The White House is barring a former top aide to President Trump from answering dozens of questions about her time in the administration, angering House Democrats and raising the prospect of lawmakers asking the courts to settle the issue.
During a closed-door interview with the House Judiciary Committee on Wednesday, a White House attorney and Justice Department lawyer kept Hope Hicks from answering questions about her tenure in the West Wing, claiming immunity for the executive branch — although Hicks is a private citizen.
Democrats immediately countered that the immunity assertion was made up, accusing the White House of trying to stonewall their investigations.
Democrats had hoped to press Hicks on matters related to Trump’s alleged efforts to obstruct the Russian election interference investigation, including Trump’s firing of FBI Director James B. Comey and his anger at former attorney general Jeff Sessions, a longtime target of Trump’s rage over his refusal to protect him from the investigation.
But Democrats made little to no headway with Hicks. As The Post reports, the White House’s assertion of immunity “even extended to simple questions about where her office was located, according to lawmakers in the room.”
The White House counsel had argued that Hicks is “absolutely immune” from answering questions from Congress, claiming that this “protects the core functions of the presidency.”
It’s true that the long-standing position of presidential administrations has been that close advisers have “absolute immunity” to congressional subpoenas to preserve presidential prerogatives. But in this case, the legal theory is being used as part of a comprehensive strategy of total resistance to oversight on just about every conceivable front.
Democrats are now set to go to court to force McGahn’s testimony. And they are likely to do the same with Hicks.
But here’s the question: How long will that take?
Stephen Vladeck, a law professor at the University of Texas at Austin, told me that Democrats might have a strong case on both McGahn and Hicks, because both “are no longer in the executive branch."
“But it’s going to take months, if not a year or two, to get a conclusive judicial resolution, especially if that includes going all the way to the Supreme Court,” Vladeck added.
And this underscores what a big risk Democrats are taking in counting on conventional oversight, as opposed to an impeachment inquiry, to hold Trump accountable.
Democrats are taking a big risk
Multiple legal experts have insisted that an impeachment inquiry might strengthen Democrats’ hands in these court battles. As Michael Stern, a former counsel to the House of Representatives, has argued, although Democrats currently have a good case to compel testimony, it would be even more “absurd” for the courts to rule that former White House aides “are somehow immune from testifying in an impeachment proceeding as fact witnesses to alleged high crimes and misdemeanors.”
What’s more, there’s at least a decent chance the courts would act more quickly in an impeachment inquiry context. “When information is sought solely for oversight purposes, it is difficult to convince judges that there is urgency in securing evidence,” Stern notes. “By contrast, there is a clear urgency to resolve impeachment matters.” Other experts agree that the courts could move more quickly.
But, you will say, these are disputed points. Okay, let’s accept that they are. What happens if months go by as these court battles are waged — as it now looks like will happen with both Hicks and McGahn — and then Democrats end up losing some of them?
Maybe that’s not likely. But it could happen. And if it does, at that point, Democrats will undoubtedly say that it’s too late to launch an impeachment inquiry, because the election is looming.
But that would also mean it’s too late to use an inquiry to at least try to maximize Democratic leverage in these oversight battles. In this scenario, we will never know whether that would have worked, and oversight will have been neutered.
Stonewalling such as Hicks’s may build more pressure on Democrats to initiate an inquiry. Even moderates, such as Rep. Katie Porter (D-Calif.), now support one, as do nearly 70 House members. But House Speaker Nancy Pelosi (D-Calif.) appears adamantly opposed.
Apparently, Democratic leaders think the risks I laid out above are worth taking. If so, let’s at least be clear-eyed about what they entail.
“What I witnessed today was obstruction of justice in action," Rep Ted Lieu (D-Calif.), a member of the Judiciary Committee, told me in a statement from his office. “This highlights the extreme challenge of moving forward with traditional oversight in the face of extraordinary obstruction.”
Lieu added that Democrats should “immediately litigate a a contempt action against Hicks,” and go straight into court.
But this “extreme challenge of moving forward with traditional oversight” also highlights the risks Democrats are taking in refraining from an impeachment inquiry. Those risks look heightened after this Hope Hicks fiasco.