November 27, 2019
Former White House Counsel Don McGahn—who often spoke truth to the president, but refused to testify before the U.S. Congress after he was subpoenaed last April to do so—may yet face the music, if an appeal by the Trump administration of the ruling made on November 25 by Judge Ketanji Brown Jackson of the Federal District Court for the District of Columbia is not successful.
The ruling that McGahn must appear before Congress comes as a disappointment to the president, who had made it no secret that he wanted to block all White House aides from appearing before the House impeachment investigators.
Indeed, Judge Jackson said that senior presidential aides must comply with congressional subpoenas and characterized the administration’s arguments to the contrary as “fiction,” The New York Times reported.
Her 120-page decision handed another lower-court victory to House Democrats in their fight to overcome Mr. Trump’s stonewalling. However, Attorney General Bill Barr already has requested a continuance so that he can appeal the case—despite the fact that the judge has stated that “absolute immunity from congressional subpoenas has no basis in law.”
She addressed the Department of Justice directly, noting that, ““When DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process; and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards,” Jackson wrote. “In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny.”
According to the Times report, the judge said “the same is true even for those who worked on national security issues.”
“Presidents are not kings,” wrote Judge Jackson, adding that current and former White House officials owe their allegiance to the Constitution. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
The ruling by Judge Jackson, who was appointed by President Barack Obama, could have broader consequences for the investigation into the Ukraine affair, the news outlet noted.
Notably, John Bolton, President Trump’s former national security adviser, has let it be known that he has significant information about the Ukraine affair at the heart of the impeachment inquiry—but is uncertain whether any congressional subpoena for his testimony would be constitutionally valid. He wants a judge to decide.
Judge Jackson’s ruling also came on the same day that another federal judge in Washington held out the possibility that more documents about the Ukraine affair could yet see the light of day, ruling that emails between the White House and the Pentagon about the freezing of military aid to Ukraine should be released under a Freedom of Information Act lawsuit.
Research contact: @nytimes