Following the conclusion of the two-year special counsel probe, the Democrat-led House Judiciary Committee issued a subpoena demanding documents and testimony from former White House Counsel Don McGahn, an oft-mentioned figure in Robert Mueller’s final report.
After fighting the subpoena in court, the White House received a disagreeable shock on Monday when an Obama-appointed judge ruled that McGahn must comply with House subpeonas. However, the judge’s decision still allows McGahn to claim “executive privilege” in-person to avoid answering specific questions, Politico reported.
“Accordingly, just as with Harriet Miers before him, Donald McGahn ‘must appear before the Committee to provide testimony, and invoke executive privilege where appropriate,'” U.S. District Court Judge Ketanji Brown Jackson wrote.
Judge disagrees with White House
Judge Jackson issued a 118-page ruling dismissing the Trump administration’s argument that McGahn didn’t have to appear before the committee because he was covered under an “absolute immunity” that extended to those within the president’s inner circle. The “immunity” argument is a long-standing claim that has been used by numerous prior administrations but has never been definitively ruled on.
Justice Department lawyers also argued that the federal courts had no business getting in the middle of a dispute between the other two branches of government, something Attorney General Bill Barr touched upon in a recent speech, Politico noted.
“The framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches,” Barr said in a speech to the Federalist Society. “The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts.”
Judge Jackson disagreed, however, and likened President Donald Trump to a potentially tyrannical “monarch” in her opinion. “DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards,” she wrote. “In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny.”
In another subtle shot at the president, the judge wrote of “immunity” being extended to former White House aides: “[I]t would seem that if one’s access to the Oval Office is the reason that a categorical exemption from compelled congressional process is warranted, then that trump card should, at most, be a raincheck, and not the lifetime pass that DOJ proposes.”
Executive privilege still allowed
Judge Jackson refrained from addressing the issue of executive privilege and left open the door for McGahn to avoid providing testimony on a question-by-question basis.
Nevertheless, Politico noted that the judge’s ruling has significant implications for the ongoing impeachment inquiry in which the White House has blocked a number of senior officials from testifying before Congress, some of whom have been subpoenaed and have legal battles pending.
Should this ruling stand, judges in the other cases could cite it as precedent to force other senior White House officials — such as Secretary of State Mike Pompeo, Energy Secretary Rick Perry, Acting Chief of Staff Mick Mulvaney, and former National Security Adviser John Bolton — to testify before the House Intelligence Committee.
McGahn’s lawyer said his client would comply with the subpoena unless the judge’s ruling was appealed and a stay was granted, Breitbart reported. Justice Department lawyers immediately filed an appeal of Judge Brown’s decision and requested a stay on enforcement. It could be several months before a higher court weighs in and McGahn actually has to appear for testimony before Congress.