WASHINGTON — 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.
In a 118-page decision, 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 Mueller’s investigation of Russian interference in the 2016 U.S. election.
President Donald Trump blocked McGahn’s appearance, saying the attorney 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.
The Justice Department’s claim to “unreviewable absolute testimonial immunity,” Jackson wrote, “is baseless, and as such, cannot be sustained.”
She continued, “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,” Jackson wrote in the 118-page opinion. “Fifty years of say so within the Executive branch does not change that fundamental truth.”
First suit filed
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.
Jackson’s decision had been highly anticipated, with major implications for other high-value witnesses in the Democrats’ ongoing impeachment investigation, including former national security adviser John Bolton and Bolton’s deputy Charles Kupperman.
Since the House lawsuit began, a complaint this summer by an intelligence community whistleblower triggered a formal congressional impeachment inquiry into Trump’s request that Ukraine investigate former Vice President Joe Biden — a potential 2020 political rival — and his son, Hunter Biden.
The House Intelligence Committee recently held public hearings as part of the inquiry, centered on a July 25 call from Trump allegedly pressuring Ukraine’s leader to investigate Biden and his son.
Democrats are debating whether articles of impeachment should include obstruction of justice allegations outlined by Mueller, and McGahn could be a crucial witness.
“Given that the House’s impeachment inquiry is proceeding rapidly, the Committee has a finite window of time to effectively obtain and consider McGahn’s testimony,” House General Counsel Douglas Letter wrote last week in asking the judge to move quickly.
“The Judiciary Committee anticipates holding hearings after (the) public hearings have concluded and would aim to obtain Mr. McGahn’s testimony at that time,” Letter wrote.
The House Judiciary Committee is continuing to investigate obstruction of justice allegations detailed in Mueller’s 448-page report, which mentioned McGahn’s statements more than 160 times.
For instance, on June 17, 2017, three days after The Washington Post reported that the special counsel was investigating whether the President had obstructed justice and a month after Mueller was appointed, Trump called McGahn at home twice and directed him to fire Mueller over alleged conflicts of interest, the House’s lawsuit stated, citing Mueller’s report.
Mueller’s report ultimately concluded that it was not the special counsel’s role to determine whether the President broke the law.
Trump’s July call to Ukraine came one day after Mueller testified to Congress about his probe’s conclusions.
Deferring to DOJ
William Burck, McGahn’s attorney, said, “Don McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal. DOJ is handling this case, so you will need to ask them whether they intend to seek a stay.”
Burck has said that McGahn does not believe he witnessed any violation of law, and that the President instructed him to cooperate fully with Mueller but not to testify without agreement between the White House and the committee.
Jackson’s ruling dealt a blow to the Trump administration’s assertion of executive-branch power against inquiries by the legislative branch. The position was stated by current White House counsel Pat Cipollone in an Oct. 9 letter in which he said the administration will not cooperate with the House impeachment inquiry.
The ruling does not mean that McGahn will have to immediately appear before Congress under his April 22 subpoena. The Justice Department can ask the judge to put her ruling on hold, and if she declines, ask the appeals court to temporarily stay the opinion.
However, Jonathan Shaub, a former attorney in the Justice Department’s Office of Legal Counsel, said a ruling against McGahn will “provide cover for other witnesses, especially former employees who are inclined to testify but feel compelled by the White House’s direction not to.”
Even if Congress prevails in the courts, McGahn could appear before the committee but still decline to answer certain questions. McGahn could assert a separate claim of executive privilege and refuse to respond to specific questions about conversations with the president, for instance, unless he is authorized to do so by the White House.
An appeal and binding circuit court ruling could set up a historic Supreme Court test over the Constitution’s checks and balances, pitting Congress’s impeachment and oversight authority against the powers of the presidency.
Congressional subpoena fights normally are settled through compromise between branches of the government to avoid the risk that either side suffers a definitive constitutional defeat.
That is what occurred in 2008, when the White House and Congress reached an accommodation to avert a binding appeals court ruling after U.S. District John Bates — a George W. Bush appointee, former presiding judge of the Foreign Intelligence Surveillance Court and deputy independent counsel of the Whitewater probe into President Bill Clinton — rejected Bush’s bid to block testimony of his former counsel Harriet Miers to a House Judiciary Committee on the controversial firings of U.S. attorneys.
The Bush administration’s claim of “absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” Bates wrote. The parties eventually agreed on questioning behind closed doors and release of a public transcript, mooting the case.
But the Justice Department’s Office of Legal Counsel has argued that Bates’s decision is mistaken.
House Democrats were closely watching the outcome of McGahn’s case because of how it might affect other impeachment-related witnesses. The House Intelligence Committee-led inquiry seeks testimony from Bolton and had issued — but then withdrew — a subpoena to Kupperman, Bolton’s deputy, while courts addressed the White House’s blanket immunity claim.
Charles Cooper, the lawyer who represents Bolton and Kupperman, has said the two will not participate in the House impeachment inquiry until a federal judge resolves the dispute.
Secretary of State Mike Pompeo has also rebuffed a House subpoena for department records in the Ukraine probe.
In McGahn’s case, at a hearing Oct. 31 before Jackson, Assistant Attorney General James Burnham argued that the House “as a general proposition” can never sue the executive branch, nor compel top White House aides to appear.
Letter, the House general counsel, told the court that “the Judiciary Committee cannot fulfill its constitutional investigative, oversight and legislative responsibilities — including its consideration of whether to recommend articles of impeachment — without hearing from (McGahn).”