After a nearly two-year court battle between House Democrats and the Justice Department, an agreement was reached for former Trump White House counsel Don McGahn to testify in a transcribed interview behind closed doors about the role he played in the events described in special counsel Robert Mueller’s report.
The “scope of the interview” was unveiled on Wednesday, one day after a court filing revealed a deal had been struck, and it was signed by House Democratic lawyer Douglas Letter and acting Assistant Attorney General Brian Boynton.
The interview will be “limited” to specific topics, including “information attributed to Mr. McGahn in the publicly available portions of the Mueller Report and events that the publicly available portions of the Mueller Report indicate involved Mr. McGahn. (Communications between Mr. McGahn and other Executive Branch officials that are not disclosed in the publicly available portions of the Mueller Report are outside of the scope of the interview.),” according to the agreement.
McGahn will also be asked about “whether the Mueller Report accurately reflected Mr. McGahn’s statements to the Special Counsel’s Office, and whether those statements were truthful.”
“Mr. McGahn will be free to decline to answer questions outside of the agreed-upon scope of questioning and counsel from the Department of Justice may instruct Mr. McGahn not to answer such questions,” the House-DOJ agreement added. “No assertions of executive privilege will be made with respect to information provided by Mr. McGahn to the Special Counsel and attributed to Mr. McGahn in the publicly available portions of the Mueller Report. But counsel from the Department of Justice otherwise retain the right to assert executive privilege. The Committee retains its rights to challenge any assertion of privilege.”
Trump spokesman Jason Miller told Politico on Tuesday that the former president might try to fight McGahn’s appearance.
“This case presents important questions concerning confidentiality of communications between the President and his closest advisors and the ability of a House committee to pry into those communications,” Miller said. “President Trump has not agreed to the accommodation arranged in principle by the Biden Administration with the House Judiciary Committee and is evaluating his options for fully protecting the privilege that continues to cover his communications with his closest advisors.”
The original subpoena, which McGahn and the Trump administration resisted, came before the Ukraine-related impeachment investigation into former President Donald Trump, but Democrats said they still saw testimony from the former White House counsel as essential to the process despite the articles of impeachment centering on events that took place after McGahn left the White House. The Justice Department under Trump fought the testimony in court, but under the Biden administration, the agency spent the first few months of 2021 negotiating with House Democrats.
Mueller said McGahn told the special counsel team that Trump told him the special counsel must be removed, a claim which Trump denied was true.
Mueller’s report, released in April 2019, said that in June 2017, it was reported by the media that Mueller “was investigating whether the President had obstructed justice” and that “the President reacted to this news with a series of tweets criticizing the Department of Justice and the Special Counsel’s investigation.” Mueller’s report said that Trump called McGahn at home on June 17 and “directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed” but that “McGahn did not carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre.”
The special counsel report also noted that in early 2018, the media reported that “the President had directed McGahn to have the Special Counsel removed in June 2017 and that McGahn had threatened to resign rather than carry out the order” and that “the President reacted to the news stories by directing White House officials to tell McGahn to dispute the story and create a record stating he had not been ordered to have the Special Counsel removed” and that “the President then met with McGahn in the Oval Office and again pressured him to deny the reports.” But Mueller said, “McGahn refused to back away from what he remembered happening and perceived the President to be testing his mettle.”
The agreement disclosed on Wednesday also said the interview’s format would be a “transcribed interview” of McGahn by the House Judiciary Committee instead of calling him to testify in public, with lawyers for House Democrats, House Republicans, McGahn, and the DOJ allowed to attend. Members of the public and press, along with other members of Congress, cannot attend. The agreement added that the interview will be conducted “as soon as possible, consistent with needed preparation time and the availability” of McGahn and said the committee chairman “will ask all Members and Committee staff to maintain the confidentiality of the interview until the transcript is released publicly.”
Trump attacked Mueller and McGahn on Twitter in 2019.
“As has been incorrectly reported by the Fake News Media, I never told then White House Counsel Don McGahn to fire Robert Mueller, even though I had the legal right to do so. If I wanted to fire Mueller, I didn’t need McGahn to do it, I could have done it myself,” Trump tweeted in April 2019. “Nevertheless … Mueller was NOT fired and was respectfully allowed to finish his work on what I, and many others, say was an illegal investigation (there was no crime), headed by a Trump hater who was highly conflicted, and a group of 18 VERY ANGRY Democrats. DRAIN THE SWAMP!”
Trump tweeted the next month, “I was NOT going to fire Bob Mueller, and did not fire Bob Mueller. In fact, he was allowed to finish his Report with unprecedented help from the Trump Administration … Actually, lawyer Don McGahn had a much better chance of being fired than Mueller. Never a big fan!”
The DOJ-House joint court filing on Tuesday stressed that “former President Trump, who is not a party to this case, is not a party to the agreement in principle regarding an accommodation.”
McGahn, who served as counsel from Trump’s inauguration through his resignation in October 2018, is mentioned 529 times in Mueller’s 448-page report.
The special counsel concluded that the Russians interfered “in a sweeping and systematic fashion” during the 2016 presidential election, but he “did not establish” any criminal conspiracy between the Kremlin and the Trump campaign.
Democrats sued McGahn in August 2019, claiming to need his testimony on Mueller’s inquiry, particularly the 10 instances of possible obstruction of justice that Mueller outlined in his report. Then-Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein concluded justice had not been obstructed. In November 2019, U.S. District Judge Ketanji Brown Jackson ruled in favor of the Democrats, although that was quickly appealed.
After President Joe Biden defeated Trump in the 2020 election and the Democrats maintained control of the House, Judiciary Committee Chairman Jerry Nadler reissued a subpoena in December and said that his panel still had “a right to and need for” McGahn’s testimony.
Nadler, a New York Democrat, argued at the time that “this Court has already held that the House has Article I authority to obtain information in service of its legislative function,” and he criticized “the Trump Administration’s attempt to hamstring that power.”
Rep. Jim Jordan, who was the top Republican on the committee, blasted Nadler’s decision, saying he was “disappointed that you are continuing to misuse limited Committee resources on your fanatical obsession with attacking President Donald Trump.” The Ohio Republican added that “for too long, you have allowed your oddly personal obsession with President Trump to cloud the Committee’s work.”
“When the former President vowed to fight ‘all of the subpoenas’ aimed at his Administration, he began a dangerous campaign of unprecedented obstruction,” Nadler said Wednesday. “We begin to bring that era of obstruction to an end today.”
An oral argument was scheduled before an appeals court in February, and the court then granted two postponements, with a hearing scheduled for next week. The court had said, “There will be no further postponements of oral argument in this case absent exceptional circumstances.” The House-DOJ filing on Wednesday said that the agreement “constitutes an ‘exceptional circumstance’ that justifies removing this case” from the court calendar.
The full federal appeals court revived the House Democratic effort in October 2020, extending the legal fight beyond the November presidential election. A now-reversed ruling in August 2020 by a three-judge panel had been a win for the Trump administration because the White House blocked McGahn from testifying by citing “absolute immunity” from congressional subpoenas.
