Biden administration begins negotiating over Don McGahn testimony to House, new court filing says

McGahn has been holding off the testimony for almost two years — with the Trump-era Justice Department defending him — as the House Judiciary Committee has sought and failed to force his appearance under a subpoena in an investigation of Trump’s attempts to obstruct the Russia investigation following special counsel Robert Mueller’s final report documenting obstruction.

But the change in presidential administrations appears to be thawing the standoff between the branches of government.

The shift in tone on McGahn Wednesday is one of the most significant signs of change thus far in how the executive branch under President Joe Biden may grapple with Trump’s years-long refusal to cooperate with congressional investigations. The Trump administration prevented sharing of executive branch information subpoenaed by the Democratic-led House and blocked witnesses from the administration from testifying against the then-President.

The Justice Department first indicated the shift in a new court filing on Wednesday night. In a response in court about an hour later, the House Judiciary Committee also acknowledged the negotiations.

Private attorneys for Trump and McGahn have not yet spoken up in court.

Yet the House, in its filing, said that both McGahn and Trump may take part in the negotiations over Trump’s ex-White House counsel’s testimony. That could lead to further standoffs, the House told the DC Circuit Court of Appeals.

“Because the Biden Administration must coordinate with McGahn, the recipient of the subpoena and an official from the prior Administration, settlement discussions promise to be complex. It should be expected that the Biden Administration will also consult with former-President Trump regarding the possibility of a settlement,” the House wrote in a court filing to the appeals court. “That consultation will further complicate the discussions, and it seems likely that no global agreement will be reached.”

Court argument upcoming

The DC Circuit Court of Appeals is set to hear arguments next week about the House’s ability to enforce the subpoena of McGahn in court.

But the Justice Department, which represents McGahn because of his role as a former administration official, is asking to postpone those arguments for at least a month and a half.

“The new Administration wishes to explore whether an accommodation might be available with respect to the Committee’s request,” Justice Department lawyers wrote in the filing to the appeals court. “Discussions among the relevant parties have begun, and the new Administration believes the parties would benefit from additional time to pursue these discussions. … It is in the interest of all concerned to allow sufficient time and opportunity for the Branches to seek a compromise in this case.”

The House disagrees and wants the court to stick to its schedule and make a decision on the powers of the other branches of government.

“Given this history and the already lengthy delays that have prevented the Committee from obtaining McGahn’s testimony, further delay in this case would be inappropriate,” the House added in its filing. “We appreciate the Biden Administration’s efforts to settle this case, and we have actively participated in those efforts. But we do not believe that postponing the argument will improve the prospect of a settlement or serve the interests of judicial efficiency or fairness to the parties.”

The McGahn case became the first of several major court battles between Trump and House Democrats during their investigations in the final two years of his presidency. As the case plodded through the court system, it kept alive a congressional inquiry into Trump on obstruction, as well as tested major questions about the role of the judiciary and the balance of power among the three branches of government.

The McGahn case was initially decided by a trial-level judge who wrote, “Presidents are not kings” and ruled that McGahn must testify under subpoena. But the case then wound through several rounds in the DC Circuit, as the court weighed questions about whether the House could sue, delaying the testimony.
Several cases where the Justice Department defended Trump’s political approach are still lingering in court. Those are now left to the Biden administration to decide how to proceed. The cases include a dispute over the release of Trump’s tax returns to Congress.

This story has been updated with additional developments.

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