“Discussions among the relevant parties have begun, and the new Administration believes the parties would benefit from additional time to pursue these discussions,” Justice Department lawyers told the court in a filing late Wednesday.
A central question in the case is whether a congressional committee can compel testimony of a close presidential adviser. While the Biden administration may not be inclined to block testimony from Trump’s former legal counsel, it is possible that the White House hopes to preserve an ability to shield close advisers from being forced to testify before Congress.
Pelosi’s general counsel Douglas Letter told the court that McGahn’s testimony related to the investigation of Russian interference in the 2016 presidential election is still “essential” to lawmakers’ oversight responsibilities. McGahn was a key witness, Letter wrote, “to several of the most serious instances of President Trump’s misconduct” detailed in the report from former special counsel Robert S. Mueller III.
“We appreciate the Biden Administration’s efforts to settle this case, and we have actively participated in those efforts. But we do not believe that postponing the argument will improve the prospect of a settlement,” Letter responded in a court filing.
Letter said he expects that the Biden administration will consult with McGahn and Trump as part of the negotiations — discussions that he said would complicate a possible agreement and further delay McGahn’s testimony.
Argument before the court scheduled for Feb. 23 could instead provide “momentum for further productive discussions among the parties,” Letter said.
This is the second time the case has reached the full D.C. Circuit since the House Judiciary Committee initially subpoenaed McGahn in 2019 before the start of the first impeachment investigation of Trump. At the time, Trump directed McGahn to disregard the subpoena and said that key presidential advisers are “absolutely immune from compelled congressional testimony.”
In August, the full appeals court sided 7 to 2 with House Democrats in finding that lawmakers have standing to sue and that the “effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of Congressional subpoenas when necessary.”
The court sent the case back to a three-judge panel, which promptly dismissed the lawsuit because Congress had not passed a law expressly authorizing it to sue to enforce its subpoenas.
The initial appeal followed a decision from U.S. District Judge Ketanji Brown Jackson, who rejected the White House’s blanket claim of immunity, finding that witnesses instead can invoke executive privilege in person, question by question, after answering subpoenas.