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      How Trump Could Resist the Jan. 6 Panel’s Subpoena

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      If the ex-president turns down the drama of testifying, his legal team could mount several constitutional and procedural arguments in court.WASHINGTON — If former President Donald J. Trump decides to fight the subpoena issued to him on Friday by the House committee investigating his attempts to overturn the 2020 election, his lawyers are likely to muster a battery of constitutional and procedural arguments for why a court should allow him not to testify.In the most basic sense, any legal arguments seeking to get Mr. Trump off the hook would merely need to be weighty enough to produce two and a half months of litigation. If Republicans pick up enough seats in the midterm elections to take over the House in January, as polls suggest is likely, they are virtually certain to shut down the Jan. 6 committee, a move that would invalidate the subpoena.The issues raised by the extraordinary subpoena, which the panel announced at a hearing last week, are too complex to be definitively resolved before a potential change of power in the House, said Mark J. Rozell, a George Mason University professor and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”“We are in a constitutional gray area here where there is no clear guidance as to exactly what should happen,” Mr. Rozell said. “That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.”Several former presidents have voluntarily testified before Congress, including Theodore Roosevelt, William Howard Taft, Herbert Hoover, Harry S. Truman and Gerald Ford. But there is no Supreme Court precedent that says whether Congress has the power to compel former presidents to testify against their will about their actions in office.There are two historical precedents, but neither generated court rulings. In 1846, the House subpoenaed two former presidents, John Quincy Adams and John Tyler, for an investigation into allegations of misspending by a secretary of state. According to a Congressional Research Service report, Tyler testified and Adams submitted a deposition.A subpoena of testimony from Harry S. Truman was eventually dropped by the House after he refused to honor it.The New York TimesAnd in 1953, the House Committee on Un-American Activities subpoenaed Truman. But while he later voluntarily testified before Congress on other topics, Truman refused to honor the committee’s subpoena, claiming that as a former chief executive he was immune from compelled testimony by the legislative branch. The House let the matter drop.One open question, then, is whether Truman was right. Should Mr. Trump’s legal team choose to argue that he was, one Supreme Court precedent could prove relevant: In 1982, the court ruled that former presidents are immune from being sued for damages over official decisions they made while in office.In that case, Nixon v. Fitzgerald, the majority reasoned that presidents must be able to perform their constitutional duties without being inhibited by the fear that a decision could risk making them liable to pay civil damages after they leave office. The question in Mr. Trump’s case would be whether a president could be similarly hindered by a fear of being forced to testify in front of Congress.Mr. Trump’s legal team could also invoke executive privilege in an attempt to ward off the subpoena. In another case involving Richard Nixon, the Court of Appeals for the D.C. Circuit ruled in 1974 that a Senate committee investigating the Watergate scandal could not force Nixon, then the sitting president, to turn over tapes of his Oval Office conversations.The appeals court ruled that the Senate’s need for the tapes was not enough to overcome the presumption of confidentiality guarding the presidential decision-making process. That general confidentiality is important, courts decided, so that presidents can receive candid advice from their aides about how best to carry out their constitutional functions.(More famously, about three months later, the Supreme Court upheld a subpoena by the Watergate prosecutor for the tapes, citing the greater need for them in a criminal proceeding. Soon after, Nixon resigned to avoid being impeached.)Unlike Nixon in 1974, however, Mr. Trump is now a former — not a sitting — president, and his claims to executive privilege would be weaker. The current officeholder, President Biden, who has greater authority to invoke or withhold executive privilege, might not support him..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Notably, Mr. Biden declined to support an earlier attempt by Mr. Trump to invoke executive privilege to keep the Jan. 6 committee from subpoenaing the National Archives for White House records. The Supreme Court, ruling against Mr. Trump, declined to block the subpoena, although it did so in a way that left unresolved the scope of an ex-president’s powers under executive privilege.Still, courts might view forcing a former president to show up at the Capitol and testify under oath differently than obtaining documents. Mr. Biden might also be more reluctant to establish a precedent that could help a Republican-controlled Congress subpoena him for testimony.Mr. Trump could also try to mount a procedural argument that the subpoena is invalid.That tactic has been used by nearly 30 people — among them, former aides to Mr. Trump — who have filed lawsuits seeking to quash subpoenas from the Jan. 6 committee. Many of these witnesses have argued the panel was improperly constituted and the subpoenas are insufficiently connected to writing laws.The first argument goes like this: The House resolution authorizing the committee envisioned that Speaker Nancy Pelosi would appoint 13 members, including five in consultation with Republican leadership. But the panel has only nine members, and neither of its two Republicans — Liz Cheney of Wyoming and Adam Kinzinger of Illinois — were endorsed by the minority leader, Representative Kevin McCarthy of California, who boycotted the process after Ms. Pelosi rejected several of his choices.As for the second, lawyers for the witnesses have argued that the subpoenas were not sent with the goal of assisting Congress in its role in drafting laws, but rather as a politically motivated fishing expedition for embarrassing information about Mr. Trump.In 1974, a Senate committee investigating the Watergate scandal could not force Richard Nixon, then the sitting president, to turn over tapes of his Oval Office conversations.Eddie Hausner/The New York TimesMost of the lawsuits challenging the subpoenas on these — and other — grounds are still working their way through the courts. But in May, a federal judge in Washington dismissed both of the arguments claiming the subpoenas were invalid in a case the Republican National Committee brought against the panel.That ruling, however, was vacated several months later by the Court of Appeals for the D.C. Circuit after the committee dropped its subpoena for the Republican National Committee.A Federal District Court judge also rejected claims that the committee’s subpoenas were invalid in the criminal prosecution of Stephen K. Bannon, a former adviser to Mr. Trump, who was sentenced to four months in prison on Friday for defying a subpoena from the House panel.In a ruling in the case, Judge Carl J. Nichols, a Trump appointee, noted that the full House had voted to hold Mr. Bannon and others who defied subpoenas in contempt, indicating that the body viewed the committee’s subpoena as valid. Judge Nichols said courts must defer to the House’s interpretation of its own rules, so he “cannot conclude as a matter of law that the committee was invalidly constituted.”Still, rulings by district court judges are not definitive precedents, leaving much to litigate.It also remains unclear which route to court a fight over the Trump subpoena could take. Mr. Trump might file his own suit asking a judge to quash it. Or he could wait for the House to try to enforce its subpoena.One way for that to happen would be for the full chamber to vote on whether to hold him in contempt and to refer the matter to the Justice Department for potential criminal prosecution, as it did for Mr. Bannon.It would then be up to Attorney General Merrick B. Garland to decide whether to bring a criminal charge. The Jan. 6 committee could also file its own lawsuit against Mr. Trump seeking a judicial order that he comply. In August 2019, for example, the House Judiciary Committee sued Mr. Trump’s former White House counsel, Donald F. McGahn II, who at Mr. Trump’s direction defied its subpoena seeking his testimony about Mr. Trump’s obstruction of the Russia investigation.The lawsuit set off a series of convoluted legal fights over constitutional issues and was still pending even when Mr. Biden became president in January 2021. That underscores the lack of time for extended litigation in Mr. Trump’s case.Aides to Mr. Trump have said that he has weighed whether to testify, but only under the condition that it be live and on television. That would deprive the committee of controlling what gets seen or from releasing only selected excerpts.Mr. Rozell said that was not surprising.“If Trump is going to go out there and make himself vulnerable, he’s going to do it in a public way,” he said. “It’s going to be a Trump show, and he’ll be playing to his own crowd. At that point, legal argument and nuances would be out the window.” More

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      Will Trump Face a Legal Reckoning in Georgia?

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      Over 2,300 text messages to and from Mark Meadows, a former chief of staff for Donald J. Trump, offer stunning real-time details of the efforts to overturn the 2020 presidential election. Not least among the revelations are Mr. Meadows’s repeated overtures to the Georgia secretary of state, Brad Raffensperger, with Mr. Meadows pressing the Georgian to be in communication with the White House.Mr. Trump and Mr. Raffensperger eventually spoke, resulting in Mr. Trump’s now-infamous demand that the secretary “find 11,780 votes” — just one more vote than Joe Biden’s margin of victory in the state.On May 2 we see the latest consequence of those efforts: the opening of a special grand jury by District Attorney Fani Willis in Fulton County, Ga., to gather evidence relating to possible criminal charges against Mr. Trump and others associated with him. As important as congressional investigations are, Ms. Willis’s work may present the most serious prospect of prosecution that Mr. Trump and his enablers are facing.We understand that after Robert Mueller’s investigation and two impeachments, the prospect of Mr. Trump actually facing accountability may be viewed with skepticism. Most recently, he seems to have avoided charges by the Manhattan district attorney, Alvin Bragg.But Ms. Willis, a Democrat, has a demonstrated record of courage and of conviction. She has taken on — and convicted — a politically powerful group, Atlanta’s teachers, as the lead prosecutor in the city’s teacher cheating scandal.And she is playing with a strong hand in this investigation. The evidentiary record of Mr. Trump’s postelection efforts in Georgia is compelling. It is highlighted by a recording of Mr. Trump’s Jan. 2, 2021, call with Mr. Raffensperger, in which Mr. Trump exhorted Mr. Raffensperger to “find” those votes.The tape also contains threats against the secretary and his staff that had an element of coercion, like Mr. Trump’s warning that failing to identify (nonexistent) fraud would be “a big risk” to Mr. Raffensperger and to his lawyer. The recording is backed by voluminous evidence that Mr. Trump likely knew full well he had lost, including acknowledgment from administration officials like his attorney general, William P. Barr, and an internal Trump campaign memo admitting that many fraud claims were unfounded. As a federal judge noted in finding that Mr. Trump’s efforts to overturn the election were likely criminal, the former president “likely knew the justification was baseless and therefore that the entire plan was unlawful.”What’s more, Georgia criminal law is some of the most favorable in the country for getting at Mr. Trump’s alleged misconduct. For example, there is a Georgia law on the books expressly forbidding just what Mr. Trump apparently did in Ms. Willis’s jurisdiction: solicitation of election fraud. Under this statute, a person commits criminal solicitation of election fraud when he or she intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud.The decision to impanel a special grand jury is itself another indicator of the peril Mr. Trump may face. Under Georgia practice, special purpose grand juries are typically used for focused investigation of a matter and have the power to subpoena witnesses. Special grand juries develop expertise in a single case over a sustained period (here up to 12 months), as opposed to regular grand juries, which hear many matters over a shorter period. Unlike regular grand juries, the special grand jury cannot issue an indictment, but any charging recommendations are presented by a district attorney to a regular grand jury, which can then indict based on the special grand jury’s work.The special grand jury will begin issuing subpoenas for some of the 30 or so witnesses who have refused requests for voluntary interviews. Those initial witnesses will then be served and will start appearing in June. Mr. Trump and those closest to him have a history of rushing to court to fight subpoenas, but they are unlikely to be given the opportunity in this first wave. Careful prosecutors usually start with less controversial witnesses, and Ms. Willis is a careful prosecutor. If Mr. Trump or those closest to him are served, that is when subpoenas are most likely to be challenged in court — but that is probably months away.If Mr. Trump is charged, it will set off a legal battle. There are substantial legal defenses that Mr. Trump could attempt. He could argue that he has constitutional immunity from prosecution for his acts while president, that his words were protected by the First Amendment or even that he acted in absolute good faith because he genuinely believed that he had won.The judicial system will ultimately decide if these defenses will work. But soliciting election fraud is not within the scope of official presidential duties protected by immunity, the First Amendment does not protect criminal activity, and a president cannot successfully claim good faith when he was repeatedly told by his own officials that there was no fraud. Still, no one should consider the case a slam-dunk.The case also in no way diminishes the importance of the House of Representatives’ Jan. 6 committee. In fact, the committee will most likely aid the Georgia prosecution while going about the business of its own investigation. (Ms. Willis and the committee have reportedly already been in contact.) For example, litigation with Mr. Meadows disclosed key details of the alleged plot to overturn the Georgia election. An email the committee filed from one of the lawyers helping Mr. Trump, Cleta Mitchell, included a detailed 11-point memo about overturning the election. Operating outside Washington, Ms. Willis might have taken years to obtain that email and other evidence like it.Jury trials, which both of us have tried and supervised, are living events, and success is never assured. But in Georgia, if it reaches that stage, the evidence is strong, the law is favorable, the prosecutor is proven, and the cause — democracy itself — is just.Norman Eisen, a senior fellow at Brookings and the executive chair at the States United Democracy Center, was special counsel to the House Judiciary Committee during the first Trump impeachment and is the author of “Overcoming Trumpery.” Donald Ayer, a former U.S. attorney in the Reagan administration and deputy attorney general in the George H.W. Bush administration, is an adjunct professor at Georgetown Law and on the advisory board of States United.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      McGahn Affirmed That Trump Tried to Oust Mueller

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      The former White House counsel testified behind closed doors last week about the former president’s attempts to interfere with the Russia investigation.WASHINGTON — Donald F. McGahn II, who served as White House counsel to former President Donald J. Trump, has told lawmakers that episodes involving him in the Russia report by the special counsel, Robert S. Mueller III, were accurate — including one Mr. Trump has denied in which the president pressed him to get the Justice Department to remove Mr. Mueller.A 241-page transcript of Mr. McGahn’s closed-door testimony from last week, released on Wednesday by the House Judiciary Committee, contained no major revelations. But it opened a window on Mr. McGahn’s struggles to serve as the top lawyer in a chaotic White House, under a president who often pushed the limits of appropriate behavior.“They don’t teach you this in law school,” Mr. McGahn said of one episode he witnessed in which Mr. Trump was trying to get his attorney general at the time, Jeff Sessions, to resign because he had recused himself from the Russia investigation.Mr. McGahn was a major witness to many of the episodes outlined in the second volume of the Mueller report, which focused on actions Mr. Trump took to obstruct the investigation. After then-Attorney General William P. Barr — who said none of those episodes amounted to a chargeable crime — released most of the report in 2019, Democrats subpoenaed Mr. McGahn, hoping for a dramatic televised hearing.But the Trump Justice Department fought to block the subpoena, leading to a protracted and complex court battle. It came to an end when the Biden Justice Department struck a deal with House Democrats to permit Mr. McGahn to testify, but under strict limits: It would take place in private, and he could only be asked about information in the public portions of the Mueller report.While the testimony was belated and limited, the chairman of the Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, portrayed it as important.“Mr. McGahn provided the committee with substantial new information,” Mr. Nadler said in a statement accompanying the transcript release. He added, “All told, Mr. McGahn’s testimony gives us a fresh look at how dangerously close President Trump brought us to, in Mr. McGahn’s words, the ‘point of no return.’”Mr. McGahn used that phrase when a staff lawyer for House Democrats grilled him at length about Mr. Trump’s efforts to get him to tell the deputy attorney general at the time, Rod J. Rosenstein, to remove Mr. Mueller over a dubious claim that the special counsel had a conflict of interest — which Mr. McGahn refused to do, believing it could “cause this to spiral out of control.”After Mr. Trump called him at home on a Saturday in 2017 to pressure him again to tell Mr. Rosenstein to oust Mr. Mueller, for example, Mr. McGahn testified, he was deeply concerned.“After I got off the phone with the president, how did I feel?” he said. “Oof. Frustrated, perturbed, trapped. Many emotions.”Fearing that conveying the directive might instead prompt Mr. Rosenstein to resign and touch off a crisis akin to President Nixon’s Saturday Night Massacre during the Watergate scandal, Mr. McGahn instead prepared to resign if Mr. Trump did not relent. He told several colleagues at the White House about his intention, although not Mr. Trump himself. But the crisis instead blew over for a time.In his testimony, Mr. McGahn acknowledged that he was afraid that if Mr. Trump removed Mr. Mueller or otherwise interfered with the investigation, the action would be used to accuse the president of obstruction of justice. But he was also careful to frame his concerns as being about public relations, without acknowledging that any legal lines were ever crossed.“It didn’t mean the president was meddling, but certainly it would be easily made to look that way,” Mr. McGahn said.The internal furor over Mr. Trump’s previous attempt to oust Mr. Mueller reignited in January 2018, when The New York Times and then The Washington Post reported on the encounter.Mr. Trump was enraged and pushed Mr. McGahn to make a statement denying that the episode had happened, but he refused to do so — because, he said, The Times story was substantially accurate. (Mr. McGahn said that The Post’s follow-up to The Times story was clearer on one issue — whether he had conveyed his threat directly to Mr. Trump — because Mr. McGahn had been a source for The Post in order to explain that nuance.)Mr. McGahn had by then also already told Mr. Mueller’s team about the event — Mr. Trump had ordered him to cooperate with the special counsel — and he feared that Mr. Mueller would consider charging him with making a false statement to law enforcement officials if he contradicted his account.Mr. McGahn also called Mr. Trump’s claim that he never even suggested firing Mr. Mueller “disappointing,” because Mr. Trump “certainly entertained the idea. Certainly seemed to ask a number of people about it. Certainly had a number of conversations with me about something along those lines.”The fight over whether Mr. McGahn would falsely say that Mr. Trump had never asked him to have the special counsel removed by Mr. Rosenstein also led to a vivid moment in the Mueller report where Mr. Trump chastised Mr. McGahn for keeping notes of their conversations, saying it was not something that Roy M. Cohn — a notorious lawyer who was disbarred for unethical conduct, but who Mr. Trump admired — would have done. Cohn died in 1986.“I didn’t really respond,” Mr. McGahn said. “I’ve made my point. And this was not the first time that Roy Cohn has sort of — the ghost of Roy had come into the Oval Office, so it didn’t seem to be a point worth responding to and, you know, he’s the president, he gets the last word.” More

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      McGahn Breaks Little New Ground in Closed-Door Testimony

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      A transcript of the former White House counsel’s appearance, which ended a two-year dispute between the Justice Department and Congress over a subpoena, will be made public next week.WASHINGTON — Donald F. McGahn II, the former White House counsel, answered detailed questions from Congress behind closed doors on Friday about President Donald J. Trump’s efforts to impede the Russia investigation. But Mr. McGahn provided few new revelations, according to people familiar with his testimony.The fact that Mr. McGahn spoke to Congress at all was significant after a multiyear legal battle by the Trump Justice Department to block an April 2019 subpoena for his testimony. That dispute ended last month, when President Biden’s Justice Department, House Democrats and a lawyer for Mr. McGahn reached a compromise under which he finally showed up.Still, the interview by the House Judiciary Committee, attended by only a half dozen or so lawmakers on a summer Friday when Congress was on recess, was an anticlimactic conclusion to a saga that once dominated Capitol Hill. When Democrats first subpoenaed Mr. McGahn, they believed his testimony under oath and on live television could help build public support for impeaching Mr. Trump for obstruction of justice and other matters.Instead, in the time it took to sort out a tangled legal battle, questions about the events Mr. McGahn witnessed have largely faded into the background or been carefully detailed by the special counsel, Robert S. Mueller III. Mr. Trump’s presidency turned up newer issues for which the House impeached him twice — and the Senate acquitted him both times.“I believe we have been vindicated in terms of the intimacy of his involvement and the ultimate conclusions of the Mueller report,” Representative Sheila Jackson Lee, Democrat of Texas, told reporters as she exited the session. “The Congress has to be respected with its subpoena and oversight responsibilities.“Today, we asserted that right,” she added.But under the strict limits imposed by the terms of the deal, Mr. McGahn’s appearance broke little new ground, according to those familiar with it, who spoke on the condition of anonymity because they were not authorized to discuss it. The agreement limited questioning to matters that were described in the publicly available portions of Mr. Mueller’s report.Mr. McGahn will have up to a week to review a transcript for accuracy before it is made public. But the people said that he hewed closely to the account he had already given the special counsel, often telling committee lawyers that his recollections of events from four years ago were no longer sharp.Republicans were pleased to declare the interview a waste of time as they left the session after more than five hours of questioning.“Today, we have the House Democrats on the Judiciary Committee relitigating the Mueller report,” said Representative Jim Jordan of Ohio, the top Republican on the Judiciary Committee. “Don McGahn hasn’t been White House counsel for three years.”Mr. McGahn was a witness to many episodes described in the second volume of the Mueller report, which centered on potential obstruction of justice issues; his name appears there more than 500 times.In June 2017, for example, Mr. Trump called Mr. McGahn at home and ordered him to tell Rod Rosenstein, the deputy attorney general, to fire Mr. Mueller over a dubious claim that the special counsel had a conflict of interest. Mr. McGahn refused and was prepared to resign before Mr. Trump backed off, according to the Mueller report.After the report became public, Mr. Trump claimed on Twitter that he had never told Mr. McGahn to fire Mr. Mueller. Two people familiar with the hearing on Friday said that the session had spent a lengthy period going over that episode, and that Mr. McGahn had testified under oath that the account in Mr. Mueller’s report was accurate.The report also described a related episode that followed a January 2018 report by The New York Times that first brought to public light Mr. Trump’s failed attempt to have Mr. Mueller fired. Mr. Trump tried to bully Mr. McGahn into creating “a record stating he had not been ordered to have the special counsel removed” while also shaming the lawyer for taking notes about their conversations. But Mr. McGahn refused to write the memo.Mr. McGahn was also a major witness to several other episodes recounted in the obstruction volume of Mr. Mueller’s report, including the White House’s handling of the Justice Department’s concerns that Mr. Trump’s first national security adviser, Michael T. Flynn, was vulnerable to blackmail by Russia over false statements he had made about his conversations with the country’s ambassador. Mr. McGahn was also part of deliberations leading to Mr. Trump’s firing of James B. Comey Jr., the F.B.I. director.Mr. Trump had directed Mr. McGahn to speak with Mr. Mueller’s investigators in 2017. In 2019, as it became clear that Mr. McGahn had become a chief witness to many of Mr. Trump’s actions that raised obstruction of justice concerns, the president’s allies — like his personal lawyer Rudy Giuliani — began attacking him.The attacks left Mr. McGahn in a delicate position. He is a hero to the conservative legal movement because he was the chief architect of the Trump administration’s judicial selection process, which filled the federal bench with Federalist Society-style appointees. But Mr. McGahn’s law firm, Jones Day, has many Republican-oriented clients; if Mr. Trump were to order the party faithful to shun the firm as punishment, it could be financially devastating.Democrats were eager to claim Mr. McGahn’s testimony on Friday as a victory despite the lack of new disclosures, saying it upheld the principle that a White House could not prevent a key administration official from testifying before Congress. It added a second precedent to one created in 2009, when the new administration of President Barack Obama struck a deal to end litigation he had inherited over whether President George W. Bush’s former White House counsel, Harriet Miers, would testify about firings of United States attorneys.But because the compromise agreement to permit Mr. McGahn to testify effectively cut short the litigation, a federal appeals court never issued any binding precedent to resolve the long-running ambiguity over whether Congress can sue the executive branch in a subpoena dispute. That means the next time such a clash arises, Mr. Biden or a future president can again stonewall Congress and litigate the same issue all over again.Representative Jerrold Nadler, Democrat of New York and the chairman of the Judiciary Committee, said Mr. McGahn “shed new light on several troubling events today.” But the congressman also described the belated nature of the testimony as a mixed bag.“In one sense, today is a great victory for congressional oversight. By securing Mr. McGahn’s testimony, we have made clear that the executive branch must respect our subpoenas,” he said. “On the other hand, two years is clearly too long to wait to enforce a valid subpoena, and the Trump era has taught us that Congress can no longer depend on good-faith cooperation with our committees.”Mr. Nadler said he planned to advance legislation that would resolve legal disputes over subpoenas to executive branch officials more quickly. More

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      McGahn to Testify About Trump’s Efforts to Obstruct Russia Inquiry

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      President Donald J. Trump’s former White House counsel, Donald F. McGahn II, is set to testify before the House Judiciary Committee on Friday about whether Mr. Trump obstructed the Russia investigation, bringing to a close a long legal and political battle.The fact that Mr. McGahn is talking to Congress at all is significant after a multiyear legal battle by the Trump Justice Department to block a subpoena for his testimony. That dispute ended last month when the Biden Justice Department, House Democrats and a lawyer for Mr. McGahn reached a compromise.Under that deal, Mr. McGahn’s appearance may yield little in terms of new revelations. He will testify behind closed doors and will have up to a week to review a transcript for accuracy before it is made public. He also may be questioned only about his involvement in matters that are described in the publicly available portions of the report by the special counsel, Robert S. Mueller III.Still, Mr. McGahn is likely to be asked to respond under oath to Mr. Trump’s public denial of events that were described in the report based in part on what Mr. McGahn told Mr. Mueller’s investigators, including that Mr. Trump had ordered him to have Mr. Mueller fired — a step Mr. McGahn said he refused to take.Congress is out of session this week, and members must be physically present to participate, so the full committee is not expected to attend. While those who do will have the right to ask questions, Mr. McGahn is expected to be questioned primarily by committee staffers. He will be accompanied by his lawyer, William A. Burck. More

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      McGahn Likely to Testify on Trump's Efforts to Obstruct Russia Inquiry

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      A delay is said to have stemmed from an initial threat by former President Donald J. Trump to intervene, but he apparently reversed course.WASHINGTON — President Donald J. Trump’s former White House counsel, Donald F. McGahn II, has agreed to testify behind closed doors before the House Judiciary Committee sometime next week about Mr. Trump’s efforts to obstruct the Russia investigation, according to two people familiar with the matter.Lawyers for House Democrats, the Justice Department and Mr. McGahn had tentatively struck a deal to provide the testimony earlier in May. But the scheduling was delayed for weeks while they waited to see what Mr. Trump, who was not a party to the agreement, would do.Mr. McGahn’s agreement to testify — with President Biden’s permission — was contingent upon there being no active legal challenge to his participation in the matter, according to the two people, who spoke on the condition of anonymity because of the legal and political sensitivity of the matter.Immediately after the deal was announced this month in a court filing, a lawyer for Mr. Trump had conveyed that the former president intended to intervene. Former presidents can invoke executive privilege, although courts weigh that against the view of the incumbent president, and Mr. Trump could have sought a court order blocking Mr. McGahn’s testimony.But late last week, the people said, the lawyer for Mr. Trump — Patrick Philbin, a former deputy White House counsel in the Trump administration who is continuing to help handle his post-presidential legal affairs — said that Mr. Trump would not be intervening after all.Mr. Philbin, who did not respond to a request for comment, is said to have provided no reason for the about-face.While he was president, Mr. Trump vowed to stonewall “all” congressional subpoenas, and taxpayer-funded lawyers with the Justice Department fought lengthy court battles and appeals that succeeded in running out the clock on the possibility that House Democrats would obtain the information they were seeking before the 2020 election.Now that Mr. Trump is no longer president, however, there is at least one major difference: To keep litigating over the matter, Mr. Trump would have to pay the legal costs himself.The McGahn case stems from the House Judiciary Committee’s desire in 2019 to question him about matters related to his role as a key witness in the report by the special counsel, Robert S. Mueller III, about efforts by Mr. Trump to impede the Russia investigation.But after the panel subpoenaed Mr. McGahn to testify, he refused to appear, on Mr. Trump’s instructions. The committee sued, and the case went through several rounds of legal fights over various constitutional issues that lacked definitive precedents because previous such disputes had generally been resolved with a negotiated compromise.Currently, the case is pending before the Court of Appeals for the full District of Columbia Circuit on the question of whether Congress has a “cause of action” that permits it to sue the executive branch. Under presidents of both parties, the executive branch has argued that Congress does not, and the Biden Justice Department had signaled that it was prepared to keep arguing that position if no accommodation could be reached.The deal averts the uncertain outcome of further such litigation — but also means that the next time a fight emerges over a subpoena from the House to the executive branch, the Justice Department will be able to start fresh in prolonged litigation over that unresolved issue.Under the deal, according to a court filing, there will be strict limits on the testimony Mr. McGahn will provide. He will testify behind closed doors for a transcribed interview, rather than in public.Only lawmakers on the House Judiciary Committee may attend. And they may ask Mr. McGahn only about information attributed to him, or events involving him, in the publicly available portions of the Mueller report.The deal also says that the parties will get up to seven days to review the transcript for accuracy before it is made public, suggesting that it would be disclosed sometime in the second week of June. More

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      House, Biden Administration Reach Deal Over McGahn Testimony

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      A terse announcement signaled a possible end to a long-running constitutional lawsuit. But former President Donald J. Trump is not a party to the arrangement.WASHINGTON — The Biden administration and House Democrats have reached a tentative deal to allow President Donald J. Trump’s former White House counsel, Donald F. McGahn II, to testify before Congress about Mr. Trump’s efforts to obstruct the Russia inquiry, according to a court filing late Tuesday.The deal appears likely to avert a definitive court precedent that would draw a clear line in an ambiguous areas: the scope and limits of Congress’s constitutional power to compel testimony for its oversight responsibilities, and a president’s constitutional power to keep secret conversations with a White House lawyer.An appeals court had been set to hear arguments on the case next week, but lawyers for the Justice Department, which has been defending Mr. McGahn since 2019 against a House subpoena seeking to compel his testimony, and for the House of Representatives asked the court in a joint letter to drop that plan as mooted by the deal.“The Committee on the Judiciary and the executive branch have reached an agreement in principle on an accommodation and anticipate filing, as soon as possible, a joint motion asking the court to remove this case from the May 19, 2021, oral argument calendar in order to allow the parties to implement the accommodation,” the letter said.What to do about the subpoena case, which President Biden inherited from the Trump administration, has been a rare locus of institutional disagreement among Democrats in the two branches.Lawyers in the Biden White House have been hesitant about establishing a precedent that Republicans might someday use to force them to testify about their own internal matters. House Democrats under Speaker Nancy Pelosi have been determined to push forward after frustration that the Trump administration’s uncompromising approach and litigation strategy ran out the clock, preventing any testimony by Mr. McGahn before the 2020 presidential election.The two sides had been negotiating for several months, leading to delays in the appeals court case. The filing was terse and offered no details about the deal, including what limits, if any, there would be — like whether Mr. McGahn would testify in public and the scope of what lawmakers could ask him to disclose.But the filing also flagged a potential wild card: “Former President Trump, who is not a party to this case, is not a party to the agreement in principle regarding an accommodation,” it said.That absence leaves open the question of whether Mr. Trump could try to intervene to block Mr. McGahn from testifying by asserting executive privilege. An attempt to invoke it by Mr. Trump would raise novel questions about the extent to which a former president may assert the privilege when the incumbent president declines to do so.Should Mr. Trump try to intervene, a rare but limited precedent is a 1977 case, Nixon v. Administrator of General Services, in which the Supreme Court ruled that Richard M. Nixon could assert executive privilege claims over official records from his White House even though he was no longer the president — but it also weighed that assertion 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 a former White House lawyer’s testimony.The present dispute centers on the House Judiciary Committee’s desire to question Mr. McGahn about matters related to his role as a key witness in the report by the special counsel, Robert S. Mueller III, about efforts by Mr. Trump to obstruct the Russia investigation.After the Justice Department made most of the report public, Democrats on the Judiciary Committee subpoenaed Mr. McGahn to testify. After he refused to appear, on Mr. Trump’s instructions, the committee sued.The case has gone through several rounds of convoluted legal fights over constitutional issues that have lacked definitive precedents because previous disputes had generally been resolved with a negotiated compromise, averting a need for a court ruling.But the lawsuit over the McGahn subpoena is one of an unprecedented number of cases pitting the two branches against each other in court that arose after Democrats took the House in the 2018 midterm elections and Mr. Trump vowed to stonewall “all” subpoenas.First, the Justice Department under Mr. Trump had argued that Mr. McGahn was “absolutely immune” from any compelled appearance before Congress to testify about his work duties. Last year, the full District of Columbia Circuit rejected that theory.The Justice Department then continued to fight the subpoena on other legal grounds, arguing that Congress had no “cause of action” that authorized it to sue the executive branch. (The executive branch has taken that position under administrations of both parties, and the Biden administration had signaled that it was prepared to keep arguing it.)The apparent resolution of the McGahn subpoena case — unless Mr. Trump disrupts it — is similar to a dispute in 2009, when President Barack Obama took office and inherited a House lawsuit over a subpoena for testimony by President George W. Bush’s former White House counsel Harriet Miers related to the firings of United States attorneys.The Obama administration, a lawyer for the House and a legal representative of Mr. Bush worked out a deal under which Democrats were able to confidentially interview Ms. Miers about the topic, with limits. That accommodation mooted the case, so the District of Columbia Circuit never issued a binding ruling, leaving the legal questions it raised unresolved. More

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      Has Trump's Reckoning Come Too Late?

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