House attorneys have argued that they're at an impasse with the Justice Department over obtaining McGahn's testimony, which they have been seeking since special counsel Robert Mueller revealed in April that he was a central witness to potential obstruction of justice by President Donald Trump. McGahn refused to comply with a subpoena for his testimony in May and the Judiciary Committee filed suit in July, declaring that his testimony is crucial to determine whether the House should file articles of impeachment against Trump. Since then, sporadic talks with the Justice Department have reached no conclusion.
DOJ argues that the House's impeachment inquiry is "different" than the Judiciary Committee's pursuit of McGahn, even though Pelosi has blessed the panel's pursuit of potential articles of impeachment based on Mueller's findings.
The Justice Department's suggestion that talks were ongoing in October is misleading, a source briefed on the discussions told POLITICO.
"We have an obligation to try to reach an accommodation, even now," the source said, "but the White House has only ever discussed terms they know are unacceptable to us."
In their most recent filing, lawyers for the House cited Cipollone's Oct. 8 letter as evidence that talks were stalled.
"In order to fulfill his duties to the American people, the Constitution, the Executive Branch, and all future occupants of the Office of the Presidency, President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances," Cipollone wrote, in a letter that was packed with political broadsides but contained little legal argument to reject the House's impeachment probe.
Despite Cipollone's heated language, the Justice Department claimed talks over McGahn's testimony were far from at an impasse, had been revived on Oct. 4 and continued throughout the month. They had reached an agreement to obtain documents in McGahn's possession, the DOJ attorneys said. Intervention by a court now would be an unnecessary incursion in a case that has significant ramifications for the balance of power between Congress and the executive branch, the attorneys said.
Democrats have been livid over DOJ's contention that senior White House officials have "absolute immunity" from testifying before Congress. DOJ has argued that requiring McGahn's testimony would imperil the ability of presidents to perform their duties and weaken the executive branch permanently. But Democrats say the argument is bogus, noting that the Supreme Court permitted the Nixon tapes to be revealed, a far more significant intrusion on private presidential discussions than speaking to McGahn would be.
Among the sticking points: House Democrats have long wanted McGahn to testify publicly, while the White House has proposed a closed-door interview. The Justice Department now claims that the Judiciary Committee has expressed openness to a private interview with McGahn, which the lawyers call "a marked change from the Committee's prior position that it would not consider anything other than public testimony."
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