Congressional Subpoenas of Presidential Advisers: The Impact of Committee on the Judiciary v. McGahn

Congressional Subpoenas of Presidential Advisers: The Impact of Committee on the Judiciary v. McGahn

Legal Sidebari

Congressional Subpoenas of Presidential
Advisers: The Impact of Committee on the
Judiciary v. McGahn
December 3, 2019
The House of Representatives obtained another judicial victory last week in the continued confrontation
with the Trump Administration over the scope of Congress’s investigative powers. In Committee on the
Judiciary v. McGahn, the U.S. District Court for the District of Columbia (D.C. District Court) held that
former White House Counsel Donald McGahn is legally required to appear before the House Judiciary
Committee. Though the D.C. District Court’s order has been temporarily stayed by the U.S. Court of
Appeals for the D.C. Circuit (D.C. Circuit), the lower court ruling is significant in that it squarely rejects
the Department of Justice’s (DOJ) argument that presidential advisors like McGahn enjoy absolute
immunity from compelled congressional testimony. Instead, if the district court’s ruling goes into effect,
McGahn must appear before the committee and invoke specifically applicable privileges where
appropriate. The district court opinion joins other recent judicial decisions supporting congressional
access to information, including a district court order granting the Judiciary Committee access to grand
jury materials connected to the Mueller Report and multiple decisions, including two at the appellate level
rejecting the President’s attempts (in his private capacity) to quash House committee subpoenas for his
financial records. The House, however, has yet to receive the benefits of any of these decisions, all of
which have been stayed in one form or another as appeals proceed to higher courts. (This includes today’s
Second Circuit decision in Trump v. Deutsche Bank which, by its own terms, is stayed for seven days to
allow for a petition to the Supreme Court for a possible extended stay.) Thus, the practical impact of
McGahn and other cases on the House impeachment investigation is yet uncertain.
The McGahn opinion is not the first from the D.C. District Court rebuffing DOJ’s assertion that White
House advisers cannot be compelled to provide testimony to a congressional committee. As discussed in
greater detail in this previous Sidebar, the 2008 decision of Miers v Committee on the Judiciary rejected
this same argument when raised by the George W. Bush Administration to prevent former White House
Counsel Harriet Miers from appearing before the House Judiciary Committee as part of an investigation
into the firing of U.S. Attorneys. In ruling that Miers was compelled to appear, the district court reasoned
that the DOJ’s “asserted absolute immunity claim” was “entirely unsupported by existing case law.” The
McGahn opinion took a similar tack, holding that the DOJ’s immunity assertion with respect to McGahn
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“has no principled justification” and “no basis in law.” Absolute immunity, the district court reasoned, is a
“fiction” that “simply does not exist.”
It is too soon to predict the impact the McGahn opinion will have on the current dispute between the
House and the executive branch over committee access to the testimony of presidential advisers. This is
especially true since the DOJ has already appealed the decision to the D.C. Circuit and obtained a
temporary stay on the district court’s order.
But there are reasons to believe that the decision will lend support to the House’s ongoing investigations
of the President. First, the court’s holding that presidential advisers must respond to valid congressional
subpoenas for testimony will likely improve Congress’s ability to obtain testimony not only from
McGahn, but also perhaps from other officials who are currently withholding testimony in the House
impeachment investigation. For example, some current and former White House advisers who have thus
far refused to testify have suggested that they would be amenable to judicial guidance on how to navigate
competing and incompatible demands from Congress’s subpoena for testimony and the President’s
directive not to testify. The McGahn opinion arguably provides that guidance, holding that “individuals
who have been subpoenaed … must appear for testimony in response to that subpoena—i.e., they cannot
ignore or defy congressional compulsory process, by order of the President or otherwise.” However, the
opinion— which some say should not be read to address testimonial immunity for those that give the
President advice on issues of national security or foreign affairs—does not appear to have influenced the
decisions of officials like former Deputy National Security Adviser Charles Kupperman, who is awaiting
a decision on a separate claim pending before the D.C. District Court.
More broadly, the McGahn opinion conforms to the series of prior decisions holding that the House and
Senate have authority to bring—and the courts have authority to adjudicate—legal claims to enforce
committee subpoenas. Despite DOJ’s contentions to the contrary, the McGahn opinion concluded that
“history and past practice plainly support judicial resolution of stalemates between the Legislature and the
Executive branch with respect to the rights that the law establishes and the duties that the law imposes.”
This includes the legal duties and obligations imposed by a congressional subpoena. The court’s decision,
coupled with a series of earlier lower court rulings, recognize that the courts are an available avenue for
the House to combat non-compliance with subpoenas issued to executive branch officials. This may
provide the House with additional leverage in ongoing negotiations and may further incentivize executive
branch compliance.
However, there are also reasons to believe that the McGahn opinion’s practical impact will be somewhat
limited, at least with respect to the current impeachment investigation.
First, while the court’s order states that McGahn must respond to the subpoena and appear for testimony,
it also explained that he retains the ability to assert privilege in response to specific questions. As stated
by the court:
whether or not the law requires the recalcitrant official to release the testimonial information that
the congressional committee requests is a separate question, and one that will depend in large part
on whether the requested information is itself subject to withholding consistent with the law on the
basis of a recognized privilege.
In short, the district court held that McGahn must show up, but he may refuse to answer specific
questions if the answer appropriately implicates an applicable privilege. As has been seen before,
assertions of various executive privileges can significantly restrict the amount of information a committee
ultimately obtains from a witness. This is especially significant with respect to McGahn, given that much
of what the committee appears to be seeking relates to his communications and interactions with the
President. The mere fact that a communication involves the President and his adviser, or the President and
his attorney, does not necessarily bring it within the protective umbrella of executive privilege, but those
confidential communications between the President and his advisers that are made to assist the President

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in his decision-making are, in the words of the Supreme Court, “presumptively privileged.” That
presumption can be overcome by Congress, but persuading the executive branch of the committee’s view
that its interest in obtaining information outweighs the President’s interest in confidentiality in a given
scenario may require another court case.
Moreover, it is unclear whether the district court’s decision in McGahn will itself trigger a change in DOJ
policy. As noted, the D.C. District Court in McGahn rejected the very arguments that were made by the
DOJ more than a decade ago in Miers. Yet the DOJ and the Office of Legal Counsel have maintained that
Miers was wrongly decided and, as a district court opinion, not controlling beyond the facts of the case.
It’s not clear whether a second district court decision reaching the same result will cause the DOJ to alter
its approach to testimony by presidential advisers in future cases. Though as noted above, the McGahan
decision could inform the behavior of former officials who are not bound by DOJ policy. But absent the
President or the Attorney General voluntarily altering executive branch policy or allowing advisers to
testify, an appellate level decision rejecting absolute immunity may very well be necessary for DOJ to
change its position on the adviser immunity question.
Obtaining that appellate level decision will likely proceed on a time line that does not match the pace of
the House impeachment investigation. In fact, one of the chief criticisms of using the courts to enforce
subpoenas has been the time required to obtain a final and enforceable judicial order. In Miers, the district
court issued its decision on July 31, 2008, just over four months after the case was filed. The government
then obtained a temporary stay of the district court opinion, followed by a stay pending appeal to the D.C.
Circuit. The appeal took some eight months (which included an intervening presidential and
congressional election) before a settlement was reached by the parties in which Miers agreed to provide
closed-door testimony. The D.C. Circuit, which never issued a decision on the merits, finally dismissed
the case in October 2009. Although it is difficult to predict judicial scheduling, the McGahn litigation
could proceed along a similar time line. Like Miers, the initial decision issued in McGahn took
approximately four months. Also like Miers, the DOJ has already appealed the decision and obtained a
temporary stay of the district court decision from the D.C. Circuit. Under that order, the D.C. Circuit is
scheduled to hear oral arguments on January 3, 2020–not on the merits of the case, but on the DOJ’s
motion for a more permanent stay pending appeal. If the procedural similarities to Miers continue, and a
stay pending appeal is issued, it may be some time before the D.C. Circuit rules in the case.
The House has argued against any stay and may ask the appellate court to expedite its merits review,
which could speed up the process, but it is worth noting that this request was made and rejected in
conjunction with the issuance of the stay in Miers. The context of that decision, however, was unique and
much different from the current scenario. At the time the D.C. Circuit issued the stay in Miers and denied
the House’s motion to expedite, a congressional and presidential election was less than a month away, and
a new Congress would begin in three months. “[E]ven if expedited,” the D.C. Circuit reasoned, “this
controversy will not be fully and finally resolved by the Judicial Branch” by the start of the new
Congress. Noting that the dispute was “of potentially great significance for the balance of power between
the Legislative and Executive Branches,” the D.C. Circuit found it prudent to permit the “new President
and the new House an opportunity to express their views on the merits of the lawsuit.” Although the D.C.
Circuit will not rule on the DOJ motion for a more permanent stay in McGahn until January 2020 at the
earliest, the D.C. District Court recently took the view that these distinctions between the McGahn and
Miers cases meant that a permanent stay pending appeal was unwarranted (though the D.C. District
Court’s denial of a stay pending appeal has no effect upon the D.C. Circuit’s separate administrative stay
of the lower court’s order, which remains controlling).
In addition to the uncertainty about when the D.C. Circuit may review the merits of the McGahn decision,
it is also worth noting that the D.C. District Court’s opinion in McGahn did not directly address the
House’s impeachment power, including how or whether an impeachment investigation accords the House
greater access to executive branch information than in more common legislative investigations. This is

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despite the fact that the Judiciary Committee argued that the McGahn subpoena was issued partly to
determine “whether to approve articles of impeachment with respect to the President or any other
Administration official.” The court appears to have at times drawn an implicit distinction between the
Judiciary Committee investigation that gave rise to the McGahn subpoena, which principally related to
the Mueller Report, and the current House impeachment investigation. The D.C. District Court noted for
example, that the issuance of the McGahn subpoena “pre-dates the formal impeachment inquiry that the
Speaker of the House announced on September 24, 2019.” Had the court articulated its conception of the
investigative powers that attach to impeachment, that could have given some insight to the political
branches as to whether courts will approach information access disputes between Congress and the
President differently depending on whether they arise in the course of an impeachment investigation or a
more typical legislative or oversight inquiry. That discussion, in turn, may have been relevant to any
assertion of privileges by McGahn or other witnesses called upon to testify in the House’s ongoing
impeachment investigation. For example, the House Judiciary Committee has previously concluded that
executive privilege does not apply in an impeachment investigation. The court did not address that type of
argument in McGahn, but instead found whether specific information “can be withheld from the
committee on the basis of a valid privilege” to be a “very different question” not before the court.
The McGahn opinion may favorably impact Congress’s ability to obtain testimony from presidential
advisers, but perhaps not immediately. Much depends on the speed and outcome of the appeals process.
But even if the district court’s ruling is upheld, judicial rejection of absolute immunity does not guarantee
Congress access to all information in the possession of presidential advisers. Once an adviser appears, the
amount of information a committee is ultimately able to obtain may still hinge on whether privileges are
asserted, and if so, how the committee responds.

Author Information

Todd Garvey

Legislative Attorney

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