House Democrats file lawsuit to enforce subpoena against McGahn

House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerBarr to speak at Notre Dame law school on Friday The 13 House Democrats who back Kavanaugh's impeachment Ignore the hype — this is not an impeachment inquiry MORE (D-N.Y.) filed a civil lawsuit Wednesday to enforce a subpoena for testimony from Don McGahn, the former White House counsel who at the Trump administration's direction defied lawmakers’ request to appear before the Judiciary panel.

The announcement comes two weeks after former special counsel Robert MuellerRobert (Bob) Swan MuellerFox News legal analyst says Trump call with Ukraine leader could be 'more serious' than what Mueller 'dragged up' Lewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network MORE, who interviewed McGahn extensively as part of his probe into possible obstruction of justice by President TrumpDonald John TrumpGOP congressman slams Trump over report that U.S. bombed former anti-ISIS coalition headquarters US to restore 'targeted assistance' to Central American countries after migration deal Trump says lawmakers should censure Schiff MORE, testified for nearly seven hours on Capitol Hill about his 22-month long Russia investigation.

ADVERTISEMENT

Lawyers for Judiciary Committee Democrats described McGahn as both “critical” and the “most important fact witness” during a call with reporters Wednesday before the lawsuit was filed, noting that he witnessed key obstruction episodes examined by Mueller. 

Those incidents include the president ordering McGahn to remove the special counsel in the middle of his investigation, which McGahn refused to do, and President Trump directing the then-White House counsel to create a false record surrounding the incident.

One Judiciary counsel compared McGahn to John Dean, the former Nixon White House counsel whose testimony before Congress was viewed as pivotal during Watergate.

It is fair to say that Mr. McGahn is cited more than any other witness” in the Mueller report, another Judiciary counsel said, suggesting the president is stonewalling his testimony because Trump worries it could be damaging.

Nadler indicated shortly after Mueller’s testimony that the McGahn lawsuit, which has been expected for several weeks, was imminent. 

The chairman subpoenaed McGahn as part of his panel’s sprawling investigation into possible obstruction and other abuses of power by Trump. 

In response, the White House has accused Nadler of attempting a politically motivated “re-do” of Mueller’s probe and has resisted his requests for documents in addition to blocking McGahn and other potential witnesses from testifying about their time in the West Wing. 

“The Judiciary Committee is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel,” the lawsuit reads. “But it cannot fulfill this most solemn constitutional responsibility without hearing testimony from a crucial witness to these events: former White House Counsel Donald F. McGahn II.”

The complaint argues that lawmakers cannot move forward with their impeachment efforts without hearing from McGahn, referring to him as “the most important witness, other than the President, to the key events that are the focus of the Judiciary Committee’s investigation.”

“Given his central role in these and other events outlined in the Report, McGahn is uniquely positioned to explain those events, bring additional misconduct to light, and provide evidence regarding the President’s intent,” the lawsuit states.

The complaint also argues that McGahn’s testimony is also needed as the Judiciary Committee considers whether to pass legislation “addressing the types of misconduct the Report describes, overseeing ongoing investigations arising from the Special Counsel’s initial investigation, and ensuring the integrity of our elections in 2020 and beyond.”

The case has been assigned to D.C. District Court Chief Judge Beryl Howell, an Obama appointee who is also overseeing the Judiciary Committee’s suit seeking grand jury materials included in the Mueller report.

McGahn’s counsel, William Burck, said his client will comply with the White House’s order over that of the Judiciary committee’s, “absent a contrary decision from the federal judiciary.” 

“People should not forget that Don McGahn is a lawyer and has an ethical obligation to protect client confidences, and as I have said before, Don does not believe he witnessed any violation of law,” Burck said in a statement to The Hill. 

“The President instructed Don to cooperate fully with the Special Counsel but directed him not to testify to Congress unless the White House and the Committee reached an accommodation. When faced with competing demands from co-equal branches of government, Don will follow his former client’s instruction, absent a contrary decision from the federal judiciary,” Burck continued.

Rep. Doug CollinsDouglas (Doug) Allen CollinsHillicon Valley: FCC approves T-Mobile-Sprint merger | Dems wrangle over breaking up Big Tech at debate | Critics pounce as Facebook's Libra stumbles | Zuckerberg to be interviewed by Fox News | Twitter details rules for political figures' tweets Graham huddles with House Republicans on impeachment strategy House investigators receive initial documents from top tech companies MORE (Ga.), the top Republican on the Judiciary Committee, bashed the move, saying the lawsuit would serve to “only to shut off this committee’s access to White House and [Department of Justice] documents.”

“Their insistence on having Don McGahn testify publicly before the cameras further proves they are only interested in the fight and public spectacle of an investigation, but not actually in obtaining any real information,” Collins said in a statement.

The White House has invoked “absolute immunity” in instructing McGahn to defy the congressional subpoenas, claiming that the confidential nature of executive branch activities shields the former counsel from making any of those conversations public.

Whether that doctrine would hold up in court remains to be seen, although some legal experts are doubtful. A federal court in Washington, D.C., previously ruled that Harriet Miers, the White House counsel under former President George W. Bush, was not immune from testifying. 

That decision was appealed, but an agreement for Miers's closed-door testimony was reached before the case was fully resolved.

Judiciary committee lawyers pointed to the Miers case as backing up their legal arguments. And one lawyer said that there is “no such thing” as the concept of “absolute immunity.”

“It’s an invented doctrine that we think will, as it has before, not hold up to court scrutiny,” the lawyer said.

The Democratic counsels also announced Wednesday that they have reached an agreement to review documents subpoenaed from McGahn. They said the deal was made in recent days, and that they will be allowed to comb through the documents to see what is most important to them and their efforts.

The terms of the agreement mean that the committee cannot make those documents public, at least for the time being.

However, the committee made clear on Wednesday that McGahn’s testimony is what they are truly after.

The Democratic lawyers said they want McGahn to testify openly and in front of the “American public” about what he saw firsthand, including how Trump reacted to certain news, like Mueller’s appointment.

“This has the potential to be the most important of them all,” one of the committee counsels said, comparing it to other “riveting moments of congressional testimony.”

Democrats hope to use the national spotlight on McGahn's testimony to paint a picture of a corrupt commander in chief who is unfit to lead. And the lawsuit to obtain McGahn’s testimony comes with a majority of House Democrats now in favor of formally opening up an inquiry to decide whether to introduce articles of impeachment against the president.

The committee is currently carrying out an “impeachment investigation” in which Democrats claim their probe is broader than an impeachment inquiry; they are seeking to collect information to decide whether to move forward with impeachment, but they are also considering other possible punitive measures like censure.

Democrats, who have described this lawsuit as the next “evolution” of their probe, have accused the White House of obstructing it and other House investigations into Trump and his administration and are seeking to remedy what they describe as stonewalling. 

ADVERTISEMENT

Nadler issued a subpoena for documents and testimony from McGahn on April 22, days after the release of Mueller’s redacted 448-page report, which detailed nearly a dozen episodes in which Trump may have obstructed the investigation.

McGahn declined to comply with the document request on instructions from the White House, which said the records “implicate significant Executive Branch confidentiality interests and executive privilege” and told Nadler to direct the requests to the West Wing instead. 

McGahn did not appear for May 21 public testimony on instructions from Trump, who cited a new Justice Department Office of Legal Counsel opinion asserting that McGahn is immune from compelled congressional testimony about his tenure in the White House. 

Under the standard of immunity, the administration argues that current and former aides cannot be required to disclose what took place in the White House because of the confidentiality protections offered to the executive branch.

The immunity concept has been invoked by Republican and Democratic administrations, but there is virtually no case law on the subject, and some legal experts say the White House is likely to lose in court. 

Still, the proceedings could significantly delay the panel’s efforts to receive material and testimony from McGahn. 

The Democratic lawyers acknowledged Wednesday that it could be some time before they get a ruling in the case. But they said the committee will remain active in other ways as it pushes forward with its efforts to determine whether or not to formally start impeachment proceedings.

—Updated at 6:01 p.m.

 

Judiciary Committee v McGahn by Jacqueline Thomsen on Scribd