They say bad facts make bad law. But here is a case of bad law making bad facts.
The United States Court of Appeals for the D.C. Circuit, in a rare ruling by the full court, held 7–2 that former Trump White House counsel Don McGahn must honor a House subpoena issued in connection with the Judiciary Committee’s impeachment inquiry.
Nevertheless, this does not decide the issue that is actually important: What questions must McGahn answer?
Some readers may recall that I flagged this issue last November. That’s when an Obama-appointed D.C. district court judge, Ketjani Brown Jackson, issued a tendentious, occasionally incoherent 120-page decision holding that McGahn must honor the subpoena issued by the Judiciary Committee chaired by Jerry Nadler (D., N.Y.), the Trump-impeachment crusader. Obviously, the Committee wants to question McGahn about some of the episodes outlined in Volume II of the Mueller Report, which outlines the prosecutors’ obstruction investigation.
For all the overwrought media coverage about how Judge Jackson had ordered that McGahn “must testify to Congress,” her opinion actually held only that McGahn must physically show up in the Capitol Hill hearing room — he couldn’t just blow off the subpoena. But McGahn was one of the president’s top advisers, the counsel who provided him with legal guidance; consequently, demands that he testify raised profound executive privilege and attorney-client privilege issues. In the litigation the parties sidestepped this essential aspect of the case, and Judge Jackson did not decide it.
The Trump Justice Department, like the Obama Justice Department before it (when fending off a House investigation of the Fast and Furious scandal), took the position that the court should stay out of this dispute between the political branches. The Constitution gives those branches, particularly Congress, their own arsenals for battling over access to executive information.
Earlier this year, a three-judge D.C. Circuit panel reversed Jackson, deciding in the Justice Department’s favor. It was a divided ruling, however, along partisan lines: two Republican-appointed judges in the majority, the Democratic-appointed judge dissenting. In March, the Circuit granted rehearing en banc (i.e., by all eleven Circuit judges not in senior status). This made for a near certainty that the panel would be reversed. Not only does the Circuit skew heavily Democratic (7-4 Democratic to Republican appointees); two of the judges (Neomi Rao and Gregory Katsas) are Trump appointees who worked in the administration and would recuse themselves.
The only possibility, it seemed, that the panel ruling could be upheld hinged on the Supreme Court. The justices were due, by the end of their term, to decide Trump v. Mazars, involving the same congressional committee’s attempt to enforce a subpoena seeking the president’s financial records from his accountant. There are salient differences, of course — in Mazars, the committee was seeking the president’s personal information from a non-government third-party, while McGahn involves presidential information from a former executive official. Still, if the Supreme Court had ruled in the president’s favor — if, in effect, it had said that the judiciary should stay out of such political-branch disputes) — the Trump Justice Department would be well-positioned to urge the D.C. Circuit that, a fortiori, McGahn was immune in light of the significant privilege issues.
The justices would not say the courts should butt out, and thereby encouraged this and future Congresses to issue fusillades of subpoenas to executive officials. Yet Chief Justice John Roberts’s hand-wringing majority opinion stressed that the president has vital interests in confidentiality that both Congress and courts must weigh in determining whether Congress’s oversight demands are really necessary and sufficiently narrow in scope.
In other words, it was a prescription for endless delay while the lower courts pore over these subpoenas under the justice’s elusive guidance . . . meaning if the interbranch conflicts are to be settled in less than a year or three, Congress and the Justice Department will have to negotiate . . . which is what they would and should have been doing anyway (and what they were doing for over two centuries before Mazars formally intruded the courts into the mix).
Mazars made today’s D.C. Circuit ruling inevitable . . . and an inevitable waste of time.
Thanks to these unhelpful decisions, we now know that, if Nadler forces the issue (he will), McGahn will have to physically show up in the Judiciary Committee hearing room. There, he will refuse to answer questions because the administration will have invoked executive and attorney-client privilege.
There will follow indignant speeches by Committee Democrats that Trump and McGahn are obstructing the House’s impeachment inquiry (you didn’t think that was over, did you?), and that the White House already waved privilege by letting McGahn be interviewed by Mueller. Committee Republicans will counter with indignant speeches about how Nadler is Captain Ahab in an endless quest for the great white impeachment whale, and that by permitting McGahn to cooperate with a special counsel of the executive branch, the White House did not wave privilege for purposes of congressional or judicial proceedings.
The recriminations will be aired in the district court, whose decision will be reviewed by the D.C. Circuit, whose panel will be reviewed by the court en banc, whose maze of opinions along party lines will end up back at the Supreme Court — which will no doubt provide additional, er, clarity.
By then, either Trump will be on his farewell tour or Biden will be wrapping up his first term, and no one will remember whether Democrats wanted to grill Don McGahn or just reclaim their time.