The Three-Level Game in the White House Effort to Block McGahn’s Testimony

This administration seems now fully dug in against former White House Counsel Don McGahn’s appearance before the House Judiciary Committee. Evidence to the contrary may still surface, but it appears that the White House is not maneuvering for an eventual compromise. Consistent with the president’s political–and probably his attorney general’s constitutional–preferences, it is fighting any request or subpoena on the broad ground that the Committee does not have the authority to compel McGahn to appear before Congress in the Russia (or any other) matter. The current White House Counsel requested an opinion to this effect from the Office of Legal Counsel (OLC) and got what he wanted and no doubt expected.

What OLC produced is not surprising. It reflects the position that the executive branch has routinely taken over time. Whether, if push came to legal shove, the White House could sustain this position in a court challenge is another question.

It’s highly unlikely the Trump White House will find vindication in the courts. At least one court has confronted an absolute immunity claim advanced by a prior administration. George W. Bush sought to prevent testimony from a White House Counsel and another senior adviser about controversial firings of U.S. attorneys, but in a lengthy and carefully reasoned opinion, the court found that any such immunity was qualified only and had to yield to demonstrated congressional need for the information. It did not find that it was a close call: “The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.” The White House and the Congress eventually reached an accommodation consisting of closed-door interviews coupled with the requirement of an interview transcript for public release. OLC dismisses this case as entitled to no or little weight since the accommodation cut short the appellate process and prevented a definitive resolution of the issue.

Whether OLC mistakenly slighted this precedent is a question for another time and more litigation. There are other reasons why the administration should have little confidence that, if the question comes before the courts for a more final answer, the outcome would be different. The Supreme Court provided a powerful preview in the Nixon tapes.

The tapes case did not resolve the constitutional question that the White House has put into play: It specifically did not address the question whether the president can claim unqualified absolute immunity for senior aides facing a congressional request for subpoena. But the constitutional framework it established for the resolution of the question is unfavorable to the administration. At the highest level of generality, the tapes case stands for the proposition that the executive may not assert immunities so sweeping that they undermine core functions of a co-equal branch. The Nixon case was clear on the point that “the separate powers were not intended to operate with absolute independence,” and it cited the fabled Youngstown precedent in support of the constitutional plan to “integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

This position cannot be squared with the president’s claim that his senior advisers need not appear before the Congress on any topic in any circumstances. Attorney General Barr must know this.

The question then is: why invite a fight that the administration seemingly cannot win, with long term institutional implications for the presidency—and for the role of the White House Counsel?

Normally, it is far better for an administration to leave open such a question and to negotiate for McGahn to provide information, subject to specific limitations to protect privilege etc. It is then free to rattle its constitutional saber as it chooses, from time to time, because there has been no definitive ruling. Only if the White House forces the issue to unfavorable judicial resolution does it lose its ability to bluff the point as part and parcel of the two branches circling each other until one gives up or the two eventually reach an accommodation. Attorney General Barr’s seems to discount the significance of such a loss: he recently stated that he is acting only to support the office of the presidency for this and future occupants. It is hard to see how his maximalist approach, risking a losing hand likely to cost the White House for years to come, is consistent with interests of the institutional presidency.

There are a few possible explanations for the administration’s hard line. One is that the administration is not worried about litigation—either that it will happen, or that if it does, that the courts will rule against it. In the first case, it might curiously–and probably mistakenly– assume that the Democrats in the House will not take the fight to the courts. In the second, the administration may really believe that it has a winning case.

Setting aside what may be a political misjudgment about the House’s taste for legal battle, the administration may have decided that on these facts—a compelled appearance by the president’s (former) White House Counsel—it stands the best chance of moving the court in its favor. It might judge its constitutional “equities” to be stronger where the president’s access to confidential legal advice is at issue. Other advantages it may believe it holds in a looming legal contest: that the president directed the counsel to cooperate with the special counsel investigation; posed no objection to the White House Counsel’s production of damaging documents (the notes taken by McGahn’s Chief of Staff, Annie Donaldson, that chronicle the president’s various obstructive actions); and then did not assert executive privilege to prevent public release of the McGahn portions of the Mueller report. In other words, while a court may shy away from upholding an unqualified claim of immunity, it may look on these facts to suggest that the president did offer a meaningful accommodation to Congress.

So, on Barr’s theory of the case, the president is being reasonable, and Congress is not. The administration may be banking on judicial realpolitik in which ultimately the Supreme Court finds a way out, perhaps pressuring the branches to settle, without ruling squarely on the OLC’s assertion of absolute immunity. And all of this will take time.

This is not to exclude a third possibility: that the administration has concluded that if it could ever win on the immunity claim, this is the case, this is the senior aide (the White House Counsel), and these are the compelling background facts.

But it is easier to read this challenge to Congress over McGahn’s testimony another way: a means of revisiting the question, which for years has appeared to have been resolved, of whether the White House Counsel is a government or the president’s lawyer. In the Clinton administration, considerable controversy arose over the actions of Bernard Nussbaum, whom critics charged as acting too much like President Clinton’s defense counsel in fending off a variety of real or imagined scandals. Clinton later litigated and lost various privilege claims asserted to limit government counsel testimony in the criminal investigations of the Whitewater Arkansas land deal and his relationship with Monica Lewinsky. The courts held firm to the position that these lawyers, who were counsel to the United States and not the president in his personal capacity, were obligated to provide evidence in the criminal justice process..

These cases did not involve a fight between the executive and the legislative branch for a counsel’s testimony. That’s more of an open question. The Trump administration, like others before it, will argue for broader rights to block testimony in a congressional investigation. But this difference goes only so far. In the McGahn case, the president is seeking to prevent the White House Counsel from testifying at all on serious questions of presidential misconduct that have been the subject to a major criminal investigation.. What’s more, the investigation came to a controversial conclusion: a special counsel indicating deep concerns about potential obstruction of justice, but declining to reach a final conclusion, and an attorney general then deciding the issue in only a few days without examination of the investigative record.

It is difficult to overstate the level of legitimate congressional interest in a full review of these issues. Congress can justify its demand for access on a number of grounds—from the need to have this information to reach a decision on initiating an impeachment inquiry, to more general concerns about the independence of the law enforcement function and the efficacy of the special counsel regulations, and many other issues of public importance in between. By contrast, the administration’s position is that Congress is not entitled to any testimony from a White House Counsel who was a key witness in the investigation of obstruction—perhaps the key witness, if one judges by the number of citations in the Mueller report to his testimony and his Chief of Staff’s notes.

While the president would wish to style the case as a test of high constitutional principle, the courts may well conclude that it is an act of self-protection which represents a step back from the proposition that a White House Counsel represents the presidency, not the president. Barr’s motive may be quite distinguishable from the president’s. He may be moved to vindicate more generally his expansive views of presidential authority and immunities. Donald Trump’s interest may be simpler: to reclaim the White House Counsel as his own—whose testimony he controls, whose “loyalty” he can count on or, if necessary, enforce.  

After all, Trump recently tweeted that he was no “fan” of McGahn’s and would have been more likely to fire him than Bob Mueller. The courts cannot fail to take note of this and other evidence of the president’s view of the counsel’s role and the evident reasons behind his rejection of accommodations and demand for absolute immunity. It is a wonder that the attorney general is gambling on this case, to be brought on this record, to vindicate his constitutional theory.

Image: Alex Wong/Getty 

 

About the Author(s)

Bob Bauer

Former White House Counsel to President Obama (2010-2011). Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.