Given the importance of what Don McGahn, the former White House counsel for former President Donald Trump, knows about whether Trump’s actions could give rise to criminal liability, one could be forgiven for wondering why we have not heard testimony from him until now, more than two years after special counsel Robert Mueller released his infamous report.
McGahn’s testimony, under these terms, is not cause for celebration.
But for now, all the public has to go on is what we were told hours after McGahn’s closed-door testimony on June 4 by House Judiciary Committee Chair Jerry Nadler: “Mr. McGahn was clearly distressed by President Trump’s refusal to follow his legal advice, again and again, and he shed new light on several troubling events today,” Nadler stated, without providing details. “In one sense, today is a great victory for congressional oversight.”
But McGahn’s testimony, under these terms, is not cause for celebration; Congress should have forced its hand and provided the public with more answers about the scope of Congress’ power to subpoena members of the executive branch.
But on the eve of another federal court hearing in the case regarding the scope of the House Judiciary Committee’s power to seek to enforce a subpoena served on McGahn, the two sides reached a decidedly weak-tea agreement over McGahn’s testimony: It allows him to be questioned in private and only about information that is attributed to him in portions of the Mueller report that are already publicly available. The transcript of the private interview will be made public a week after the testimony.
We need legal and political answers to important questions. But now we won’t get them, at least not anytime soon. Congress capitulated. We’ll get McGahn’s testimony — but it is two years late, on matters already in the public record, and the testimony will initially be given in private. So much for Congress aggressively enforcing its oversight authority.
McGahn played a starring role in Mueller’s report, in which Mueller and his team investigated whether there was a conspiracy between the Trump 2016 campaign and the Russian government and whether Trump committed obstruction of justice.
We’ll get McGahn’s testimony — but it is two years late.
The report detailed 10 instances of potential obstruction of justice but did not come to a conclusion as to whether Trump actually committed that crime. McGahn’s testimony has long been seen as the key to determining whether the former president’s actions could lead to federal criminal charges.
Back in the “before times,” the House Judiciary Committee subpoenaed McGahn shortly after the Mueller report was released. The White House responded by telling then-former White House counsel McGahn not to comply with the subpoena. The White House also claimed McGahn possessed “absolute immunity” from the congressional subpoena. Then-White House counsel Pat Cipollone argued in a letter that the records covered by the subpoena implicated “Executive Branch confidentiality interests and executive privilege.”
The House Judiciary Committee responded by filing a federal suit to force McGahn to comply with the subpoena. The suit wound its way up and down the federal courts. The suit brought up legal questions about whether it was the judiciary’s role to police a dispute between the two political branches, whether Congress needed to pass a law allowing it to file a suit forcing McGahn to testify and whether the president and some members of the executive branch enjoy absolute immunity from a congressional subpoena.
We need to know the scope of congressional authority to subpoena members of the executive branch and, conversely, the scope of the executive’s immunity from those subpoenas. We need to know when federal courts can step in and police these disputes. The agreement on McGahn’s testimony means we are likely to be left with more questions than answers. First, it is not clear the parameters of this agreement will shed significant light on the actions that Trump took that are subject to the Mueller report. Second, and perhaps more importantly, the next time Congress subpoenas a member of the executive branch and that member refuses to comply, we won’t know exactly what to do. The pattern set by this case — fighting for two years and coming to some sort of reconciliation — is not tenable in the long term. The agreement may be a politically savvy move for both sides, but it is not great for the American public. There were two better solutions available to Congress. First, it could have let this case play out in the court system and force a close-to-inevitable Supreme Court decision on these important legal issues. Second, it could pass a law giving Congress the right to sue in court to enforce subpoenas and/or to pass a law shifting the burden of suing to the recipient of the subpoena. So why would the Democratic-controlled Judiciary Committee have agreed to this? Perhaps they were simply done fighting and believed the agreement went far enough. Perhaps because they know at some point a Republican-controlled Judiciary Committee will subpoena members of a Democratic-controlled executive branch and they want those people’s responsibility to testify to be an open question. The agreement may be a politically savvy move for both sides, but it is not great for the American public. The agreement could protect public officials from accountability. Let’s remember, McGahn is being asked to testify about his time as a public servant in the people’s house — the White House. He is not being asked to talk about his time in a private corporation. The public deserves to know the rules of the game when it comes to congressional investigations into actions taken by members of the executive branch. But at least for now, we won’t.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
