Friday was the day Don McGahn finally spoke to the House Judiciary Committee, though he did so behind closed doors pursuant to an agreement reached between the committee and the Biden Justice Department. What McGahn has to say may or may not be of some public interest, but it is unlikely to be as important as the agreement itself.
McGahn, you may recall, was White House counsel in the early part of the Trump administration. In the spring of 2019, well after McGahn had left his position and returned to private life, the committee subpoenaed him to give testimony in its investigation into matters related to the Mueller report. The attachment to the subpoena, which instructed McGahn to bring documents still in his possession regarding certain specified matters, gives some indication of the broad spectrum of topics upon which the committee was seeking to question him. Most of these were subjects covered to some extent by the Mueller report, but Mueller did not necessarily report on McGahn’s involvement in all of them. For example, the subpoena sought documents on potential presidential pardons for various individuals, including Paul Manafort, Michael Flynn and Roger Stone (all of whom later received pardons), but the Mueller report does not reveal what, if any, role McGahn may have had in pardon discussions.
McGahn refused to appear for his deposition based on instructions from President Trump, who invoked the longstanding but highly controversial executive doctrine that senior presidential aides enjoy absolute immunity from compelled congressional testimony regarding their official duties. The committee thereupon commenced a federal lawsuit seeking a court order requiring McGahn to appear. The Trump Justice Department, representing McGahn in the lawsuit, offered three primary arguments for dismissal of the suit: (1) constitutional separation of powers principles establish that a congressional committee lacks standing to sue for enforcement of a subpoena; (2) the committee’s suit lacked statutory authorization; and (3) McGahn was absolutely immune from compelled congressional testimony regarding his service as White House counsel.
These arguments met with what might be charitably described as a mixed reception by the courts. The district judge (Kentaji Brown Jackson, now a nominee to the D.C. Circuit) firmly rejected all three arguments, reaching identical conclusions on these questions as had another district judge (John Bates) in a similar case in 2008. Judge Jackson issued a lengthy opinion excoriating the Justice Department’s legal arguments. She was particularly incredulous of DOJ’s position that the president, as the “owner” of this alleged immunity, could exercise absolute control over the communications of his aides, even after they left the government. This assertion “brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life” and was inconsistent with the proposition that “Presidents are not kings” and “do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
McGahn appealed to the D.C. Circuit, where he initially met with more success. A three judge panel ruled 2-1 that the committee lacked standing to sue, holding in an opinion written by Judge Griffith that the case presented an interbranch dispute that must be resolved through political negotiation and accommodation rather than by the judiciary. Judge Rogers vigorously dissented from the majority’s “extraordinary conclusion” which, she contended, “removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”
It should be noted that nothing in the panel’s ruling suggests any inclination to support the Justice Department’s position on absolute immunity. To the contrary, Judge Griffith, while noting there was no need to reach the merits, obliquely referenced the president’s “blatant refusal to cooperate with the Committee’s investigation into his alleged wrongdoing” and warned that while the political branches may “disagree in good faith about their obligations to one another . . . the legitimate scope of that disagreement is not boundless.” Judge Henderson, concurring, went further, criticizing McGahn’s “absolutist stance” which “rests on somewhat shaky legal ground.” Judge Rogers agreed with Judge Henderson that if the court were to reach the merits “McGahn would be unlikely to prevail” and noted that the Supreme Court’s decision in United States v. Nixon “would appear to foreclose McGahn’s argument on the merits.”
In any event, the full D.C. Circuit granted rehearing en banc and concluded in a 7-2 decision (Griffith and Henderson being the only dissenters) that the committee did in fact have standing to seek judicial enforcement of its subpoena. The majority opinion by Judge Rogers, however, did not address the other issues raised by McGahn, instead remanding the case to the original panel to address those issues.
The panel then again split 2-1 on the question whether the committee had a cause of action to enforce its subpoena, with Judge Griffith again writing (on the last day before his retirement) the majority opinion which held that a congressional subpoena enforcement action against the executive branch would require specific statutory authorization, which Congress had failed to enact despite repeated attempts over the years. Judge Rogers again dissented, finding both that the committee had an implied cause of action under the Constitution and a cause of action pursuant to the Declaratory Judgment Act. Judge Rogers also addressed the merits, finding that the absolute immunity theory was based on “a view of Presidential power expressly rejected by the Supreme Court” in Nixon.
The case did not end there, however. The full court agreed again to review the panel’s ruling en banc. By this time, though, it was well into the fall of 2020, and the court set argument for February 2021, when there would be a new congress and (as it turned out) a new administration. Continue reading “House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal”