On Aug. 7, the House Judiciary Committee filed a lawsuit asking a federal court in D.C. to force Don McGahn, former White House counsel, to comply with the committee’s subpoena for his testimony. The suit is ostensibly about the executive branch’s claim that close presidential advisers such as McGahn are absolutely immune from compelled congressional testimony, a doctrine I have described on Lawfare previously. The White House has relied on the same doctrine to direct Hope Hicks, former communications director, not to answer the committee’s questions in a closed-door interview and to direct senior adviser Kellyanne Conway not to appear at a congressional hearing about an official conclusion that she had violated the Hatch Act numerous times in her public appearances.
The immunity doctrine is, of course, the subject of substantial controversy. Both the constitutional theory and the historical pedigree of the doctrine, as set out in recent opinions by the Office of Legal Counsel (OLC) in the Obama and Trump administrations, have been called into question. And only one court has addressed the matter. The U.S. District Court for the District of Columbia considered—and rejected—President George W. Bush’s claim of immunity for his former counsel Harriet Miers, concluding it was “virtually foreclosed” by the Supreme Court. That case settled, however, before the appellate court could issue an opinion on the merits of the immunity doctrine. The OLC in both the Obama and Trump administrations has rejected the reasoning of the district court’s opinion and continued to assert absolute immunity for senior presidential advisers.
An opinion from the U.S. Court of Appeals for the D.C. Circuit or Supreme Court on the immunity doctrine, unlike the previous district court opinion, would establish new, precedential constitutional law and could radically alter the oversight landscape in future administrations. But for this Congress, the significance of any resolution of the immunity issue, even by the Supreme Court, would be mostly political rather than legal—even to the committee’s ongoing quasi-impeachment inquiry.
Rather, the potential legal benefit of the McGahn litigation for both this Congress and future Congresses derives from the second, largely implicit, issue in the case: whether the president has the authority to direct McGahn, a private individual, not to comply with the committee’s subpoena. That issue will be present even if senior presidential advisers such as McGahn do enjoy some type of constitutional immunity. The committee’s complaint includes a few sentences acknowledging—and contesting—the president’s claim to this authority. But that issue is not its focus. It probably should be.
The committee’s lawsuit argues that “McGahn is the Judiciary Committee’s most important fact witness in its consideration of whether to recommend articles of impeachment” and that “[e]ach day that McGahn refuses to testify, the Judiciary Committee is deprived of its ability to carry out the significant Article I task of determining whether to recommend the President be impeached and potentially removed from office.” After filing the suit, the committee chair, Rep. Jerry Nadler, ambitiously expressed hope that the committee would have a decision “by the end of October” and could potentially be able to “report articles of impeachment ... late in the fall, in the latter part of the year.”
Even if the committee achieves total victory on the question of McGahn’s immunity in a matter of months, however, that “victory” would have almost zero chance of justifying Nadler’s optimism. McGahn might appear at a congressional hearing, but, for the reasons explained below, he would not provide any new information or answer any of the questions the Democrats want answered. He would instead almost certainly rely on executive privilege, rather than immunity, to continue to decline to answer questions. At the same time, if the committee prevailed on the alternative ground that the president lacked authority to direct McGahn to ignore the subpoena, that ruling could affect both McGahn’s testimony and a huge swath of the various oversight disputes between the House and the Trump administration. Every oversight action pending in the House that involves a former official—including, for example, the Judiciary Committee’s past subpoenas to Hicks and Annie Donaldson, former deputy counsel, as well as its recent subpoena to former White House official Rick Dearborn—could potentially be reset to a new default. Those individuals could no longer claim they were subject to conflicting commands from two co-equal branches. Instead, they would have to take personal responsibility for their refusal to comply with a congressional subpoena.
The Immunity Question Is Fascinating—But Likely Meaningless for the Current Inquiry
Few appreciate, I think, how complex and interesting the immunity issue is. The doctrine has been (1) wholeheartedly adopted by presidential administrations of both parties; (2) called “spurious” by Congress and rejected by congressional representatives from both parties; (3) addressed by only a single district court, which resoundingly dismissed it in a 93-page opinion as “virtually foreclosed by the Supreme Court”; and (4) practiced as a historical matter in some fashion for a number of decades. All of this makes for a pretty interesting case.
As interesting as it is, I will not detour here in a full discussion of the merits of the immunity position or its historical pedigree. But I think it’s sufficient to say that the OLC’s position on McGahn’s immunity—temporarily putting aside the fact that McGahn is a former official—has more substantial historical support than most commentators acknowledge. Both the head of the OLC during the Clinton administration and the former White House counsel to President Obama have acknowledged as much. The trend to discount it as a matter of practice—regardless of the merits of the constitutional theory—is driven, perhaps, by a couple of mischaracterizations in the district court opinion in the Miers litigation and the fact that relatively few of the historical executive branch documents on immunity have been made public. Indeed, the McGahn opinion cites at least eight internal executive branch precedents other than the foundational 1971 Rehnquist memo in support of the immunity position. To my knowledge, only one or two of those have been released publicly.
The immunity doctrine has certainly developed and changed as the contours of congressional oversight have evolved and become more aggressive. And recent assertions, particularly the OLC opinion concluding that Conway is immune from testimony about her public appearances implicating the Hatch Act, have pushed the doctrine beyond its historical scope. But one should hesitate before dismissing that history out of hand without a full understanding of the materials and incidents that support it.
But let’s assume for present purposes that the courts follow Judge John Bates’s opinion in the Miers litigation and reject McGahn’s immunity on the merits, because they either reject the immunity doctrine entirely or reject its application to a former official such as McGahn. And imagine it happens relatively quickly, a possibility I explain in the final section below. The litigation is over, it is still early in 2020, with the impeachment inquiry in full swing. The House has won. McGahn must appear and testify.
That would seem to be enormously consequential: McGahn would appear in front of the committee, embedded in a cloud of frenzied reporters, and every screen in the world would be streaming his testimony and the breathless commentary accompanying it. The committee could probe the details in the Mueller report, ask McGahn about his interactions with the president, and, perhaps, seek to crown its impeachment inquiry with the defining moment it desperately wants.
But this is unlikely. Victory on the immunity question in the McGahn litigation would be much less consequential—and, for this Congress, probably without consequence at all. To understand why, look at the “victory” the committee achieved in Miers. Bates’s opinion on immunity concludes by summarizing: “Ms. Miers is not excused from compliance with the Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be made. Instead, she must appear before the Committee to provide testimony, and invoke executive privilege where appropriate” (emphasis added).
In the McGahn litigation, a victory for the Judiciary Committee on the immunity issue would result in a similar directive. McGahn would have to appear in response to the committee’s subpoena. But he would still have the option of declining to answer questions based on executive privilege. In other words, the principal issue in the McGahn litigation—his immunity—solely concerns whether he must appear and has nothing to do with what questions he has to answer.
McGahn would undoubtedly decline to answer based on executive privilege. Trump has already made a “protective” assertion of executive privilege over the information relating to the Mueller report that would be the subject of McGahn’s testimony, and McGahn would undoubtedly ask the White House prior to his testimony what questions they want him to refuse to answer. Even Mueller apparently requested guidance from the Department of Justice about his testimony, and former officials such as Sally Yates and Jim Comey—both fired by Trump—have also asked for guidance on privilege or given the president the opportunity to assert it over their voluntary testimony. McGahn would almost assuredly continue to abide by whatever guidance he received from the White House and refuse to answer questions if Trump directed him to do so.
If the committee’s litigation is successful, McGahn’s compelled appearance would look similar to the voluntary interview given by Hicks and the written answers provided by Donaldson. Hicks declined to answer 155 questions based on the White House’s direction, and Donaldson declined to answer more than 200 questions. McGahn’s testimony would likely be even more unforthcoming, because the majority—if not all—of the questions would relate to his communications with the president, the core of executive privilege recognized in United States v. Nixon.
The immediate response is, of course, that executive privilege has been waived for the subject of McGahn’s testimony because (1) he already provided testimony about it to the special counsel’s office and (2) the Department of Justice’s public release of the Mueller report waived privilege over the incidents the report describes. Indeed, the committee’s complaint relies on these facts to argue that even if immunity exists in some circumstances, it has been waived here by the release of the report. But as I explained on Lawfare when the committee first subpoenaed McGahn, the executive branch has a strong case based on judicial precedent and historical practice that executive privilege has not been waived entirely over McGahn’s testimony.
Everyone acknowledges that the precise information in the Mueller report is no longer subject to a privilege claim; executive privilege is simply not applicable to public information, because the entire premise of the privilege is that the release of the information would harm the public interest. Beyond the actual words of the report, however, the existence and extent of waiver is not entirely clear and will be hotly disputed by the two branches. The administration’s letter to Mueller prior to his testimony makes it clear that it takes the position that no privilege has been waived outside of the precise information in the public report. Trump has also not refrained from asserting privilege broadly. The committee, of course, disagrees that any claim of privilege is available here. Whatever the correct view of waiver, McGahn can, and will, refuse to answer questions based on the executive branch view. That disagreement means the dispute would continue.
Thus, even if the immunity question could be resolved in a matter of months, the result will be another privilege dispute between the committee and the administration. That fact is all that is necessary to render any decision on McGahn’s immunity meaningless as far as providing the committee new information. It would require McGahn to appear and at least recite the words from the report, which could serve to inform the unaware public or memorialize those incidents in the congressional record. But, in terms of seeking additional information about or context for the incidents described in the report, the committee would be in the same position as it is now with respect to the administration’s other claims of executive privilege, without a means to enforce its demands except through the courts. The only way the committee could prevail against McGahn both on immunity and on executive privilege would involve successfully suing McGahn twice—and there’s no realistic possibility of that before this Congress ends. But there is another means of resolution that is far more intriguing and could be immediately consequential not just for the McGahn dispute but for other oversight disputes as well.
The Other Way to Resolve the McGahn Litigation—And Its Potential Far-Reaching Consequences
The final sentence of the introduction to the OLC opinion on McGahn states its principal conclusion: “Mr. McGahn is not legally required to appear and testify before the Committee.” But, as I explored at length on Lawfare previously, the opinion makes an additional claim near its conclusion for which it provides little support: “Because Congress may not constitutionally compel Mr. McGahn to testify about his official duties, the President may lawfully direct him not to appear in response to the House Judiciary Committee’s subpoena” (emphasis added). The opinion never identifies the source of that affirmative presidential authority. Nor does it offer any constitutional analysis to support that conclusion. Instead, the OLC appears to regard the fact of McGahn’s immunity alone as sufficient to justify the president’s authority to issue a directive to him, even though McGahn is a private citizen and no longer an executive branch official or employee subject to the president’s command.
Although not its primary focus, the committee’s lawsuit appears to contest this conclusion—which could offer an alternative means of resolving the dispute. The complaint notes that “the President purported to direct McGahn not to appear” in response to the subpoena and that “McGahn, a private citizen, has defied the Judiciary Committee’s subpoena based on a purported order from President Trump” (emphasis added). The complaint also argues that “the President has cited no legal authority for his purported ability to direct a private citizen to disobey a lawfully issued Congressional subpoena, other than an OLC opinion, which is not law and has no binding effect outside the Executive Branch.”
McGahn, for his part, has largely removed his own agency from the dispute so far. His lawyer claimed he was “obligated” to follow the president’s direction when he initially refused to appear. After the lawsuit was filed, his attorney reiterated that McGahn was “faced with competing demands from coequal branches of government” and would “follow his former client’s instruction, absent a contrary decision from the federal judiciary.” It remains to be seen what McGahn’s defense will be in the litigation, but presumably he will continue to rely on the president’s direction. But if the president in fact lacks authority to issue a directive to a private individual, McGahn cannot simply rely on the president’s direction to countermand the committee’s subpoena. In other words, McGahn’s current defense is “the president is making me do it.” But if the president did not have any authority to issue that directive, that defense is no defense at all.
McGahn’s reasoning is not new. Nor is it limited to the context of immunity. After Bush asserted executive privilege over materials related to the 2006 firing of U.S. attorneys and claimed his former counsel Miers was immune, Miers’s counsel stated that she was “subject to conflicting commands, with Congress demanding the production of information that the Counsel to the President has informed her she is prohibited from disclosing” and that she “ha[d] no choice other than to comply with direction given her by Counsel to the President” (emphasis added). As part of the same dispute, former aide Sara Taylor’s counsel asserted, in response to a congressional subpoena, that Taylor could not comply because she “face[d] two untenable choices” given the president’s direction.
The question is whether McGahn and other former officials are different, as a legal matter, from other private entities who possess sensitive or potentially privileged executive branch information. The issue of control over private individuals possessing executive branch information arose several times during the Obama administration, but the disputes never escalated nor was executive privilege ever claimed. In 2013, the House Oversight Committee sent a subpoena to a private corporation that had contracted with the Department of Health and Human Services to analyze the vulnerabilities of healthcare.gov, seeking documents that included “software code and other technical information” that was “highly sensitive.” The information was ultimately turned over by the company because the administration did not assert any authority to direct the company to refuse to comply with the subpoena. In 2015. the Treasury Department initially instructed the Federal Reserve Bank of New York (FRBNY), a hybrid public-private government corporation, not to comply with a subpoena from the House Financial Services Committee about the administration’s contingency plans related to the debt ceiling crisis. But FRBNY ultimately complied given the lack of a privilege claim or a court order prohibiting compliance. And, even though Treasury sought to prevent it, a former IRS official was eventually deposed by the House Ways and Means and Financial committees about the administration’s decision to fund the Affordable Care Act’s cost-sharing reduction payments using an existing appropriation. The former official had contacted Treasury to see if privilege would be asserted, but because he “ha[d] no privilege assertion from the executive branch,” he attended the deposition and agreed to “answer any of [the committee’s] questions without limitation.”
In the current administration, both types of disputes have escalated—subpoenas to private parties who were never part of the executive branch and subpoenas to former officials. Most prominently, the House Oversight and Government Reform Committee sent subpoenas to Trump’s accounting firm, Mazars, and his financial institutions seeking his past financial and tax information. Trump in his private capacity sued those institutions seeking to enjoin them from turning over the information because the institutions indicated they regarded compliance as mandatory without a contrary court order. After two district courts sided with the congressional committee, the two cases are now before two different federal circuit courts, both on an expedited time frame.
But the procedure for private individuals who are former executive branch officials is different. Hicks and Donaldson are now private individuals but declined to answer questions at the president’s direction. No court order was required to prevent their compliance with the congressional subpoenas because they understood themselves to be bound by the president’s direction to adhere to his claims of privilege and immunity.
Most recently, the House Judiciary Committee issued subpoenas to Corey Lewandowski and Dearborn, both private individuals. Lewandowski never had a formal position in the executive branch and would appear to be situated more similarly to Mazars and the private financial institutions. Whether the president will purport to have authority to direct Lewandowski to refuse to provide information remains to be seen, as does his counsel’s determination of whether such a direction would be sufficient to allow him to refuse to comply. Dearborn, however, was a former White House official and would thus appear to fall in the same category as Hicks and Donaldson. Other officials who have been the subject of oversight disputes and privilege claims—such as former acting head of the Justice Department’s Civil Rights Division John Gore—are now leaving or will leave the executive branch, raising further questions about the president’s authority to direct them not to testify.
The McGahn litigation has the potential to end the distinction between private individuals who are former officials versus other private individuals. If the McGahn litigation were resolved in a manner that squarely rejects the ability of the president to direct former officials, the entire oversight script could potentially be flipped—and the disputes over the testimony of McGahn, Hicks, Donaldson and other former officials would look more like the Mazars and healthcare.gov disputes and less like privilege and immunity disputes involving current officials. That would be true whether the claim was executive privilege or immunity.
If the president has no authority to direct a former official, then those former officials would have to comply with the subpoena unless another source of authority counteracted its compulsory process. And the only potential source of such authority—once the president is eliminated—is a court order. As Trump did in his private capacity in the Mazars litigation, the Department of Justice would need to sue McGahn, seeking an injunction to prevent him from testifying. Indeed, when the Miers dispute was unfolding, Professor Marty Lederman made this very claim, arguing that the proper procedural approach for a former official is to acknowledge his or her obligation to comply with the subpoena and put the burden on the executive branch to obtain a court order prohibiting that compliance.
The grounds for such a suit are not entirely clear. In the late 1970s, the Department of Justice sued AT&T after the company indicated it would comply with a congressional subpoena for information related to wiretapping. The complaint essentially argued that AT&T could not disclose the information because of a contractual confidentiality provision. But the D.C. Circuit recognized in that case that the executive branch has certain confidentiality interests that would be undermined if Congress could seek confidential information from third parties and bypass the executive branch. Without a contract as the basis for such an action against McGahn, the executive branch would essentially be arguing that the former official, as an agent, had no authority to disclose the information without approval from the executive branch, his former principal. And it would likely assert that, as a constitutional matter, the president had the right to prevent the release of information that implicates his authority to assert executive privilege. In other words, the suit would allege that the president, not McGahn, has the constitutional right to determine what information relating to McGahn’s duties in the White House goes to Congress and would seek to enjoin McGahn from undermining that authority by disclosing the information in response to the subpoena.
As former congressional lawyer and oversight expert Michael Stern has laid out, litigation that takes place in that posture—with the executive branch as the plaintiff seeking to stop imminent disclosure of information—puts the onus on the executive to move quickly. By contrast, in the litigation proceeding under the current paradigm, where the committee must sue to enforce its subpoena against the private individual, neither the executive branch nor the courts have been in a hurry. As a result, none of the litigation has ever been fully resolved. Reversing the burden and the need for expedited resolution would potentially alter that.
But such a reversal would occur only if a precedential opinion were issued to which McGahn—and other former officials and private entities—had to adhere, holding that the president had no authority to direct their response to a congressional subpoena. That opinion would establish that a purported presidential direction to order a former official to refuse to comply is no defense to the compulsory process of a congressional subpoena, regardless of the merits of any privilege or immunity claim. Such an opinion would be enormously consequential. Currently, McGahn’s attorney—William Burck—can advise his client that he can refuse to appear based on the president’s direction largely because there is no contrary law and because past practice supports that reliance, namely Miers. If that defense were rejected, McGahn’s only other choice would be to (1) comply or (2) assert immunity himself, likely after the president had asserted it and the OLC had issued an opinion supporting it.
If you are familiar with the executive branch’s practice of not prosecuting individuals held in contempt, you might suggest this all makes no difference. Even if the D.C. Circuit or Supreme Court rejected the president’s authority to issue a directive to McGahn, the former White House counsel could assert the immunity himself in response to the subpoena, supported by a presidential assertion and OLC opinion. The president would simply “request” that McGahn assert immunity and not comply rather than direct him to do so. And McGahn and other former officials, unlike Mazars, would likely comply with that request—perhaps out of a sense of obligation to their former employer or a sincere desire to protect executive branch confidentiality interests from congressional committees looking primarily for political gain.
If McGahn did refuse to comply based on the president’s request, the executive branch, consistent with past practice, would likely refuse to prosecute him even if Congress referred him for criminal contempt under 2 U.S.C. § 192 and § 194. Congress would thus still have no way to force his compliance other than judicial enforcement, the same posture that exists currently. The only difference is that it would be McGahn, not the executive branch, taking responsibility for the assertion. His actions would continue to be supported by the Justice Department because his interests would be aligned with the executive branch’s and his immunity claim would ostensibly further those interests.
That is certainly a possibility—though it would require a new OLC opinion expanding on existing precedent. But, for two reasons, I do not think that would undermine the potential consequence of a resolution rejecting the presidential authority to control former officials. First, it would eliminate the defense that former officials have consistently followed and behind which they have hidden. Former officials would not be able to claim they are subject to “two competing commands.” Instead, they could only rely on their obligations to honor the president’s request. “I feel obligated to respect the president’s assertion of privilege” is less convincing than “the president has directed me to refuse to comply” as an argument for why an individual can ignore a compulsory congressional subpoena. It remains to be seen whether a private attorney for former officials such as McGahn, Hicks and Donaldson would advise them that their sense of obligation is sufficient to countermand a congressional subpoena. Private parties, even those such as AT&T that were contractually obligated to maintain confidentiality, have historically not thought it sufficient.
Second, much of the executive branch doctrine of control derives from the Supreme Court’s decision in United States ex rel. Touhy v. Ragen. I discussed the executive branch’s recent overly broad reading of Touhy at length in my analysis of the May 23 OLC opinion concluding executive branch officials could direct an inferior official to refuse to comply with congressional deposition subpoenas. The crux of Touhy is that an executive branch official may not be held in contempt for following a valid direction from the attorney general. Touhy only applies, however, when the order is “valid.” A precedential court decision rejecting the president’s authority to issue such an order would eliminate the defense recognized in Touhy for officials.
Also, much of the executive branch precedent for refusing to apply the criminal contempt statute to executive branch officials is premised on an underlying assumption that the individual is a subordinate executive branch official following a presidential direction. The foundational OLC opinion on refusing to prosecute officials for contempt of Congress relies heavily on the president’s direction. It asserts, for example, that the U.S. attorney “is not required to refer a contempt citation . . . to a grand jury or otherwise to prosecute [the] Executive Branch official who is carrying out the President’s instruction” and that contempt may not be used “to punish the official who carried out the President’s constitutionally authorized commands” (emphasis added). The opinion also repeatedly distinguishes between the president’s “subordinates” and “private persons.” It states, for example, that “the President’s assertion of executive privilege is far different from a private person’s individual assertion of privilege” and that the Constitution’s separation of powers “precludes Congress’s use against the Executive of coercive measures that might be permissible with respect to private citizens” (emphasis added).
In short, the president’s authority to issue directives to prevent the disclosure of information to Congress has historically relied on his general authority to direct subordinate executive branch officials. Over time, that authority was severed from his general supervisory power over the executive branch and transformed into an authority to control information and those who possess it, even if they are private individuals. The validity of that evolution—and expansion—is directly at issue in the McGahn litigation.
The executive branch would likely assert that former officials are differently situated than private individuals who were never part of the executive branch. And there is language in past OLC opinions that could support the refusal to prosecute a former official who is “carry[ing] out” a presidential claim of privilege, even if there is no “command” to do so. But private parties—including former officials—are under no obligation to follow that position. They would face the possibility of a contempt prosecution—if not by the current then perhaps by the next administration. After the 2016 election, for example, House representatives asked the Department of Justice to reconsider the Obama administration’s decision not to prosecute IRS official Lois Lerner for contempt. Former officials could raise privilege or immunity claims as a defense in such a prosecution. But they would no longer be able to raise the Touhy defense that they had no choice in the matter. Instead, they would be faced with a court decision that definitively says the president has no authority to direct them. The choice would be unavoidably theirs.
And that could have enormous consequences. The executive branch’s current doctrine of executive privilege relies on an affirmative presidential authority to control both the dissemination of privileged information and, as a corollary, the individuals who possess it—even after they are no longer employees or officials subject to the direction of the president or other executive branch officials. The McGahn litigation could potentially deal that doctrine a fatal blow with respect to former officials. If the former official did not feel comfortable asserting the administration’s privilege or immunity position or was unwilling to subject herself to a finding of contempt without an available Touhy defense—a realistic possibility—the executive branch would have to try and obtain a court order to prevent the disclosure of information, a difficult burden. And it would have to seek such an order quickly. The litigation would progress much more rapidly, with the burden on the executive branch to prevent disclosure rather than the burden on the committee to force it.
As described below, the McGahn litigation could potentially be resolved quickly. But whether the resolution affects the current oversight inquiries or not depends on how the court resolves it.
The McGahn Litigation Could Be Resolved Quickly
I, and others, have been skeptical that the courts offer a realistic way to enforce congressional oversight demands, given the time such litigation takes. In the realm of litigation over congressional oversight, however, the McGahn litigation represents an ideal candidate for expedition. McGahn’s defense is an unqualified one, an absolute immunity from compelled congressional testimony grounded in the Constitution’s separation of powers that is not subject to balancing and takes no account of Congress’s countervailing interests or constitutional authority. That absolute immunity is distinct from a presidential claim of qualified executive privilege. And unlike most litigation over a privilege dispute—such as the litigation over Obama’s claim of executive privilege in the “Fast and Furious” matter—the McGahn litigation will not require the court to decide the scope of contested privileges, review the particular documents and information at issue, or balance the executive branch’s need for confidentiality against congressional interests. Nor will the McGahn litigation likely require discovery. It presents a pure legal question: Is a senior adviser to the president immune from compelled congressional testimony? In each successive court, resolution will likely require only briefing and an argument and then whatever time it takes the court to issue its opinion.
What’s more, the existing precedent in the D.C. district court is favorable to the Judiciary Committee. In 2008, Judge Bates (who had been appointed by Bush) issued a comprehensive 93-page opinion rejecting Bush’s immunity claim for Miers. And two subsequent district court judges have relied on that reasoning, in part, to conclude that a committee or house of Congress has “standing” to bring a lawsuit—in other words, that the committee or House has a legal injury sufficient to allow it to invoke the jurisdiction of the federal courts. These past district court decisions will not “bind” the judge in the McGahn litigation; she is free to decide the issue how she chooses. But they will make it much easier for her to rule quickly on both the threshold arguments about standing and the merits of McGahn’s immunity.
In the Miers dispute, the committee filed suit on March 10, 2008, and Judge Bates issued his opinion on July 31. The executive branch appealed and sought a stay of the district court opinion. On Sept. 4, the D.C. Circuit issued an order asking the parties to file supplemental briefs within a matter of days addressing (1) whether the appellate court had jurisdiction, (2) how the upcoming November election would affect the litigation, and (3) what schedule the court should set for briefing on the merits of the immunity claim. The court held argument on those preliminary matters on Sept. 16, and then it issued an opinion on Oct. 6, staying the district court’s order that Miers must appear and declining to expedite the case. It reasoned that the dispute was “of potentially great significance for the balance of power between the Legislative and Executive branches” and, given the upcoming election, a stay would ensure the case remained a live dispute and “permit the new President and the new House an opportunity to express their views on the merits of the lawsuit.”
The Miers lawsuit was filed in an election year and almost a full year later than the McGahn suit in terms of the election cycle. The D.C. Circuit’s decision not to expedite the appeal was grounded in large part on the committee’s “concession” at oral argument that the entire case—including review by the Supreme Court—could not be resolved before the next president and Congress took office. That is not true of the McGahn litigation.
The McGahn litigation could proceed something like the schedule described below (although any schedule would depend on the judges, of course) and reach a conclusion even if the government were granted stays of any adverse ruling while appeals were pending. First, the district court could realistically decide the immunity question in a month or two; it took Judge Bates roughly four months in Miers, but he did not have an existing 93-page opinion on which to rely. In the Mazars litigation, the district court judge took less than a month to resolve the purely legal question, issuing a 41-page opinion on May 20 after the complaint was filed on April 22. On appeal, the D.C. Circuit agreed to expedite the Mazars case, giving each side about 20 days to submit briefs and scheduling oral argument for July 12, less than two months after the district court’s decision. And the suit involving the financial institutions has followed a similarly expedited schedule. Assuming the district court issues its opinion in the McGahn litigation by mid-September, the D.C. Circuit could hold arguments at the beginning of November and issue an opinion shortly thereafter. That would, barely, allow time for a petition to the Supreme Court asking it to hear the case in the spring of 2020, resulting in an opinion by June 2020, at the end of its term.
There are, of course, a lot of contingencies and hypotheticals embedded in that timeline, and a petition asking the full D.C. Circuit sitting en banc to review the case could potentially delay a petition to the Supreme Court enough to push argument into October 2021 without a guarantee of its resolution until June 2022. Moreover, although the House appears to have a good case for urgency right now, that may change as the calendar moves closer to the 2020 election. By then, appellate courts may be less likely to feel urgency to resolve the constitutional questions presented by the litigation—and more inclined, as the D.C. Circuit was in the Miers litigation, to wait and see what happens with the election first and whether the case becomes moot.
The important point, though, is that the McGahn litigation—unlike the Miers litigation—could potentially be resolved during this session of Congress. And a number of things could bring resolution even more quickly. The appellate courts could refuse to stay an adverse district court decision, the Supreme Court could decline to review the case, or the Supreme Court could alter the traditional appellate process to ensure rapid resolution, as it did in the litigation over the Watergate tapes. President Nixon sued to block the grand jury subpoena for the tapes on May 1, 1974, and, after an adverse decision, appealed to the D.C. Circuit. But the special prosecutor asked the Supreme Court to take the unusual step of hearing the case immediately and bypassing the court of appeals, a process called “certiorari before judgment.” The dispute was finally resolved by the Supreme Court on July 24, 1974, 16 days after the justices heard oral arguments and less than three months after the case began.
The Supreme Court recently used that same procedure to decide the case challenging the attempted inclusion of the citizenship question on the 2020 census very quickly at the urging of the Trump administration. The committee could pursue a similar strategy in the McGahn litigation, even if the Supreme Court would be unlikely to take that step.
There is thus a realistic possibility that the McGahn litigation could be resolved quickly, in time for its resolution to influence the current oversight disputes between the House and the Trump administration. If the resolution addresses only the issue of McGahn’s immunity, however, then it will not likely have any lasting influence on the current oversight disputes, no matter which side the courts ultimately favor. Any effect would be limited to oversight disputes between the next Congress and the winner of the 2020 presidential election and beyond. And it would be limited to the question of immunity for senior presidential advisers, a narrow doctrine that arises less frequently than executive privilege more generally.
If the court determines, however, that the president lacks authority to direct McGahn and resolves the case either solely on that basis or as part of a broader ruling on immunity, the impact on current and future oversight disputes could be far-reaching, encompassing all disputes involving former officials whether they are grounded in immunity or executive privilege.