House Panel, DOJ Reach Agreement in McGahn Subpoena Case: Attorneys

Then-White House counsel Don McGahn listens to U.S. Supreme Court nominee Brett Kavanaugh testify before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington on Sept. 27, 2018. (Jim Bourg/Reuters)

The Justice Department and attorneys for the House Judiciary Committee say they have reached an agreement in a case seeking to enforce a subpoena demanding testimony from former Trump White House counsel Don McGahn.

In a filing to a federal appeals court, lawyers from both sides said that the parties have reached an agreement “in principle” on an accommodation in the years-long lawsuit. It also asked the court to remove the case from its May calendar in order to allow the parties to implement that accommodation.

The status report didn’t inform the court of details about the agreement or accommodation but noted that former President Donald Trump, who isn’t a party to the case, wasn’t part of discussions to reach the agreement.

“The Committee on the Judiciary and the Executive Branch have reached an agreement in principle on 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 update reads.

House Democrats have begun a slew of investigations against Trump since 2019, which included the subpoena of McGahn in an effort to find information that could lead to Trump’s impeachment. The White House blocked McGahn’s appearance, asserting executive privilege over the documents, which prompted House Democrats to subsequently sue McGahn in August 2019 in an attempt to enforce the subpoena.

Litigation over the subpoena had taken a number of twists with a full federal appeals court intervening twice in the matter. The full District of Columbia Court of Appeals in October 2020 granted a request by the House committee to rehear the case after a divided three-judge panel ruled in August that the House can’t look to federal courts to enforce its subpoenas because there’s no law that gives the chamber the power to do so.

The full panel vacated the three-judge panel’s August 2019 decision.

The majority in the August decision wrote that the case had to be dismissed because the committee “lacks a cause of action to enforce its subpoena.”

“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” the majority opinion stated (pdf).

Last year, the full panel visited another issue in the case and ruled that the House has the legal right to bring suits, or standing, to enforce its subpoenas, but also allowed McGahn to continue challenging the subpoena on other grounds.

Following the new House session, House Judiciary Committee Chair Jerrold Nadler (D-N.Y.) reissued a subpoena for McGahn’s testimony in January.

The case is scheduled to be argued before the full circuit court on May 19.