WASHINGTON — The House Judiciary Committee sued on Wednesday to force the former White House counsel Donald F. McGahn II to testify before Congress, asking a federal judge to strike down the Trump administration’s claim that top presidential aides are “absolutely immune” from its subpoenas.
In a filing in the United States District Court for the District of Columbia, the Judiciary Committee identified Mr. McGahn as “the most important witness, other than the president, to the key events” at the center of its investigation into possible obstruction of justice by President Trump — behavior detailed by the special counsel, Robert S. Mueller III, that the committee said could warrant impeachment.
“The Judiciary Committee is now determining whether to recommend articles of impeachment against the president based on the obstructive conduct described by the special counsel,” the filing said. “But it cannot fulfill this most solemn constitutional responsibility without hearing testimony from a crucial witness to these events: former White House counsel Donald F. McGahn II.”
[Read the Judiciary Committee’s lawsuit.]
The House lawsuit signaled that more was at stake than the testimony of a single witness. It suggested that the Trump administration was seeking to establish a broad precedent shielding top presidential advisers from Congress, even those no longer working for the White House. And it urged the court to move quickly to preserve the House’s ability to consider impeachment before the current Congress ends in January 2021.
“The Judiciary Committee requires a substantial period in advance of that date to perform its constitutional duties,” the lawsuit said. “Every day that the Judiciary Committee is without McGahn’s testimony further delays its ability to pursue its inquiries on issues of national importance before the current Congress ends.”
The fight between House Democrats, the White House and Mr. McGahn has been building for months. The Judiciary Committee’s chairman, Representative Jerrold Nadler of New York, first issued a subpoena compelling Mr. McGahn’s testimony in April. The White House then intervened, advising Mr. McGahn that he was “absolutely immune from compelled congressional testimony” and directing him not to appear despite the subpoena.
Democrats want the judge not only to force Mr. McGahn to take the witness stand but also to altogether invalidate the concept of “absolute immunity,” a theory that has not been fully tested in the courts but has been used by administrations of both parties.
The case could take months or longer to wind its way through the courts, but the outcome could have broad ramifications for Congress’s oversight powers and for the president’s ability to shield his close advisers from legislative branch scrutiny.
The lawsuit was the first time that the House had initiated legal action against a witness in Mr. Mueller’s Russia investigation, but it added to an uptick in House legal activity to vindicate its oversight powers. Last month, the Ways and Means Committee filed a separate lawsuit seeking disclosure of Mr. Trump’s tax returns, and the Judiciary Committee asked a federal judge to grant it access to secret grand jury evidence related to Mr. Mueller’s investigation.
The Justice Department declined to comment on the lawsuit. William A. Burck, a lawyer for Mr. McGahn, said on Wednesday that his client would continue to follow Mr. Trump’s instruction unless a judge ruled that he must comply.
“People should not forget that Don McGahn is a lawyer and has an ethical obligation to protect client confidences, and as I have said before, Don does not believe he witnessed any violation of law,” Mr. Burck said. “When faced with competing demands from coequal branches of government, Don will follow his former client’s instruction, absent a contrary decision from the federal judiciary.”
Republicans on the Judiciary Committee accused Democrats of cutting off negotiations that could have resolved the dispute out of court. Representative Doug Collins of Georgia, the top Republican on the panel, said the majority was “only interested in the fight and public spectacle of an investigation, but not actually in obtaining any real information.”
The filing did note, however, that the Judiciary Committee and the White House had reached an agreement to allow lawmakers to review documents related to the Mueller case in Mr. McGahn’s possession.
Perhaps no government official was a more prominent witness in Mr. Mueller’s report than Mr. McGahn, who left the White House in late 2018. He spent more than 30 hours with the special counsel’s investigators.
Mr. McGahn was the central witness to two of the most important obstruction-of-justice episodes recounted in the Mueller report. Mr. McGahn told the special counsel that Mr. Trump ordered him to have Mr. Mueller fired in June 2017; Mr. McGahn refused and prepared to quit in protest, and Mr. Trump backed off. Later, when that firing attempt came to light, Mr. Trump tried to pressure Mr. McGahn into falsifying a piece of evidence denying that it had happened.
Democrats on the Judiciary Committee want badly to have Mr. McGahn recreate such episodes in a live hearing on Capitol Hill. Speaker Nancy Pelosi, who remains skeptical of pursuing impeachment, has repeatedly said that if Democrats are to proceed to impeachment, they must do so with the strongest possible case against Mr. Trump. Public testimony from Mr. McGahn and other witnesses to the president’s behavior would almost certainly be a part of any such case.
If the courts were to strike down the executive branch’s “absolute immunity” claim, it could also ease the path to public testimony about events after Mr. Trump took office from a host of other former top Trump aides. Those include Hope Hicks, a former White House communications director, John F. Kelly, a former White House chief of staff, and Reince Priebus, Mr. Trump’s first chief of staff, who also provided information to Mr. Mueller.
Presidents from both parties have claimed that their executive powers meant that top aides were “absolutely immune” from Congress’s demands, meaning they would not even have to show up to face questions about their official duties.
A Federal District Court judge rejected a claim of absolute immunity in a similar case in 2008 after the House Judiciary Committee sued President George W. Bush’s former White House counsel, Harriet Miers, for defying a subpoena. But because that dispute never reached an appeals court, the ruling does not count as a controlling precedent. In 2014, the Obama Justice Department produced a memorandum saying it disagreed with that ruling.
In making its claim over Mr. McGahn, the White House pointed to that 2014 memorandum as support. But the Judiciary Committee’s filing said the executive branch claim had “no grounding in the Constitution, any statutes or case law and never has been accepted by any court.”
Absolute immunity is not the same thing as executive privilege, a more firmly established power that can shield conversations between the president and his advisers. To date, Mr. Trump has not invoked executive privilege with regard to Mr. McGahn.
With Democratic support building in the House, Mr. Nadler has become increasingly vocal in recent weeks about his panel’s desire to at least advance an impeachment inquiry of Mr. Trump.
As he left for a congressional August recess, Mr. Nadler used the grand jury filing to declare that his committee had effectively already begun an impeachment investigation, even if the House had not voted to authorize such an inquiry. A few days later, Mr. Nadler said on national television that the president “richly deserves” impeachment for his conduct.
And on Monday, Mr. Nadler laid out a possible timeline for hypothetical impeachment proceedings, saying that the committee planned additional hearings for September and October and that with court decisions in its favor, it could recommend articles of impeachment within a few months.
“If we decide to report articles of impeachment, we could get to that late in the fall, in the latter part of the year,” Mr. Nadler said on MSNBC.
It was not clear whether that timeline was realistic. Democrats have struggled to get cooperation from relevant witnesses needed to build a public case, and even if lower courts quickly side with them now that they have started filing lawsuits, Mr. Trump can drag out the matter by filing appeals.
Michael S. Schmidt contributed reporting.