WASHINGTON – The Biden administration and House Democrats have reached a tentative deal to allow former White House attorney Donald J. Trump to testify before Congress on the efforts of Mr. Trump to obstruct the investigation into Russia, according to a court filing Tuesday night.
The deal appears likely to avoid a definitive judicial precedent that would draw a clear line in ambiguous areas: the scope and limits of the constitutional power of Congress to compel testimony for its oversight responsibilities, and the constitutional power of a president to keep conversations secret with a White House. lawyer.
An appeals court had been set up to hear arguments on the case next week, but lawyers for the Department of Justice, which has defended McGahn since 2019 against a House subpoena seeking to force his testimony, and the House of Representatives asked the court in a joint letter to abandon this plan as suggested by the agreement.
“The Judiciary Commission and the Executive have reached an agreement in principle on an accommodation and plan to file, as soon as possible, a joint motion asking the court to remove this case from the schedule of the pleadings of May 19, 2021 in order to allow the parties to implement the accommodation, ”the letter said.
What to do with the subpoena case, which President Biden inherited from the Trump administration, has been a rare place of institutional disagreement between Democrats on both branches.
Biden’s White House lawyers have been reluctant to set a precedent that Republicans could one day use to force them to testify on their own internal affairs. House Democrats led by Speaker Nancy Pelosi were determined to move forward after frustration that the Trump administration’s hard-line approach and litigation strategy had expired, preventing any testimony from Mr. McGahn before the presidential election of 2020.
The two sides had been negotiating for several months, causing delays in the appeal court case. The brief was terse and offered no details about the deal, including what limits, if any, there would be – as if Mr McGahn would testify in public and the scope of what lawmakers might ask him to do. disclose.
But the filing also pointed to a potential wild card: “Former President Trump, who is not a party to this case, is not a party to the tentative accommodation deal,” he said.
This absence leaves open the question of whether Mr. Trump could try to intervene to prevent Mr. McGahn from testifying by claiming executive privilege. An attempt to invoke it by Mr. Trump would raise new questions about the extent to which a former president can assert privilege when the outgoing president refuses to do so.
If Mr. Trump tried to intervene, a rare but limited precedent is a 1977 case of Nixon v. General Service Administrator, in which the Supreme Court ruled that Richard M. Nixon could assert claims of executive privilege over official documents from his White House even though he was no longer the president – but that also weighed this claim against the contrary view of Jimmy Carter, the president at the time.
That dispute, however, centered on control of Nixon-era White House documents, not a subpoena for the testimony of a former White House lawyer.
This dispute centers on the desire of the House Judiciary Committee to question Mr. McGahn on issues related to his role as a key witness in Special Advocate Robert S. Mueller III’s report on Mr. Trump to obstruct the investigation into Russia. .
After the Justice Department released most of the report, Democrats on the Judiciary Committee subpoenaed Mr. McGahn to testify. After refusing to appear, on Mr. Trump’s instructions, the committee took legal action.
The case saw several rounds of convoluted legal battles over constitutional issues that lacked definitive precedents because previous disputes had typically been resolved through a negotiated compromise, thus avoiding the need for a court ruling.
But the lawsuit over McGahn’s subpoena is part of an unprecedented number of cases between the two branches in court that took place after Democrats took the House in the 2018 midterm election and Mr. Trump has vowed to block “all” subpoenas.
First, the Justice Department under Mr. Trump’s leadership had argued that Mr. McGahn was “absolutely immune” from any forced appearance before Congress to testify about his professional duties. Last year, the entire District of Columbia circuit rejected this theory.
The Justice Department then continued to fight the subpoena on other legal grounds, arguing that Congress had no “cause of action” that allowed it to sue the executive branch. (The executive branch took this position under administrations from both sides, and the Biden administration had indicated that it was ready to continue discussing it.)
The apparent resolution of McGahn’s subpoena case – unless Mr. Trump disrupts it – is similar to a dispute in 2009, when President Barack Obama took office and inherited a House trial following a subpoena by former attorney for President George W. Bush to testify at the White House. Harriet Miers spoke about the layoffs of American lawyers.
The Obama administration, a House lawyer and a legal representative for Mr. Bush worked out a deal under which Democrats were able to confidentially interview Ms. Miers on the subject, with limitations. This accommodation raised the case, so the District of Columbia Circuit never made a binding decision, leaving the legal issues raised unresolved.