House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal

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.

Background  

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. 

The Agreement

At the start of the new Congress the committee reissued the subpoena to McGahn. At that point it could have simply continued the litigation or insisted that the Biden administration drop its representation of McGahn and/or any objection to his appearance. Instead, it entered into negotiations with the Justice Department; these dragged on for several months and required multiple postponements of the oral argument date. Finally, the parties announced that they had reached an agreement, the terms of which may be found here.

The agreement provides that the committee “will conduct a transcribed interview of Mr. McGahn rather than calling Mr. McGahn to testify at a public hearing.” The interview will not be open to the public, but may be attended by members and counsel for the committee, private counsel representing McGahn, and counsel from the Justice Department. A transcription will be prepared, which eventually will be made public. 

The interview will be limited in scope to “[i]nformation attributed to Mr. McGahn in the publicly available portions of the Mueller Report and events that the publicly available portions of the Mueller Report indicate involved Mr. McGahn,” including specifically “[w]hether the Mueller Report accurately reflected Mr. McGahn’s statements to the Special Counsel’s Office, and whether those statements were truthful.” Specifically excluded from the scope are “[c]ommunications between Mr. McGahn and other Executive Branch officials that are not disclosed in the publicly available portions of the Mueller Report.”

Perhaps most importantly, the agreement provides that “Mr. McGahn will be free to decline to answer questions outside of the agreed-upon scope of questioning from the Department of Justice may instruct Mr. McGahn not to answer such questions.” While “[n]o assertions of executive privilege will be made with respect to information provided by Mr. McGahn to the Special Counsel and attributed to Mr. McGahn in the publicly available portions of the Mueller Report,” “counsel from the Department of Justice otherwise retain the right to assert executive privilege.”

Assuming that the parties complete the interview of McGahn to their mutual satisfaction (which appears to be the case), it is agreed that the current appeal will be dismissed and that the committee will ask the D.C. Circuit to vacate the most recent opinion of the three judge panel which was to be reviewed en banc. The committee will represent in its motion that “the Executive Branch believes that the panel opinion was correct but, in the interest of accommodation between the branches, agrees that the Court should vacate the panel opinion.” Finally, the parties agree that in the future they “will support this accommodation as an appropriate resolution of the dispute between the branches, without prejudice to either party’s ability to advocate for their position on any legal issue that may be raised.”

A Bad Deal for Congress

So what does this all mean? Professor Jonathan Shaub has a Lawfare post which explains in some detail why this agreement is such a bad deal for Congress. I basically agree with everything he says, but I have some differences in emphasis and a few additional points that I think are worth bringing out. (And I feel the need to vent anyway). The problems with the agreement, in ascending order of significance, can be put into three categories: (1) the limited information McGahn will provide; (2) the effect on governing caselaw; and (3) the institutional precedent set for the political branches.

Information. Shaub  notes that McGahn has agreed to testify only to a narrow scope of information, arguably limited to simply confirming what he already told the special counsel. The agreement is somewhat ambiguous on this point because it includes “events that the publicly available portions of the Mueller Report indicate involve” McGahn, which would cover a number of significant matters (such as the Flynn investigation, the firing of FBI Director Comey, the recusal of Attorney General Sessions and, most significantly, Trump’s direction to McGahn to have Mueller fired and his subsequent attempt to bully McGahn into lying about this), though certainly not everything the committee might be interested in exploring. On the other hand, the agreement expressly excludes communications with other executive officials not previously disclosed in the Mueller report. Thus, McGahn could presumably refuse to discuss a previously undisclosed communication about, for example, the Comey firing, even though the Mueller report demonstrates his involvement in that firing.

As a practical matter, though, this strikes me as the least significant of the committee’s concessions. At this point the executive branch has delayed McGahn’s testimony past the point that it implicates a potential impeachment or other matter of major public interest. It is understandable, if not exactly commendable, that the committee prefers to take what it can get and move on, rather than continuing to expend resources in order to get what may or may not turn out to be additional interesting information. This is particularly true given that even a final decision on the merits would not guarantee that the committee could get all of the information it wants; McGahn would still have been able to assert executive privilege as to particular questions or subject matter.

Caselaw. More significant than the information the committee is giving up is the lost opportunity to establish favorable judicial precedent on the three issues raised by DOJ in its defense of the McGahn case. As Shaub puts it, “the House has forfeited what was, as a matter of history, its most advanced and most favorable opportunity since Watergate to cut back on broad assertions of presidential prerogatives over information.”

To be sure, the committee and Congress are better off than they were before the McGahn case started. There is now a controlling circuit precedent recognizing congressional standing to enforce subpoenas against the executive branch, and this will remain the governing law unless and until the Supreme Court takes up the issue.

Unfortunately, having standing is not that useful without a cause of action and  a basis for federal jurisdiction, both of which are required before a court can enforce a subpoena. It is clear that DOJ will continue to assert that Congress lacks the former at least and most likely both of these prerequisites to enforcement.  Had the committee continued the litigation, there is a possibility it could have lost on one or both of these points (which collectively I have referred to as the statutory authorization issue), but the odds are that it would have prevailed before the full court. As things stand now, in contrast, it will continue to face substantial uncertainty as to whether a court will reach the merits of a subpoena enforcement action.

The good news is that this uncertainty could be removed by a statute authorizing such suits, and there apparently are discussions between congressional Democrats and the Biden administration about enacting legislation along these lines. But the administration would have a stronger incentive to support this legislation had the committee not settled the McGahn case.

The committee also lost the opportunity to get a favorable appellate level ruling on the absolute immunity issue. I am very confident that the committee would have prevailed on this issue (assuming the court reached it). At the same time, the Justice Department’s position on absolute immunity has received such a chilly reception in the courts that it may be somewhat chastened about pushing it too far. I don’t expect the Biden administration to abandon this position, but I think (or hope) that will be reluctant to set up another test case in the courts anytime soon.

Institutional Precedent. Here is where the agreement struck by the committee goes from bad to worse. As Shaub points out, by agreeing to such a limited scope of questioning, the committee has obtained access only to information which it would be extremely difficult to claim are still protected by executive privilege at all, namely statements by McGahn that the Mueller report already discloses he made. Meanwhile, the committee implicitly accepts the executive’s broad view of privilege by agreeing not to ask about anything else, including discussions with other executive officials that would not be (at least in Congress’s view) protected under a proper view of executive privilege. Furthermore, nothing in the agreement acknowledges the principle that executive privilege cannot and/or should not be invoked with respect to investigations of government misconduct, a principle that once represented a rare area of agreement between the branches.

Even worse than this is the committee’s agreement to allow the Justice Department to attend McGahn’s interview. Recall that one of the issues in Trump’s first impeachment was whether House committees could exclude agency counsel from depositions or interviews of government officials. Compare Trial Memorandum of President Donald J. Trump 46-47 (Jan. 20, 2020) (“The requirement for congressional committees to permit agency counsel to attend depositions of Executive Branch officials is firmly grounded in the President’s constitutional authorities . . .”) with Reply Memorandum of the United States House of Representatives in the Impeachment of President Donald J. Trump 24-25 (Jan. 21, 2020) (“the decades-old rule excluding agency counsel from House depositions– first adopted by a Republican House of Representatives majority– exists for good reasons”). Here the committee has not only acceded to the participation of the Justice Department but has done so for a former White House counsel of a former administration (and one who already has his own personal counsel).

Worst of all, the committee allowed the Justice Department to assert executive privilege and to instruct McGahn not to answer questions. This implicitly endorses the idea, properly rejected by Judge Jackson, that the president somehow “owns” the information in the heads of subordinate officials, even former officials like McGahn who are now private citizens, and can prevent them from disclosing that information to Congress or others. And it accepts that the Justice Department has the authority to assert executive privilege, which flies in the face of the principle, also historically recognized by both branches, that only president personally may invoke the privilege.

Given the other concessions made by the committee, one would think it could have negotiated an arrangement under which McGahn was represented in the interview by his personal counsel alone. If there was a question that arguably implicated executive privilege, counsel could consult with the Department before allowing McGahn to answer. If the committee insisted on an answer DOJ believed to be protected by executive privilege, DOJ could then ask President Biden if he wanted to invoke the privilege.

Why wasn’t such an arrangement reached? I suspect the answer is that while the Justice Department was protecting its institutional interests, the House negotiators were more interested in the political interests of their party, including protecting Biden from having to make any difficult or controversial decisions. Indeed, the agreement itself is styled as “an accommodation between the Committee on the Judiciary and the Executive Branch,” which is odd because “the executive branch” is not a party to the lawsuit nor, to my knowledge, an entity that normally enters into agreements. I have to assume that this is just another way of trying to distance the president from any responsibility for this outcome.

Shaub closes his piece as follows:

After this agreement, Congress still lacks the authority to compel McGahn’s testimony or the testimony of any presidential adviser. It has relinquished any claim to authority to question McGahn about anything beyond information that has already been made public. It has lost any opportunity to challenge the executive branch’s view of privilege or testimonial immunity in court. And it has acknowledged the continued ability of the current Justice Department to assert privilege over this information. [Chairman] Nadler and others have industriously carved out a narrative that this represents a “win” or validation for Congress. But I am not convinced.

Me neither.

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