Former White House counsel Donald McGahn’s interview with congressional investigators Friday will close one lingering chapter of House Democrats’ crusade to hold the Trump administration to account — but is likely to leave uncertainty in its wake about what will happen in lawmakers’ next test of wills with the White House.
McGahn, considered a star witness in former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election, flouted a congressional subpoena for two years and is not expected to offer any bombshell revelations about former president Donald Trump — beyond those he already provided to Mueller — when he meets with the House Judiciary Committee behind closed doors.
Instead, the appearance is Democrats’ way of demonstrating that congressional subpoenas must be obeyed — an argument they offered throughout a lengthy legal battle that seemed destined to reach the Supreme Court before a deal with the Biden administration ended the fight in what may prove to be a political win, but at best is a constitutional draw.
“In order to actually get what it wanted, Congress basically had to abandon its wins” in court, said Steve Vladeck, a professor of law at the University of Texas. “That’s the big lesson here: these compromises aren’t really compromises; they’re Congress believing that something is better than nothing.”
The McGahn case is only the latest subpoena battle royal to have ended in a settlement after an administration has left office. It happened after the Democratic-led House sued to force testimony from President George W. Bush’s White House counsel Harriet Miers, and when the Republican-controlled House went after President Barack Obama’s attorney general, Eric H. Holder Jr.
But arguably, it is McGahn’s case that has had the broadest oversight implications.
Democrats and many legal experts viewed McGahn’s recollections to Mueller as evidence that Trump obstructed justice in the Russia probe. Yet his elusive testimony over both impeachments was a cautionary tale, with House Democrats choosing not to fight in court over any potentially intractable conflicts tied to witness testimony — for fear that doing so would slow their momentum and erode public support for their efforts.
Attempts to contact McGahn were not successful.
The episode also was one of the main inspirations behind House Democrats’ efforts to craft a battery of reforms to better address presidential abuses of power, which included directives to accelerate the pace at which courts review cases involving such congressional summonses. The measure was unveiled last fall, but never voted on.
Some Democrats are hopeful McGahn’s long-awaited turn through Capitol Hill will help revive interest in those reforms, which recently have been the subject of discussions between Congress and the White House, according to people familiar with the ongoing effort. They spoke on the condition of anonymity to discuss a fluid policy matter.
Democrats also hope it will be possible to build bipartisan support for the bill, as its contents, though Trump-inspired, grant Congress authority that could be used as a means to check the Biden administration — particularly if Republicans are able to seize control of the House or Senate during next year’s midterm elections.
In the more immediate future, House Democrats hope their deal for McGahn’s testimony will provide a road map for how to satisfy other high-profile subpoenas still pending before the courts, including their lawsuits for Mueller’s still-secret grand jury materials, Trump’s tax returns, and the former president’s financial records from Deutsche Bank. But the nuances of each case, including the parties, are all different.
“Disputes over information are going to be fact-intensive disputes,” said Josh Chafetz, a law professor at Georgetown University who said he is generally critical of Congress relying on the courts as a forum to enforce its subpoenas. Even with the accelerated timelines for judicial review envisioned in the proposed House reforms, Congress is going to have a tough time strengthening its hand against a noncompliant White House, he argued.
“A ‘win’ at the end of the day . . . is not getting a favorable court ruling, it’s getting information in a timely manner,” he said. “I’m not at all convinced they can put any time frame in place that will lead to a final judgment on the merits” of these subpoenas.
As McGahn’s case illustrated, Congress’s oversight objectives seem doomed to wait on the whims of the executive branch, unless some changes are made to their preferred mechanism for enforcing subpoenas. But with Democrats having only a five-seat advantage in the House, and barely holding the majority of a 50-50 Senate, it is impossible to make those changes without buy-in from the Biden administration.
Spokespeople for the White House did not offer details about their discussions with the Hill, which began after lawmakers approached the White House for their input. While others involved in those talks insist the White House is committed in concept to closing loopholes Trump exploited, they say the devil is in the details, considering Biden is the first potential president to whom the restrictions might be applied.
“This is a perfect example of how the separation of powers ought to trump the separation of parties,” Vladeck said. “If it’s not going to be when the Democrats control the White House and Congress, then I don’t know when it’s going to happen again.”