There’s just one problem: “Quickly” in civil litigation translates into “glacial” on the timetable of news and politics, which is what will really drive the fortunes of the committee’s impeachment inquiry.
The committee has told the district court that McGahn is the single most important witness for its inquiry (other than the president himself), and the Mueller report on Russian interference in the 2016 election substantiates that in full. Former special counsel Robert S. Mueller III detailed multiple acts of arguable obstruction of justice by Trump that McGahn witnessed personally. These include Trump’s order to McGahn to remove Mueller and, thereafter, to create a false record to conceal that fact. The report mentions McGahn more than 160 times in its chronicle of Trump’s act of possible obstruction.
The committee’s federal court complaint puts the point in critical terms: “Given McGahn’s central role as a witness to the President’s wide-ranging potentially obstructive conduct, the Judiciary Committee cannot fulfill its constitutional legislative, investigative, and oversight responsibilities — including its consideration of whether to recommend articles of impeachment — without hearing from him.”
Little doubt, then, that McGahn is the witness whose testimony the administration most wants to block. To do so, it has deployed a cynical strategy: The afternoon before McGahn was due to testify, current White House counsel Pat Cipollone wrote to Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) asserting that McGahn was “absolutely immune” from testifying about matters that occurred when he was White House counsel.
This “absolute immunity” claim is a kooky and newfangled concept essentially plucked out of thin air to keep McGahn, as well as former White House communications director Hope Hicks, from even showing up in Congress in the first place.
But the administration’s submission is designed less to win in court then to stall in the more important political arena. Discreditable as that strategy might be, the administration is likely to win by losing.
That is because even if District Judge Ketanji Brown Jackson churns out an opinion in record time, the administration can still engage in additional procedural tactics. Far more important, it can take an appeal to the D.C. Circuit, followed by a petition for certiorari in the Supreme Court. Unusually quick work by the courts at all turns would still push the case into the middle of next year, at the earliest, before McGahn has to raise his right hand at a House hearing.
And that of course is a lifetime of news cycles, legislative maneuvers and electoral politics. Even now, the urgency of McGahn’s testimony seems much diminished just by the passage of the month since the House went to court. Who knows if voters would even notice it by the time it’s finally compelled?
So the committee is in a fix, in part because it took so long to get off the dime following the issuance of the Mueller report. It will have to operate according to the federal court calendar while pivotal events take place on the enormously faster calendar that governs TV reporting and election-year politics.
It is like one of those science fiction movies in which one party is moving near the speed of light and the other is stuck in earthly time.
The committee should get justice eventually. But the wheels of justice grind way too slowly to cover the political ground that the committee needs to cover in the next three months.
Remember Donald McGahn?