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Lawyers for the Justice Department during the Trump administration, however, continued to fight the subpoena on other legal grounds, arguing that Congress had no “cause of action” that allowed it to sue the executive branch. (The executive branch took this position under administrations from both sides, and the Justice Department said it was “ready to continue” the argument as intended if the court rejected its delay request.)
The dispute is further complicated by the fact that there are so many participants – House Democrats, Mr. McGahn, the Biden administration and potentially Mr. Trump. The former president was not a party to the lawsuit, but he could try to intervene and assert executive privilege – yet another question that has yet to be decided on the matter – if the executive branch under Mr. Biden withdrew from the case.
Patrick F. Philbin, a former White House deputy attorney who is one of those appointed by Mr. Trump to deal with residual issues related to the presidential files, declined to comment.
William A. Burck, an attorney for Mr McGahn, has previously said his client intends to defer to the president’s instructions, pending a final court decision. A person familiar with the deliberations said Mr. Burck had not taken a position on what Mr. McGahn would do if Mr. Biden asked him to speak to Congress, but Mr. Trump still told him not to do so. .
Stuart F. Delery, a deputy White House attorney, said in an interview that negotiations are still preliminary but that the Biden administration would like more time to try to resolve the dispute while preserving “institutional interests related to the presidency ”.
There are few legal precedents. A rare and limited guide is a 1977 case, Nixon v. General Services Administration. In it, the Supreme Court ruled that Richard M. Nixon could assert claims of executive privilege on official White House documents even though he was no longer president – but that also weighed that claim against the contrary view of the then incumbent president. , Jimmy Carter.
That dispute, however, centered on the control of Nixon-era White House documents, not a subpoena for testimony from a former lawyer. Another question is how attorney-client privilege works for a former White House lawyer when the presidency changes hands – and what if Mr. Trump files a bar ethics complaint after the Mr. McGahn’s legal license if he cooperated with the House at Mr. Biden’s request but over Mr. Trump’s objections.
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