The Justice Department had argued that the McGahn lawsuit should essentially be dismissed as moot because the subpoena that Nadler issued in 2019 would lose effect once the current Congress expires on Jan. 3.
But Letter pointed to the House’s long history of allowing litigation, noting that if any Congress had to start from scratch, it would simply indefinitely prevent answers to crucial questions about Congress’s ability to give testimony to enforce the executive. Although Trump will be absent, Letter stressed that his testimony could help shape “ corrective legislation. ” Nadler said in his memo that he anticipated legislation to “restore historical norms” governing the relationship between Congress and the executive branch.
McGahn was a central witness to the evidence that Trump was trying to obstruct Mueller’s probe. He twice ordered McGahn to remove Mueller and also ordered him to make a false report on the decision, McGahn told Mueller investigators.
The judicial committee subpoenaed McGahn for testimony in April 2019, but he ignored their deadline on Trump’s orders. The House took the case to court in August 2019, and lawmakers have since worked their way through a lawsuit. The Justice Department and the White House have claimed that McGahn and other close associates of the president are “absolutely immune” to testimony, a doctrine that has never been upheld by a court of law but has rarely been tested. Courts that have examined it have largely dismissed the scope of the claim, but have also failed to set detailed outlines for when Congress can demand testimony from senior presidential advisers.
It is unclear whether the upcoming Biden administration will maintain the Justice Department stance on the case.
The House’s case is now pending before the full U.S. Court of Appeals for Washington, DC, after a panel of three justices overturned the House’s case on technical grounds, claiming that the House does not have the legal authority to do anything at all. to initiate a summons procedure. The unexpectedly sweeping verdict confused the top Democrats, who quickly appealed to the full court, which has already invalidated a similarly broad ruling by the same three-judge panel.
The Justice Department will file a response letter on Jan. 11, and a plea is scheduled for Feb. 23.
Even if the House has the upper hand to convince a court that McGahn is not ‘immune’ to testimony, Trump – even outside of office – has the ability to invoke executive privileges over aspects of McGahn’s potential testimony, which could create additional obstacles even if the former white House Attorney agrees to testify.