The House Judiciary Committee Just Escalated Its Backdoor Impeachment Efforts

A name plate for former White House Counsel Don McGahn sits on the witness table prior to a House Judiciary Committee hearing in which McGahn was subpoenaed to testify May 21, 2019 on Capitol Hill in Washington, DC.
A name plate for former White House Counsel Don McGahn sits on the witness table prior to a House Judiciary Committee hearing in which McGahn was subpoenaed to testify May 21, 2019 on Capitol Hill in Washington, DC. Alex Wong/Getty Images

On Wednesday, the House Judiciary Committee filed a lawsuit in federal court to force former White House Counsel Donald F.
McGahn to testify about potential episodes of obstruction of justice by President Donald Trump that were outlined in the Mueller report.

McGahn defied a subpoena in May at the request of White House lawyers, who claimed he was “absolutely immune” to orders to testify before Congress. In the complaint filed in the district court for the District of Columbia, the committee insisted that McGahn’s testimony was essential to move forward with any potential impeachment on obstruction of justice grounds.

“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,” the committee argued.

It was the second time in two weeks that the committee had sought to pry loose information from the Mueller investigation by telling a court that it was considering whether to recommend articles of impeachment against the president. Last month, the committee asked Judge Beryl A. Howell to release full grand jury materials from the Mueller investigation so that it could “consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity—approval of articles of impeachment.” The committee sought to place Wednesday’s litigation in front of Howell as well.

The repeated references to impeachment—118 times in the two legal filings combined—marks an effort by the committee to advance the impeachment process without actually having opened a formal inquiry. The lawsuit comes two days after the committee’s chairman, Jerry Nadler, told MSNBC that his committee could report articles of impeachment to the full House of representatives by the late Fall. Speaker of the House, Nancy Pelosi, has remained staunchly opposed to opening a formal inquiry, instead insisting that the battleground lies in the courts. Despite leadership’s hesitation, a majority of House Democrats now support moving forward with impeachment after Special Counsel Robert Mueller’s testimony in July.

The court route has always seemed like a backdoor way of moving impeachment forward without a formal vote. According to Politico, Republicans have argued that a formal vote to open an impeachment inquiry is necessary. In an amicus brief in a separate case on Tuesday, the Department of Justice sought to argue that the House Oversight Committee could not subpoena an accounting firm for Trump’s financial documents on the basis of impeachment because it did not have formal jurisdiction in the matter.

If the DOJ attempts to argue in court, though, that the judiciary committee cannot enforce the subpoena on McGahn without a formal impeachment inquiry, that argument is likely to fall flat. As the judiciary committee noted in Wednesday’s filing, the House’s own rules give it jurisdiction over questions of impeachment.

“First of all, the House rules are being complied with vis a vis the issuance of subpoenas, and second of all the judiciary committee is the committee with jurisdiction over impeachment, and third of all the House has jurisdiction over impeachment,” said Frank Bowman, a professor at the University of Missouri School of Law and author of a book about impeachment in the age of Trump. “It’s really impossible to argue with much of a straight face that somehow or another the courts can impose an otherwise nonexistent procedural hurdle on the House of Representatives’ power to issue subpoenas.”

McGahn’s claim that he isn’t allowed to testify or hand over documents to the committee about potential obstruction of justice by the president has so far rested on the White House’s legal claim that former and current White House aides have “absolute immunity” from testifying before Congress.

The question of immunity for presidential aides has yet to be settled in court, although presidents from both parties—including Barack Obama—have sought to claim it. As Jonathan Shaub wrote for Lawfare in May, precedent is not necessarily on the president’s side even if his predecessors’ expansive claims of executive authority are:

The fact that this position has been asserted by administrations of both parties does not, of course, make it valid. Indeed, the only court to have addressed a claim of presidential adviser immunity has resoundingly rejected both the claimed absolute immunity and a qualified immunity.

As the New York Times notes, a federal court in 2008 rejected efforts by George W. Bush’s former White House counsel, Harriet Miers, to defy a subpoena using a claim of absolute immunity. The subpoena expired at the end of the Congressional term, though, and the case was never appealed, which means that it is not a controlling precedent—in 2014 Obama’s OLC argued that the judge in the case had been wrong and that his advisors retained immunity.

Any such immunity for presidential advisors would essentially be an extension of executive privilege. As Bowman pointed out, in U.S. v. Nixon the Supreme Court upheld a grand jury subpoena of tapes of the president despite a claim of executive privilege, noting that this privilege was not absolute. By extension, immunity for presidential advisors should not be absolute either.

“I think once the House says ‘we’re considering impeaching the president for his misbehavior,’ the notion that somehow there’s complete immunity is just constitutional rubbish,” Bowman notes.

The Department of Justice has stated in a legal memo that the president cannot be indicted for crimes while in office; he must be impeached first. To say that the president is immune from both a criminal inquiry and an impeachment investigation would basically place him above the law.

“To take those two positions together [would] essentially amount to a declaration that the president is a king,” Bowman said. “That’s preposterous and that’s by no means what the Framers intended.”

The question of whether or not the courts will step in to enforce Congress’ subpoena power, however, will likely be stickier. In the past, the House has upheld its subpoenas on its own with inherent contempt citations, which could be enforced by a vote to order the House’s sergeant-at-arms to arrest and jail recalcitrant witnesses. That power hasn’t been exercised in nearly 85 years, though, and it is doubtful that Pelosi will want to bring it back. Earlier this year, Democratic committee leaders suggested they could seek to enforce inherent contempt through Congressional fines, a practice that the Congressional Research Service indicated might be constitutionally plausible.

Congressional leaders have not yet decided to pursue any of those routes, though, instead hoping that the courts will enforce Congress’ powers through the issuance of injunctive action backed by the courts’ own civil contempt authority. That could be a hard sell.

“The main problem is less getting the court to assert jurisdiction,” Bowman said. “This kind of litigation [can be] unusually, obscenely slow.”

As the judiciary committee noted in Wednesday’s filing, there is a time limit:

The House, and with it the Judiciary Committee’s investigation, expires on January 3, 2021. The delay caused by McGahn’s refusal to testify thus severely impedes the Judiciary Committee’s ability to do its time-sensitive work. Accordingly, to redress these injuries, the Judiciary Committee asks this Court to order McGahn to comply with the subpoena for his testimony and appear before the Judiciary Committee forthwith.

We’ll soon find out how time-sensitive the courts view it.