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Trump ex-counsel McGahn's Mueller testimony is a sad consolation prize for Congress

For the third time, a major dispute over Congress’ power to compel testimony has ended not with a bang, but with a whimper.

For the third time in three administrations, a major dispute over Congress’ power to compel testimony from executive branch officials ended not with a bang, but with a whimper, when the House Judiciary Committee and the Justice Department reached a deal two weeks ago for the long-sought testimony of former White House counsel Don McGahn in relation to Robert Mueller's (long-concluded) Russia investigation.

In some respects, the deal was a classic compromise — neither side got what it wanted.

McGahn, who served as former President Trump’s White House Counsel and one of his senior advisors from Trump’s election through October 2018, has been one of the most often-cited witness in the Mueller Report.

In 2019, the House Judiciary Committee issued a subpoena for testimony from him relating to whether Trump had obstructed justice or otherwise interfered with Mueller’s investigation. After the White House instructed McGahn not to testify, the Judiciary Committee sued McGahn, seeking to compel his compliance.

McGahn, in response, claimed that he was entitled to “absolute testimonial immunity” for any testimony related to his White House tenure. To date, the suit has produced multiple conflicting rulings from the federal courts, raising questions not only about McGahn’s novel and extreme claim of immunity, but also whether the Judiciary Committee has the right in the first place to sue him to enforce its subpoena. The full D.C. Circuit Court of Appeals was set to hear argument on the matter earlier this week — an argument that was cancelled in light of, and that helps explain the timing of, the agreement.

In some respects, the deal was a classic compromise — neither side got what it wanted. But the real takeaway is that until and unless Congress takes concrete steps to empower courts to resolve disputes over congressional subpoenas, and quickly, the same long-delayed nonresolution is almost certainly going to happen again.

When the defiance comes from the executive branch, that remedy is … unrealistic, to say the least.

In general, Congress’ power to issue subpoenas is well established and has been expressly upheld by the Supreme Court since the Teapot Dome scandal in the mid-1920s. Usually, though, defiance of subpoenas is enforced by the executive branch through prosecutions for contempt of Congress under a statute Congress enacted in 1938.

So when the defiance comes from the executive branch, that remedy is … unrealistic, to say the least. Instead, the historical approach in such cases, which typically arise when Congress and the White House are controlled by different parties, has been accommodation — where, after long, drawn-out negotiations, the executive branch agrees to allow some of the testimony Congress was seeking, but not all of it, and under carefully controlled circumstances. In exchange, Congress agrees not to penalize the executive branch for its noncompliance, for instance by refusing to fund certain initiatives or positions.

There are at least two problems with this status quo, though. First, it takes time — and the executive branch has every incentive to drag out the process, whether because a new Congress might be elected, the sitting administration might turn over or both. Second, as Washington has become increasingly divided, there’s increasingly less appetite for accommodation.

Former President Donald Trump, for instance, famously announced he would fight every single subpoena issued by Congress and that he would not allow anyone in his administration to cooperate. And Congress, which these days funds the government through massive omnibus bills, seldom has an incentive to use the threat of withholding funding for entire departments in exchange for one witness’s testimony.

Instead, Congress has started trying to enforce its subpoenas in court, including for McGahn. But the courts, too, have been slow to resolve these cases. In McGahn’s case, for instance, the House Judiciary Committee issued a subpoena for his testimony in April 2019. It took until just last week — more than two years later, with the Mueller investigation an uncountable number of news cycles ago — for the full federal appeals court in Washington to be set to hear arguments on whether the House could even bring the suit in the first place.

Whoever lost that argument would surely have asked the Supreme Court to intervene, and another 18 months would have elapsed in the interim. Similar fates befell prior disputes, such as the Republican-controlled House’s effort to compel executive branch testimony as part of its investigation into Operation Fast and Furious during the Obama administration or the Democratic-controlled House’s effort to force executive branch testimony related to the systematic firings of U.S. attorneys by the Bush administration in 2006: Long before the appeals could run their course, intervening events gave both sides reasons to compromise. The problem was that this was long after resolution of the disputes might have actually been helpful.

As Washington has become increasingly divided, there’s increasingly less appetite for accommodation.

But there’s an obvious solution to this impasse: If litigation takes too long, Congress has the power to speed it up. If, as the McGahn case showed, there are questions about whether the House has the right to sue to enforce its subpoenas, Congress can provide it — or, even better, put the onus on the recipient of the subpoena (who unquestionably has the right) to sue.

Imagine, for instance, a statute that provides that anyone who receives a congressional subpoena has seven days within which to contest the subpoena in federal court in Washington, and that lists the grounds on which the subpoena may be contested, including that the subpoena is invalid on its face or that the information it seeks is protected by a legally recognized privilege. If no challenge is filed, the statute would provide that the recipient then becomes subject to contempt fines — escalating by the day — if they refuse to cooperate.

And when a subpoena is challenged, the statute would then require the district court to resolve the objection within 30 days; give the party that lost seven days to appeal to the court of appeals; require the prevailing party to respond within seven days; and then give the court of appeals 30 days to resolve the appeal — after which the losing party has seven days to ask the Supreme Court to take up the case. The statute wouldn’t change the substantive law governing congressional subpoenas and defenses to them; it would just ensure that courts have more of a say in what that law and those defenses are.

All of this would be perfectly constitutional under existing law (although it gets murkier if Congress were to tell the Supreme Court, as opposed to lower courts, how long it had to rule). And we’d get from the issuance of a subpoena to the Supreme Court deciding whether or not to hear an appeal in less than three months, which would be when the easy cases would end. Even if the Supreme Court took up a case and took a full year to decide it, McGahn’s case would still have been resolved one way or the other by July 2020 — when the outcome might have still mattered.

What’s more, the decisions courts reach in these cases would have precedential effect in future disputes, so we wouldn’t have to keep reinventing the wheel. Congress may lose some of these fights, and it may win some of them. The key would be that the fights would end, unlike McGahn’s, in something other than an untimely and unhelpful draw.