Tuesday, November 26, 2019
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday that former White House Counsel Don McGahn must comply with a subpoena issued by the House Judiciary Committee and testify before the Committee. The ruling rejects the sweeping claim that high-level presidential advisors enjoy categorical testimonial immunity.
At the same time, the court held that McGahn could assert appropriate privileges (like executive privilege) to specific questions from the Committee.
The ruling deals a sharp blow to the Trump Administration and its attempts to categorically shield certain White House officials from testifying before Congress. It applies directly to McGahn, of course; but the reasoning applies equally, or even with greater force, to House testimony by senior presidential advisors in the impeachment inquiry. (Why "or even with greater force"? Because the House may be on even firmer ground in issuing any subpoenas in the course of an impeachment inquiry.)
The administration will surely appeal. (DOJ is representing McGahn and presented arguments on behalf of the executive branch.) As a result, we're unlikely to see McGahn testify anytime soon. If the parties continue to press the issue, it'll surely go to the Supreme Court. (The 2008 Miers case, which the court said was "on all fours" with this one, didn't go up on appeal, because the parties settled. That could happen here, too.)
The case arose when the Committee sued McGahn to enforce its subpoena against him to testify in its investigation into whether President Trump and his associates engaged in misconduct in the run-up to the 2016 presidential election. DOJ, representing McGahn, argued that McGahn was a high-level presidential advisor who enjoyed absolute testimonial immunity before Congress.
The court ruled that it had jurisdiction over the case and then rejected DOJ's sweeping claim of immunity. In short, the court held that the issue was already decided by Judge Bates in 2008, in Committee on Judiciary v. Miers. Here's a nice summary (pp. 41-42 of the opinion):
Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts [as to lack of jurisdiction], congressional committee, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena-enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority--when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States--then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution's framework as the Framers envisioned it is the President's purported power to kneecap House investigations that Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.
Luckily for this Court, an existing precedent that is on all fours with the instant matter (Miers) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President's senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations . . . .