Former White House counsel Donald McGahn must comply with House subpoena, judge rules

[BumRushDaShow]

Last edited Mon Nov 25, 2019, 08:28 PM - Edit history (1)

Source: Washington Post



Former Trump White House counsel Donald McGahn must comply with a House subpoena, a federal court ruled Monday, finding that top presidential advisers cannot ignore congressional demands for information and raising the possibility that McGahn could be forced to testify as part of the impeachment inquiry. , U.S. District Judge Ketanji Brown Jackson of Washington, found no basis for a White House claim that the former counsel is "absolutely immune from compelled congressional testimony," likely setting the stage for a historic separation-of-powers confrontation between the government's executive and legislative branches.

The House Judiciary Committee went to court in August to enforce its subpoena for McGahn, whom lawmakers consider the "most important" witness in whether Trump obstructed justice in special counsel Robert S. Mueller III's investigation of Russian interference in the 2016 U.S. election. President Trump blocked McGahn's appearance, saying McGahn had cooperated with Mueller's probe, was a key presidential adviser and could not be forced to answer questions or turn over documents. Jackson disagreed, ruling that if McGahn wants to refuse to testify, such as by invoking executive privilege, he must do so in person and question by question.And in reaching this conclusion,

"[T]he Court holds only that [McGahn] (and other senior presidential advisors) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute," Jackson wrote, quoting a similar ruling by a Republican appointed judge in 2008 in a case involving former George W. Bush counsel Harriet Miers.. Like Miers, Jackson wrote, "Donald McGahn 'must appear before the Committee to provide testimony, and invoke executive privilege where appropriate."

The House lawsuit against McGahn was the first filed by Democrats to force a witness to testify since they retook control last year. The Justice Department, which is representing McGahn, is expected to appeal Jackson's ruling.

Read more: https://www.washingtonpost.com/local/legal-issues/former-white-house-counsel-donald-mcgahn-must-comply-with-house-subpoena-judge-rules/2019/11/25/6de26cc8-018d-11ea-8bab-0fc209e065a8_story.html

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Gothmog - link to opinion - https://www.politico.com/f/?id0000016e-a4c4-d442-a5ef-fee4e04c0000

Original article and headline -

Former White House counsel Donald McGahn must comply with House subpoena, court rules in case that could affect impeachment inquiry

By Washington Post Staff
November 25, 2019 at 5:55 p.m. EST

The finding came in a case testing whether top presidential advisers have absolute immunity from congressional demands for information.
The ruling in a lawsuit brought by the House Judiciary Committee has implications for witnesses that could be sought in the impeachment inquiry and for a separation-of-powers confrontation between the executive and legislative branches.

This is a developing story. It will be updated.

https://www.washingtonpost.com/news/politics/wp/2019/11/25/former-white-house-counsel-donald-mcgahn-must-comply-with-house-subpoena-court-rules-in-case-that-could-affect-impeachment-inquiry/

[sheshe2]

1. Sweet!

[Gothmog]

2. Yeah

Link to tweet

[bluestarone]

3. GREAT so if i got it right

If he doesn't show, he would be in CONTEMPT of a COURT order? ( I know it will be appealed)

[FakeNoose]

33. That would be awesome

[ancianita]

4. Exciting. This moves Mueller's findings forward, and it could seriously change Bolton's position.

[LudwigPastorius]

17. I believe Bolton joined Charles Kupperman's lawsuit.

That case is being heard by a different judge, and could have a very different outcome.

[ancianita]

18. But this judge's ruling statement must be considered by that judge as precedent. There's the

judicial claim on record that constitutional interests of the nation back the absolute authority of subpoenas, no exceptions.

I don't see the other court bringing an argument to SCOTUS that justices would privilege over Judge Jackson's ruling, especially given the timeline of rulings that Trump's administration keeps losing.

[CaptainTruth]

22. I think that's why the Kupperman ruling was delayed, to get the McGahn ruling first.

I read that in an article, the judge in the Kupperman case was going to wait for the McGahn ruling, because it would be the precedent.

[ancianita]

23. So a different ruling is unlikely. It was a clever-by-half move by Bolton, which his judge ignored

[LudwigPastorius]

38. The DOJ and House lawyers asked for a delay...

in the Kupperman suit because of scheduling problems. They couldn’t appear for Kupperman because they were already tapped to argue the McGahn case in a different courtroom.

[LudwigPastorius]

39. You are correct.

I was under the mistaken impression that the Kupperman suit was filed in a different federal district.

[unblock]

5. He'll show up and invoke executive privilege on every question of substance.

[getagrip_already]

6. there are 120 pages of guidance on what can qualify for ep.....

it may be hard for him to do that.

[jberryhill]

7. They aren't going to resolve disputes on scope right there, though

https://drive.google.com/file/d/1pRMwDMJQtUTt6I7i1LZJ5_XeERAeetvj/view

[Perseus]

8. How hard is it to be true to your country, to love your country, to be a true patriot?

I don't understand it...I see trump and I want to vomit, I have such a hard time understanding how anyone can have any loyalty to that piece of crap.

[Mr.Bill]

11. You have to understand these are people

who would eat their own children if it meant money in their pockets.

[unblock]

35. And they would be offended if you even gasped.

[Corgigal]

36. I was just listening to Talking Feds podcast.

It was mention that Bolton is a coward. He still wants to play in conservative circles, plus he has the book coming out. He also wants to appear on fox “news”. Basically, he’s a worthless american, like most republicans.

[Evolve Dammit]

21. Good prediction. Hope it's not correct, but sounds very plausible.

[Mr.Bill]

9. I hope I'm wrong, but the only explanation(s) I can think of

for how these people are acting is 1. They have been assured the fix is in with the SCOTUS and/or 2. There will be pardons for all federal crimes, and they can buy the state level DAs. Trump has been buying them for years.

[Gothmog]

10. Neal Katyal-Ruling is a win for Nancy Pelosi and a major loss for trump

Link to tweet

[a kennedy]

12. So I can finally get excited about this??? Or is it going to be another oh well, they'll

take it to a higher court???

[budkin]

16. CNN says the Justice Dept will most likely appeal so yeah

Don't get excited just yet.

[KPN]

32. Why is the DOJ appealing or have the standing to appeal?

McGahn was White House attorney, not DOJ.

[cstanleytech]

13. Gotta wonder on what planet did they think that they could

obstruct Congress from proceeding with it's duty as outlined by the Constitution.
Hopefully there will be criminal charges for it though.

[greatauntoftriplets]

14. CNN just reported that Spanky's appealing the decision.

Great decision, otherwise.

[FailureToCommunicate]

15. THANK YOU Judge Ketanji Brown Jackson! I'll have two large classes of wine tonight!

[gab13by13]

19. The judge not only said that McGahn must testify,

more importantly the judge said that McGahn broke the law by not testifying. Sure this will be appealed but Dems should win on appeal.

Here's what I am asking all of the lawyers here, why don't Dems issue more subpoenas, and if people refuse to show up, then Dems need to say now that they will consider this obstruction of Congress and pursue the cases right up to the Supreme Court?

Threaten to charge anyone who refuses a subpoena. So will the time run out when a new House is seated?

[BumRushDaShow]

24. There's an accepted standard practice that Congress uses to have people testify

where they "invite" first and then if refused and they really want them there, then they will subpoena and compel.

At this juncture, the Democrats' original strategy was to not get completely bogged down in the courts because the election would come and go before the appeals were exhausted. Schiff has pretty much already declared that their refusals could be counted as an obstruction charge (it'll be up to the Judiciary Committee to finalize those charges).

[cstanleytech]

40. Well should Trump fail to win another term everyone that refuses could face criminal charges once

the DOJ is back in the hands of someone that is not a corrupt toad who's sole goal is to aid in obstructing Congress.

[Gothmog]

20. Here is a link to the opinion

I have scanned the opinion quickly and it is well written https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000

Finally, the Court turns to DOJ’s contention that, quite apart from the accepted
ability of a President to invoke executive privilege to protect confidential information
during the course of aides’ testimony before Congress, as a matter of law, it is the
President who controls whether such aide provides any testimony whatsoever. During
the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke
absolute testimonial immunity with respect to current and former senior-level aides
belongs to the President. (See, e.g., Hr’g Tr. at 42:15–16 (“[T]he President owns the
privilege here. So he is the owner of Mr. McGahn’s absolute immunity from
compulsion[.]”), 43:4–6 (“[T]he President owns the privilege as to former officials with
the same vigor with which he owns it to current officials.”), 125:5 (maintaining that
immunity is “the President’s to assert”).) And when asked whether this power of the
Executive is limited to such aides’ communications with Congress in particular, or also
extends to preventing his aides from speaking to anyone else (e.g., the media) even
after their departure from the White House, counsel indicated that while the Executive
branch has “not taken a position on that,” it was “definitely not disclaiming that.” (Id.
at 43:12–16.) This single exchange—which brings to mind an Executive with the power
to oversee and direct certain subordinates’ communications for the remainder of their
natural life—highlights the startling and untenable implications of DOJ’s absolute
testimonial immunity argument, and also amply demonstrates its incompatibility with
our constitutional scheme.
Stated simply, the primary takeaway from the past 250 years of recorded
American history is that Presidents are not kings. See The Federalist No. 51 (James
Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville,
Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans.,
Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound
by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of
liberty, it is indisputable that current and former employees of the White House work
for the People of the United States, and that they take an oath to protect and defend the
Constitution of the United States. Moreover, as citizens of the United States, current
and former senior-level presidential aides have constitutional rights, including the right
to free speech, and they retain these rights even after they have transitioned back into
private life.
To be sure, there may well be circumstances in which certain aides of the
President possess confidential, classified, or privileged information that cannot be
divulged in the national interest and that such aides may be bound by statute or
executive order to protect. But, in this Court’s view, the withholding of such
information from the public square in the national interest and at the behest of the
President is a duty that the aide herself possesses. Furthermore, as previously
mentioned, in the context of compelled congressional testimony, such withholding is
properly and lawfully executed on a question-by-question basis through the invocation
of a privilege, where appropriate. 34 As such, with the exception of the recognized
restrictions on the ability of current and former public officials to disclose certain
protected information, such officials (including senior-level presidential aides) still
enjoy the full measure of freedom that the Constitution affords. Thus, DOJ’s present
assertion that the absolute testimonial immunity that senior-level presidential aides
possess is, ultimately, owned by the President, and can be invoked by the President to
overcome the 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.

[NBachers]

26. Thank you- I love reading this.

"Presidents are not kings"

[Pepsidog]

27. Nicely done. Thank you.

[BumRushDaShow]

29. Thank you!

Will add to the OP (had been waiting for someone to post it).

[Mersky]

25. Good!

[Doormouse]

28. 120 Page Opinion

that tells us that they are compelled to honor the subpoena and appear, but can invoke Executive Privilege when questioned at the hearing.

[Kablooie]

30. How many appeals does he get?

Seems there’s always another appeal available in Trump related cases.

[warmfeet]

31. Let us see

what actually happens.

[SKKY]

34. I think this is what Bolton was waiting for....

...I imagine that shoe will drop fairly soon.

[Mr.Bill]

37. Bolton is writing a book.

Hen doesn't want to give away any information for free.

[duforsure]

41. Now he'll start another tweet campaign

To again intimidate , threaten, and pressure witnesses, and conspire with others to do this , again. Its his pattern. Has he done this to Reps., and Senators, and Supreme Court Justices, trying to corrupt them for self protection? I'd bet on it. Has he called Roberts?

[Gothmog]

42. Update-judge denied stay during appeal

Link to tweet

[BumRushDaShow]

43. Thanks for the update

I was thinking she was going to decide late last week on that but of course there was the holiday....

[Gothmog]

44. Judge flays DOJ, calling its arguments 'disingenuous' & 'unacceptable mischaracterization

Link to tweet

[BumRushDaShow]

45. Thank you again!

Just got done reading that. She broke their arguments down and tore them to pieces one by one.

[Gothmog]

46. Here are some great comments from Neal Katyal

Link to tweet