On Tuesday, former White House counsel Don McGahn declined once again to appear before the House Judiciary Committee, this time defying the committee’s subpoena to testify. The committee’s chairman, Jerry Nadler, vowed that he and his colleagues “will hear Mr. McGahn’s testimony, even if we have to go to court to secure it.”
Count me as skeptical that the courts will ultimately compel McGahn to testify. Nadler declared, categorically, that “when this Committee issues a subpoena—even to a senior presidential advisor—the witness must show up,” but he has simply no basis for that confident legal opinion. No court has ever held that all presidential advisors must testify when subpoenaed. The closest thing Nadler can claim for precedent is a single federal judge’s decision in 2007, a decision that (like all trial-court decisions) is not a binding precedent. Indeed, in that case, the trial judge’s novel opinion never actually went into effect; the D.C. Circuit promptly blocked the judge’s decision pending further proceedings, before the entire dispute was extinguished by a voluntary settlement among the parties days before the next presidential administration.