Jim Jordan Protests Nadler’s Plan to Reissue McGahn Subpoena

Then-White House Counsel Don McGahn speaks at the Conservative Political Action Conference (CPAC) at National Harbor, Maryland, on Feb. 22, 2018. REUTERS/Kevin Lamarque

House Judiciary ranking member Jim Jordan (R-Ohio) has sent a letter to the committee chair Jerrold Nadler (D-N.Y.) to object to plans to reauthorize a subpoena for former White House counsel Don McGahn’s testimony.

“We are disappointed that you failed to consult with Republicans on this subpoena as you promised. We are also disappointed that you are continuing to misuse limited Committee resources on your fanatical obsession with attacking President Donald Trump,” Jordan wrote in his letter to the committee’s chair.

His letter comes after Nadler issued a memorandum on Wednesday informing committee members of his intent to reauthorize a subpoena to compel McGahn to testify before the panel in the next congressional term.

In his memo obtained by media outlets, Nadler argued that McGahn’s testimony is “essential” to understand issues regarding allegations that President Donald Trump attempted to interfere with special counsel Robert Mueller’s investigation into claims of Russian interference in the 2016 presidential election.

House Democrats have launched a slew of investigations since 2019, which included the subpoena of McGahn in an effort to find information that could lead to the impeachment of the president.

The White House blocked McGahn’s appearance in May, asserting executive privilege over the documents. This prompted House Democrats to subsequently sue McGahn in August 2019 in an attempt to enforce the subpoena.

Litigation over the subpoena is still ongoing with a full federal appeals court intervening twice in the matter. The full D.C. Court of Appeals in October 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, in an order, set a rehearing for Feb. 23, 2021, and vacated the three-judge panel’s August 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).

Earlier this 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.

In his letter, Jordan accused Nadler of breaking his promise to “avoid the use of unilateral subpoenas wherever possible” and to consult the Republican members on the committee when issuing subpoenas.

“Your memorandum today breaks your promise by announcing your decision to subpoena Mr. McGahn unilaterally without an opportunity for Member discussion or any public transparency,” Jordan wrote.

He said that if Nadler insists on issuing the subpoena, he should allow other Judiciary committee members to evaluate the necessity of the subpoena when Congress resumes in January.

“For too long, you have allowed your oddly personal obsession with President Trump to cloud the Committee’s work. It is time that you stop. For all these reasons, I object to you reissuing a subpoena to Mr. McGahn and request an in-person business meeting in the 117th Congress,” Jordan wrote.