System Breakdown: How Trump Ran Out The Clock On His Legal Pursuers

WASHINGTON, DC - DECEMBER 12: Former White House counsel Don McGahn reacts during a discussion on "Constitutional Questions and Political Struggle: Congress' Role in Oversight and National Security" December 12, 201... WASHINGTON, DC - DECEMBER 12: Former White House counsel Don McGahn reacts during a discussion on "Constitutional Questions and Political Struggle: Congress' Role in Oversight and National Security" December 12, 2019 at the NYU Global Academic Center in Washington, DC. McGahn spoke on the view from the executive branch perspective. (Photo by Alex Wong/Getty Images) MORE LESS
February 17, 2021 5:10 p.m.

At a press conference Saturday after the Senate acquitted former President Donald Trump of inciting an insurrection, the House impeachment manager Del. Stacey Plaskett (D-VI) was asked why the prosecution against Trump hadn’t fought harder to include witness testimony during the impeachment trial. 

Plaskett argued that the team had established the facts of the case without witnesses — and besides, she said, the process of dragging witnesses before Congress could cost “months of litigation.” 

“They are still litigating McGahn in Impeachment One, a year later,” she said, referring to former White House Counsel Don McGahn. 

That name, McGahn, has become a short-hand for a particularly Trumpian legal strategy that proved remarkably effective at stymying oversight during the Trump years: Delay, delay, delay. 

White House Testimony

You’d be forgiven for forgetting the McGahn case. The House Judiciary Committee first subpoenaed the former White House lawyer in April 2019, seeking his testimony about what appeared to be Trump’s repeated attempts to obstruct Justice during the Mueller probe. The White House instructed McGahn to ignore the subpoena in May. The House sued in August.

A federal judge ruled in November that McGahn had to testify. The Justice Department appealed and asked for a stay, which the judge rejected. But an appeals court panel overturned the lower court’s decision in February 2020, leading to months of back and forth from the full appeals court until, eventually, the same three-judge panel decided that Congress would need to pass a law for the subpoena to be actionable. The full appeals court agreed in October to hear arguments over that decision. Arguments will be heard… next week. 

The constant legal gamesmanship was itself a victory: Two years, two impeachments, and one fraught transfer of power later, we still haven’t heard testimony from Trump’s first top White House lawyer.

The strategy wasn’t a secret. On multiple occasions, government lawyers cited outside developments — other litigation, for example, or political circumstances — to argue for delaying the legal proceedings. In December 2019, they noted the House’s impeachment of Trump days earlier. 

“Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial,” the DOJ told the D.C. Court of Appeals. “That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial.”

When, during the impeachment, lawyers for the House noted that the President was trying to have it both ways — arguing in court that certain matters could be decided by impeachment, and arguing in the impeachment proceedings that those same matters were best left to the courts — the Justice Department turned that argument on its head.

“We previously warned that the House seeks to use this litigation to support impeachment,” they wrote. “Now, the Committee seeks to use the impeachment proceedings to support this litigation.”

Tax Records Under Wraps

The same pattern played out over and over again during Trump’s presidency, including in several fights over his financial records. 

In May 2019, for example, then-Treasury Secretary Steve Mnuchin wrote that he would ignore a House Ways and Means Committee subpoena for Trump’s tax records because the request lacked “a legitimate legislative purpose.”

But that committee wasn’t alone: The Financial Services and Intelligence committees subpoenaed Deutsche Bank for records related to Trump’s finances, and the House Committee on Oversight and Reform subpoenaed his accounting firm, Mazars USA. They all went to court. 

The delays built on each other. The Ways and Means fight was paused early last year as the parties waited for a development in the precedent-setting McGahn case. 

“It feels like a moving target,” a federal judge told the Ways and Means Committee plaintiffs in March, referring to the shifting schedule. 

The other committee fights made their way over several months to the Supreme Court, which in July last year sent the case back to circuit court for review. 

The House persisted, asking Chief Justice John Roberts for immediate judgements and noting that the committees’ window to litigate their demands for financial records, then analyze and potentially write legislation based on those documents “diminishes by the day.”

Trump’s lawyers, with whom the court ultimately agreed, responded by pointing to the delay that had already been caused by the legal fight thus far. 

“The Committees voluntarily stayed enforcement of the subpoenas for more than six months as these cases made their way through the lower courts,” they wrote. “They should not be heard to complain that the proceedings are moving too slowly.” 

A separate state-level case for Trump’s financial records, pursued by Manhattan’s district attorney, landed at the Supreme Court twice in 2020 thanks to the efforts of Trump’s private lawyers. The first time around, they argued that as president, he enjoyed total immunity from criminal investigation and prosecution — even if he decided to shoot someone on Fifth Avenue. 

The Supreme Court rejected that argument but did allow that Trump could “raise further arguments as appropriate” in lower courts.

And Trump did: The second time around, rather than saying he was completely immune, the President’s lawyers argued in September that the prosecutor’s request was an example of overly broad presidential harassment. Asked if there was any version of a request for documents that would not be “over broad,” Trump’s lawyer said simply “No.”

The appeals court, again, ruled against Trump and, again, Trump appealed. The high court has not yet rendered its second decision on the matter — and the public didn’t see any Trump records before Election Day.

The Ticking Presidential Clock 

Trump’s presidency itself offered an ever-closing window of time on accountability issues — a fact his lawyers repeatedly used to their advantage. 

The complaints he faced over alleged Emoluments Clause violations, for example, are no longer legally viable. 

The constitutional language, which prevents presidents from receiving gifts or other compensation from foreign heads of state, was pushed to its limit during Trump’s tenure. 

Multiple lawsuits alleged he violated the Constitution via the revenue he received from his various hotels, and, after a familiar pattern of months of litigation, the matter reached the highest court in the land. 

But by then, Trump had just weeks left in office. The acting solicitor general for the United States, representing the president, recommended that the court simply wait until Congress had certified Joe Biden’s win, then dismiss the cases as moot. 

Four days after Trump left office, that’s just what the court did, vacating appeals courts’ judgements and remanding the cases back to those courts, with instructions to dismiss them as moot.

Other matters remain outstanding, such as E. Jean Carroll’s defamation lawsuit against the former president. Carroll filed the suit in late 2019, after Trump denied Carroll’s sexual assault allegation and called Carroll a liar.

Trump’s team initially tried a familiar move, seeking to delay the case pending the results of yet another case against him, brought by the former “Apprentice” contestant Summer Zervos. But a New York judge rejected that attempt in August, moving Trump to change tactics.

The following month, September 2020, the Justice Department attempted to elbow its way into the case, arguing, surprisingly, that Trump should be allowed to approach the case not as a private citizen, but as the President of the United States: Battling a defamation suit over a denied rape allegation was, according to the DOJ, presidential business.

Days before the 2020 presidential election, a federal judge smacked that argument down, too. Trump appealed later in November, and still, we’re waiting for answers.

Carroll, who seeks to collect a deposition and DNA sample from Trump, has said she will wait for the appeal process to play out.

In her case — and for millions of others who want answers from the former president — the end is nowhere in sight.

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