No Absolute Executive Privilege, Rules Judge

Ken AshfordL'Affaire Ukraine, Trump & Administration, Trump ImpeachmentLeave a Comment

It might seem like ages ago that former White House Counsel Don McGahn blew off the House Judiciary Committee’s subpoena seeking his testimony related to the Mueller report. That’s because, well, it was ages ago. On Monday evening, a federal judge resolved the dispute between the executive and the legislature. And D.C. District Court Judge Ketanji Brown Jackson’s nearly 120-page ruling couldn’t have gone better for House Democrats. But the ruling could have yet-unknown implications for the House’s impeachment inquiry… or, not.

Not only did Jackson order McGahn to testify … but she also tore the White House’s “absolute immunity” claims to shreds. She called DOJ’s argument that current and former presidential advisers are “immune” from congressional testimony “a fiction.” Jackson, an Obama appointee, rebuked the unitary executive theory that often guides the Trump White House and DOJ.

“Compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” she concludes.

The Justice Department, which is representing the former White House counsel in the case, quickly announced plans to appeal, and the White House decried the ruling in a statement. McGahn’s lawyer said his client will comply with Jackson’s order to appear unless a court issues a stay pending appeal.

Jackson accused the Trump administration of “emasculating” the House by trying to thwart its ability to seek redress from the courts when subpoenas are ignored. The judge quoted from “The Federalist Papers,” specifically No. 51 by James Madison and No. 69 by Alexander Hamilton, along with Alexis de Tocqueville’s “Democracy in America,” as she rejected the administration’s argument that White House senior staff are “absolutely immune.”

Trump has cottoned to describing his authority as “absolute.” He has publicly declared his intention to stonewall and ignore all subpoenas. White House counsel Pat Cipollone said in an Oct. 8 letter that the administration would not cooperate in any way with the House’s inquiry into whether the president abused his power vis-a-vis Ukraine.

Some variant of the word “absolute” appeared 124 times in Jackson’s opinion. She picked apart each of the Justice Department’s arguments with often elegant prose and laid out a standard for compliance that would apply just as much to, say, former national security adviser John Bolton as McGahn. She apparently wrote this opinion knowing that her decision would be appealed, and the case could eventually wind up before the Supreme Court. Some Democrats hope that her ruling, in the meantime, could embolden other current or former Trump administration officials to comply with subpoenas and appear for depositions.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote. “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.”

The Trump administration expressed frustration with the order, saying it “contradicts longstanding legal precedent established by administrations of both parties,” according to a statement from White House press secretary Stephanie Grisham. (It does not contradict longstanding legal precedent)

What does this mean for impeachment? The short answer is… probably not much. DOJ has already said it will appeal the decision, and Jackson’s ruling is likely to be stayed pending appeal. House Democrats are showing no signs of pumping the brakes on their impeachment inquiry, and they’ve repeated over and over that they believe they have more than enough evidence to move forward. Moreover, John Bolton and Mick Mulvaney aren’t likely to defer to Jackson’s ruling. AND… even if McGahn is compelled to testify before the House wraps up its impeachment inquiry, he could still assert executive privilege, as Jackson noted in her ruling Monday.