obstruction of justice documented in the report, the anecdotes involving McGahn included some of the most damning and least legally defensible. When one of us put together a heat map visualizing Mueller’s characterization of various episodes of obstruction, two episodes in which McGahn’s testimony featured prominently stood out in bright red: Trump’s demand that McGahn fire Mueller outright and, when that failed, his demand that McGahn create a false record to cover up the facts of that first meeting.
Mueller’s prose is muddy, but the report seems to indicate that the office viewed both incidents as having fulfilled the legal criteria for a violation of the obstruction of justice statutes. The second incident—Trump’s effort to force McGahn to falsify evidence—was particularly damning from the standpoint of criminal law, because Article II provides no obvious shelter for Trump’s actions. While there’s a question as to whether the obstruction of justice statutes apply to the president, there is no reasonable argument, after all, that the president has a constitutional authority to falsify documents.
So for any congressional investigation into Trump’s wrongdoing, McGahn’s testimony would be central. But in May 2019, Trump directed his by-then former White House counsel not to appear before Congress, on the grounds that McGahn enjoyed absolute immunity from compelled congressional testimony as a former presidential adviser—that is, that separation of powers concerns prevented Congress from even calling him to testify. This argument precedes any invocation of executive privilege McGahn might make once in front of the committee. And so, the litigation began, with the Justice Department defending McGahn’s noncompliance and the committee suing to compel McGahn to show up. The ominous implication of the lengthy dispute over the immunity matter was that even if it could be resolved, a separate dispute over numerous invocations of executive privilege would immediately follow.
The procedural history of the case is tortured. After the district court ruled in favor of the committee, finding absolute immunity to be “a fiction,” the Justice Department appealed—and, in February 2020, a panel of the D.C. Circuit found that Congress lacked standing to pursue the case in court. Sitting en banc, the full court reversed the panel decision in August 2020. But only a few weeks later, the same panel ruled that the committee also lacked a cause of action under which to proceed in court. Again, the committee pursued rehearing en banc—and it was oral argument in that case that was imminent as the parties moved to resolve the matter.
Trump famously announced that he planned to “fight ... all the subpoenas” coming from Congress. The Biden administration took a less confrontational approach, but the Justice Department under President Biden didn’t just leave McGahn to the mercy of Congress. Instead, after Biden’s inauguration, the department twice convinced the appeals court to delay the en banc rehearing so it could seek accommodation with Congress—much to the apparent annoyance of the committee, which informed the court each time that it would have preferred to go ahead with oral arguments.
By the time that the committee negotiated an agreement on McGahn’s testimony, the parties were nearing the next deadline for a second round of en banc oral arguments, one the court had stressed it would not move again.
A few points are critical to understanding the agreement the parties made this past week. The first is that at no point has the appeals court weighed in on the merits of McGahn’s claim of immunity. The district court has rejected it, but both D.C. Circuit opinions dealt with antecedent questions: whether the committee has standing to sue and whether a cause of action exists under which to do so. The district court opinion, of course, is not binding precedent, so by settling this case now, the executive branch preserves its ability to argue for testimonial immunity for senior presidential advisers in the future. From the committee’s perspective, the solution gives it, albeit belatedly, the very thing it sought to get: confirmation from McGahn in a formal interview of the things he told Mueller about Trump’s conduct. For reasons we will explain, there will be no subsequent fight over executive privilege. So the committee saves itself perhaps years of additional litigation—and saves itself as well the possibility of losing on either the executive privilege or the testimonial immunity question before either the en banc D.C. Circuit or the Supreme Court.
The agreement finally reached by the executive and Congress is not exactly earth shattering, in terms of either what it will allow the committee to ask McGahn or what his answers to those questions might unveil. In fact, it’s precisely the kind of messy interbranch accommodation that traditionally resolves this sort of standoff.
Under the terms negotiated by the parties, the committee will conduct a private interview of McGahn with a transcript to be revealed to the public within a week. Congress won’t ask McGahn about anything that isn’t already described in the Mueller report itself, and will constrain its questions to the portions of the report that are already public; there will be no digging into redactions here. McGahn won’t refuse to answer these questions on the grounds of executive privilege, but the Justice Department—whose counsel will also attend the interview—can still invoke the privilege, though the committee retains its right to challenge that invocation. Notably, Trump himself is not a party to the agreement.
It’s not surprising that Congress and the executive reached a deal here rather than hash things out in court. What’s unusual, in this case, is not the resolution, but the amount of litigation that took place before reaching it. The D.C. Circuit’s rulings in this case represent the only time an appeals court has had the opportunity to weigh in on such a dispute precisely because the political branches typically resolve these issues using the political push-and-pull of power between them.
Likewise, it’s also not surprising that the Biden administration chose to negotiate with Congress rather than withdraw any objection to McGahn testifying. Trump may have been unusually hostile in his attitude toward congressional oversight, but as Jonathan Shaub has written, the executive’s expansive view of testimonial immunity has developed over the past several administrations, both Republican and Democratic. Though Biden has expressed a commitment to rolling back Trump’s excesses, and though he shares a party affiliation with the majority in control of the Judiciary Committee, he is also the head of an executive branch that has an institutional interest in maintaining its own power against Congress—including the ability to assert immunity on behalf of presidential advisers. And, of course, Biden also has an interest in heading off any aggressive subpoenas from a House of Representatives that may, after the 2022 midterm elections, be under Republican control.
So who won here? There’s no simple answer to this question, but here are a few thoughts.
First, to the extent that Trump’s goal was to push things off until they didn’t matter any more, he certainly accomplished that. McGahn’s testimony was probably never going to be the game-changing moment that some Democrats seemed to expect of it. But it’s wholly trivial now, except in some retrospective mopping-up sense. If you believe that stalling the congressional investigation of the Mueller allegations helped bury them, Trump was able to accomplish that.
Second, the executive branch institutionally did not win. It spent two years litigating, rather, in order to get an accommodation that was almost certainly available to it at the time the subpoena was issued. Had the executive branch at that time refused to make McGahn available generally for public testimony but allowed him to give an interview with a transcript on matters limited to the Mueller investigation, the committee surely would have accepted that. Indeed, it probably expected no more when it sought his testimony. Because of Trump’s maximalism, the executive branch gained only an adverse district court opinion on the merits, an adverse en banc D.C. Circuit opinion on standing and a favorable D.C. Circuit panel opinion on the existence of a cause of action. That latter opinion, under the terms of the agreement, will now be vacated. The adverse opinions will not be vacated. So while Trump prevailed, the executive suffered losses.
Third, Congress itself both won and lost. It vindicated a principle insofar as the interview is happening. The committee will get on the record the facts it wants, and that’s no small thing. But critically, it did not get a precedent that can control future cases, except on the limited matter of standing. Perhaps more importantly, it gained nothing that would speed things up next time around. The president still has the ability to order the executive branch to defy all the subpoenas, and if Congress sues to enforce one against his close aides, he still gets to assert absolute immunity and Congress lacks a cause of action under which to compel testimony. He still gets to hold executive privilege in reserve. And he thus still gets to drag things out for years. In other words, imagine that it’s 2025 and that Trump has been newly reelected to the presidency and McGahn is once against his White House counsel. Nothing about this whole affair would disincentivize Trump from again taking a maximalist view of how to respond to a congressional subpoena for McGahn’s testimony.
In the end, the basic problem here is that litigation is the wrong instrument for resolving these disputes and that Congress itself has disabled the more useful instruments. If Congress wants to compel testimony, using the power of the purse to do so—making, say, next year’s appropriation for some important thing contingent on executive compliance with subpoenas—is a far more powerful tool than conventional litigation. But as our colleague Molly Reynolds points out, by passing appropriations in giant high-stakes omnibus bills, rather than in regular appropriations, Congress makes it very difficult for itself to pick smaller fights and win them. Congress, after all, isn’t going to shut down the entire federal government over McGahn’s testimony.
In the long term, the answer to this problem lies not in judicial doctrine but in the more efficient deployment of Congress’s own powers. The experience of the Trump administration has led many scholars and commentators to reconsider the power of the presidency and the relationships between the branches. It should also push Congress to become more open to asserting its own authority—and organizing its own rules and conduct so as to do so.