Donald Trump’s previous White House counsel Don McGahn was heavily involved in the campaign behind Justice Anthony Kennedy retiring and the Supreme Court’s most conservative Justice Brett Kavanaugh filling his chair. The House Intelligence Committee subpoenaed McGahn to testify, but he has been fighting it in court. Finally, the wheels of justice have begun to turn.
It has always been true that the Legislative Branch watches for Executive Branch excesses. U.S. District Judge Ketanji Brown Jackson said that there was no basis for the White House to assert absolute immunity “from compelled congressional testimony.” The judge also said famously that there was no valid reason for McGahn to not testify, according to The Washington Post:
‘Presidents are not kings.’
As expected, he DOJ did not stop there. It filed a 29-page motion before the U.S. Circuit Court of Appeals for the D.C. Circuit asking for a stay to the court’s ruling pending appeal. The DOJ wrote that this was similar to a 2008 decision. In that case, a federal judge found against the George W. Bush White House counsel Harriet Miers. She was not allowed to ignore a House subpoena. However, in that case, it was settled before a decision from the court came down.
The Department of Justice civil division appellate attorney Martin Totaro wrote:
‘Only once before in our Nation’s history has an Article III court attempted to compel a close presidential advisor to appear and testify before Congress. In that case … this Court not only granted a stay pending appeal but took the unusual step of publishing a precedential opinion granting the stay, explaining that the dispute was “of potentially great significance for the balance of power between the Legislative and Executive Branches.”‘
Civil Division trial attorney Steven Myers wrote that Mier’s case was the same:
‘This case raises the same significant and difficult separation-of-powers questions presented in Miers, and no binding precedent has addressed those issues since. Just as in Miers, this Court’s order should therefore be stayed to ensure that Defendant has an opportunity to seek meaningful appellate review.’
‘This rule is the long-standing view of the Executive Branch, consistently reaffirmed by administrations of both political parties for nearly five decades. As one judge recently observed in a different context: ‘[C]ould it really be wrong if both Administrations agree on it?’
In August 2019, the House Judiciary Committee decided to enforce its McGahn subpoena. The committee considered the attorney to be “the most important” witness in the charge of obstruction of justice in the Robert Mueller III investigation into Russia’s cyber-attack on the 2016 U.S. presidential election.
Jackson granted a seven-day temporary administrativ stay to consider a similar department request pending appeal. The House did not oppose the temporary stay.
Trump claimed that McGahn had already complied with the Mueller probe. Given that he was a top presidential adviser, the committee could not force him to comply in person, by letter, or even with evidence.
Judge Jackson ruled that should McGahn refuse to testify, even by invoking executive privilege, he had to appear in person and address each question.
‘[The DOJ’s false claim] to unreviewable absolute testimonial immunity is baseless, and as such, cannot be sustained.’
Jackson ordered the former counsel to go before the House Intelligence Committee in a 118-page opinion:
‘[It is] nescapableper the Constitution, no one is above the law. 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. Fifty years of say so within the Executive branch does not change that fundamental truth.’
Jackson’s broad opinion included:
‘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.’
McGahn’s attorney William Burck said earlier that:
‘Donald McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal.’
Featured image is a screenshot via YouTube.
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