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McGahn Appeals Judge's Ruling that He Must Comply with House Subpoena, Could Lead to Impeachment Inquiry

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McGahn Appeals Judge's Ruling that He Must Comply with House Subpoena, Could Lead to Impeachment Inquiry

2019-11-27 14:02:141 Oct 2018 01:53 AM EST

By Laura Tucker, Staff writer; Image: Don McGahn (Image source: Gage Skidmore via Wikimedia Commons)

What was once a really big matter between the House Judiciary Committee and the White House has now become a much larger issue that could even extend into the impeachment inquiry. A federal judge was asked to decide if former White House counsel Don McGahn could be forced to obey his subpoena, and the ruling issued Monday contends he must obey it. But now he's not just appearing before the House Judiciary Committee — now he could potentially be brought in to testify in the impeachment inquiry as well. 

U.S. District Judge Ketanji Brown Jackson of Washington ruled that "no one is above the law," something said frequently in the Russia investigation as well as the impeachment inquiry. She ruled that Trump's top advisers cannot ignore subpoenas, going against the White House's claim that McGahn is "absolutely immune from compelled congressional testimony." Along with leading McGahn to possibly testify in the impeachment inquiry, it could also lead to a separation-of-powers precedent between the executive and legislative governmental branches.

The House Judiciary Committee initially filed in August to force McGahn to obey the subpoena, seeing him as the "most important" witness. This was after Trump blocked McGahn from appearing, believing that as a key presidential adviser, he couldn't be forced to testify or submit documents. 

But Jackson ruled on Tuesday that if McGahn intends to refuse to testify by using executive privilege, he must do it in person and question by question, not with one blanket statement. She found the Justice Department's claim of "unreviewable absolute testimonial immunity" to be "baseless, and as such, cannot be sustained."

"However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the president does not have the power to excuse him or her from taking an action that the law requires," she wrote. "Fifty years of say-so within the Executive branch does not change that fundamental truth." 

Democrats are trying to decide whether articles of impeachment should include the obstruction-of-justice allegations from former special counsel Robert Mueller's final report. He wrote in that document that Trump possibly committed obstruction when he asked McGahn to fire Mueller and again when he tried to cover it up and told the counsel to tell the press that he never did that.

House Intelligence Chair Adam Schiff (D-CA), who is leading the impeachment inquiry, said House investigators will send a report on Trump's conduct in the Ukraine scandal to the Judiciary Committee shortly after Congress returns from the Thanksgiving recess next week. He wrote that the White House's stonewalling of testimony could be a separate article of impeachment. 

House Judiciary Committee Chairman Jerry Nadler (D-NY), who had issued the McGahn subpoena, said in a statement: "Don McGahn is a central witness to allegations that President Trump obstructed Special Counsel Mueller's investigation. ... Now that the court has ruled, I expect him to follow his legal obligations and promptly appear before the Committee."

Jackson quoted a 2008 opinion when former President George W. Bush tried to block the testimony of his former counsel regarding the firing of U.S. attorneys. U.S. District Judge John D. Bates said the claim of "absolute immunity from compelled congressional process to senior presidential aides is without any support in case law." Eventually, the White House and House Judiciary Committee agreed to questioning behind closed doors with a public release of the transcript. The current Justice Department believes Bates was mistaken in his judgement. 

Jackson quoted Bates by saying the current administration's claim of immunity is "fiction" maintained "through force of sheer repetition" that has never gone through the "crucible of litigation." "Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings," she ruled. She added that the belief that the president can overrule current or former aides' "own will to testify ... is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained."

The judge also delivered her thought that "it is hard to imagine a more significant wound than such alleged interference with Congress' ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States." 

The DOJ filed a notice of appeal early Tuesday and asked the court to stay Jackson's order until it is resolved. Civil division trial attorney Steven A. Myers filed a brief for the department, stating its client, McGahn, was asking for a review by the U.S. Court of Appeals for the District of Columbia.

"For only the second time in our history, a court has ordered a senior presidential advisor to testify before Congress," wrote Myers, reflecting on the 2008 decision. "This case raises the same significant and difficult separation-of-powers questions presented in Miers, and no binding precedent has addressed those issues since." He  added that "just as in Miers, this Court's order should, therefore, be stayed to ensure that Defendant has an opportunity to seek meaningful appellate review." 

Myers reflected on a 2014 DOJ opinion that stated a director of the Obama administration's Office of Political Strategy and Outreach didn't have to comply with a House Oversight Committee subpoena. "This rule is the longstanding view of the Executive Branch, consistently reaffirmed by administrations of both political parties for nearly five decades," he wrote. "As one judge recently observed in a different context, "Could it really be wrong if both administrations agree on it?"

McGahn's attorney, William A Burck, said his client doesn't believe he witnessed a violation of the law and that the president told him to cooperate with Mueller but not testify without an agreement between the White House and the committee. 

In a statement Monday, the White House said the decision "contradicts longstanding legal precedent established by administrations of both political parties. We will appeal and are confident that the  important constitutional principle advanced by the administration will be vindicated."

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