President BidenJoe BidenGarland to emphasize national security, civil rights in first congressional appearance as attorney general Afghan president: ‘Critically important’ for US, NATO to fulfill security funding commitments Schumer ‘exploring’ passing immigration unilaterally if talks unravel MORE’s Justice Department is struggling to quickly resolve some of the high-profile court cases it inherited from the Trump administration concerning congressional demands for executive branch information.
The Biden administration has been seeking delays in several cases as it negotiates with the House committees that brought the Trump-era lawsuits, prolonging the wait to see if Attorney General Merrick GarlandMerrick GarlandDOJ slow to resolve Trump-era legal battles Court watchers buzz about Breyer’s possible retirement The evolution of ‘defund the police’ MORE will walk back or maintain some of the legal arguments made by his predecessor.
During the second half of the Trump administration, now-former Attorney General William BarrBill BarrDOJ slow to resolve Trump-era legal battles Former Barr spokesperson at DOJ hired to be Fox News Washington editor Georgia elections official slams Arizona audit as ‘neither transparent nor, likely, legal’ MORE took a hard line in defending the president against inquiries from House Democrats, arguing the executive branch has the authority to essentially ignore congressional subpoenas and information requests.
Since Biden took office, the Department of Justice (DOJ) has been granted two delays in the House Judiciary Committee’s long-running quest to compel Don McGahn, Trump’s former White House counsel, to testify before Congress. The Democratic-led committee first subpoenaed McGahn more than two years ago, and its lawsuit to force the Trump White House to comply has been bouncing around the federal courts since August 2019.
Jonathan Nash, an associate dean and constitutional law professor at Emory University’s law school in Atlanta, said the Biden administration may believe the best path forward is to settle the case in order to avoid a decision that could hurt the executive branch’s interests.
“It’s easy when you’re not in that position to say, ‘Well, that information should be turned over,’ ” he said, adding that a court win for House Democrats could create an unwelcome precedent the next time Republicans wield oversight gavels.
“That would mean that this president and all presidents have a greater potential of having stuff turned over,” said Nash, who signed onto an amicus brief backing the House Democrats’ position last year. “So it’s a case where, even though it’s all Democrat-controlled, the interests of the particular branches of government still diverge.”
The case had been seen as a high-stakes partisan battle while Trump was in office. It took several twists and turns, with each side notching important victories along the way. Twice last year, a three-judge panel ruled in favor of the Trump administration in decisions that would have effectively rendered congressional subpoenas of the executive branch unenforceable, only to be vacated and reviewed by a larger panel of judges.
Justice Department lawyers, who have been representing McGahn in the case, have told the D.C. Circuit Court of Appeals that they are negotiating with McGahn and House attorneys in hopes of finding a way to accommodate all parties. Oral arguments in the case are now scheduled for May 19, and the D.C. Circuit has said there will be no more delays in the case.
The talks are a departure from Barr’s staunch opposition to congressional investigations into the executive branch, but the House committee’s attorneys are still frustrated by the repeated delays sought by the Biden administration in a case that’s awaiting oral arguments before the full D.C. Circuit for the second time in two years.
“The bottom line is that this litigation has already been massively delayed, unfortunately no settlement has been reached, and points of disagreement among the parties have not been resolved,” the Judiciary Committee’s lawyers wrote in a court filing last month. “The oral argument should therefore finally proceed unless considerably more progress is made between the parties.”
A DOJ spokeswoman did not immediately respond when asked for comment.
Under Barr, the DOJ fought the McGahn subpoena and similar demands in court with sweeping, maximalist arguments against Congress’s ability to obtain information from the executive branch. Those included stances that Congress does not have the right to enforce its subpoenas in court and that the president and his close advisers have broad immunity from congressional subpoenas.
“What it means to have a system of separation of powers is that when each branch thinks the other branch is exceeding its powers, it uses its tools to deal with that, and the legislature had ample tools of legislative variety to deal with the alleged violations here. But the one tool it does not have, and has never had, is the ability to file lawsuits against the executive,” Hashim Mooppan, who argued the case for Trump’s DOJ, told a D.C. Circuit panel last year.
Administrations under both Democratic and Republican presidents have pushed legal arguments that shield the executive branch from congressional oversight. David Janovsky, an analyst with the nonpartisan Project on Government Oversight’s Constitution Project, said there may be little incentive for the Biden administration to completely disavow the arguments of its predecessors.
“I think it’s also really important to note, especially when you have a single party controlling Congress and the White House, that this is about institutions, and this is about Congress’s institutional power just as much as it is about the president’s. And it’s about those things even more than about partisan disputes,” Janovsky said.
“I think another ingredient is for Congress to really look at how it can revitalize some of the other powers it has to get information and make sure they keep pursuing that even when it’s not Republicans versus Democrats in whatever configuration it happens to be at that moment.”
The delays in the McGahn case have held up other Trump-era battles on congressional oversight that are still playing out in lower courts, including the House Ways and Means Committee’s 2019 lawsuit to obtain Trump’s tax returns from the IRS.
The Justice Department on Friday told a federal judge overseeing that case that it needs more time to negotiate with the House and stake out its legal position.
Nash, the Emory law professor, said the DOJ has to take into consideration both the interests of the executive branch and the Democratic Party’s desire to take on Trump in determining how to resolve the McGahn case.
“It’s a political calculation, and I think it’s a legal calculation as well,” he said. “If they can avoid having to get to a legal conclusion, they probably would see that as a better way out of this.”
Naomi Jagoda contributed.