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Ex-White House Counsel McGahn Must Testify to Congress, Judge Rules
A judge rejected the Trump administration’s argument that senior White House officials are immune from congressional subpoenas.
WASHINGTON — The former White House counsel Donald F. McGahn II must testify before impeachment investigators about Mr. Trump’s efforts to obstruct the Mueller investigation, a judge ruled on Monday.
The 120-page decision by Judge Ketanji Brown Jackson of the Federal District Court for the District of Columbia handed a victory to House Democrats in their fight to overcome President Trump’s stonewalling.
Judge Jackson rejected the Trump administration’s sweeping claim that top presidential advisers are absolutely immune from being compelled to talk about their official duties — meaning they do not even have to show up in response to a subpoena.
Citing Congress’s constitutional power to investigate suspected abuses of power within the government, Judge Jackson wrote that the Trump administration’s “claim to unreviewable absolute testimonial immunity on separation-of-powers grounds — essentially, that the Constitution’s scheme countenances unassailable executive branch authority — is baseless, and as such, cannot be sustained.”
Still, Mr. McGahn is unlikely to appear any time soon because it is virtually certain that the Justice Department will file an appeal and seek a stay of the judge’s ruling. He and his lawyer, William A. Burck, have taken the position that the fight is between Congress and the Trump administration, permitting administration lawyers to handle the case.
“Don McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal,” Mr. Burck said in an email. “The DOJ is handling this case, so you will need to ask them whether they intend to seek a stay.”
The Justice Department had no immediate comment, but a stay request and appeal is widely expected, following the pattern of other recent legal fights over congressional subpoenas.
But the ruling carries broader implications at a time when the White House has also invoked the same expansive immunity theory to block witnesses about the Ukraine affair from cooperating in Democrats’ impeachment inquiry in the House.
Several potential witnesses to what Mr. Trump said and did in connection with his pressuring of Ukraine to announce investigations that could benefit him politically — like his former national security adviser, John R. Bolton — have declined to testify because of the administration’s constitutional theory that they are immune.
Mr. Bolton, who had a one-on-one meeting with Mr. Trump about why he was freezing a military aid package to Ukraine in August, has let it be known that he has pertinent information about the matter. But he has also threatened to sue if he is presented with any subpoena, seeking a judicial ruling about whether such a subpoena is legally valid.
A lawyer for Mr. Bolton, Charles J. Cooper, has previously argued that Mr. Bolton’s situation is different from that of Mr. McGahn because Mr. Bolton’s official duties centered on foreign affairs and national security matters. But Mr. Bolton’s intentions and desires are unclear.
In her ruling, Judge Jackson appeared to respond to Mr. Cooper’s notion. She wrote that the law required not just Mr. McGahn, but “other current and former senior-level White House officials” who receive a subpoena to appear, and that it made no difference “whether the aides in question are privy to national security matters, or work solely on domestic issues.”
She added: “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,” she said. “Fifty years of say so within the executive branch does not change that fundamental truth.”
If Mr. McGahn declines to testify until a definitive judgment is reached and Mr. Trump is prepared to keep appealing all the way to the Supreme Court, there appears to be little chance that the matter will be resolved in time for Mr. McGahn’s potential testimony to play any role in the impeachment inquiry.
Indeed, the current dispute is only about whether Mr. McGahn must show up to be asked questions. Even if the Supreme Court were to ultimately say he must, it would leave unanswered whether the questions that lawmakers want to ask him — primarily about conversations with Mr. Trump detailed in the Mueller report — are subject to executive privilege, so the litigation process might have to start all over again at that point.
In her ruling, Judge Jackson distinguished the issue she was ruling on — whether senior-level presidential aides, such as Mr. McGahn, are legally required to appear before a committee in response to a subpoena — “from the very different question of whether the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege.”
The House Judiciary Committee subpoenaed Mr. McGahn in May after the release of the report by the special counsel, Robert S. Mueller III. The report showed that Mr. McGahn was a key witness to several of the most serious episodes in which Mr. Trump sought to obstruct the Russia investigation — including when the president pushed Mr. McGahn to have Mr. Mueller fired, and later tried to bully him into falsifying evidence to deny that he had done so.
But Mr. Trump, who had openly vowed to stonewall “all” oversight subpoenas after Democrats took control of the House in the 2018 midterm election, instructed Mr. McGahn not to cooperate. His administration put forward the theory that top aides to the president like Mr. McGahn were absolutely immune from being compelled to testify about their officials duties — meaning that they do not even have to show up.
In August, the House Judiciary Committee sued Mr. McGahn, seeking a judicial order that he comply with the subpoena. That same day, the panel also asked a judge for an order permitting it to see secret grand jury evidence gathered by Mr. Mueller, which Attorney General William P. Barr declined to provide to Congress. (Another federal judge ruled for Congress in the grand jury case a month ago, but the administration has appealed.)
The court filings said the House needed the information not just for oversight purposes, but also for an impeachment inquiry. While the impeachment focus has since shifted to the Ukraine affair that burst into public view in September, House Democrats are still considering an article of impeachment that would accuse Mr. Trump of obstruction of justice.
A question pervading both disputes is whether the Constitution permits Congress to subpoena aides to a president like Mr. McGahn and, potentially, Mr. Bolton, to talk about their official duties — or whether the president’s secrecy powers make his aides absolutely immune from such subpoenas.
Administrations of both parties have taken the position that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties,” as a 15-page legal opinion from Steven A. Engel, the current head of the Justice Department’s Office of Legal Counsel, put it. But there is no definitive court precedent on the issue.
In 2008, another Federal District Court judge, John D. Bates, rejected that theory in another subpoena dispute. He ruled that President George W. Bush’s former White House counsel Harriet Miers had no right to skip a hearing for which she had been subpoenaed. Judge Bates, a Bush appointee, said she had to show up — although she might still refuse to answer specific questions based on a claim of executive privilege.
But the executive branch did not appeal the Miers ruling, and because no appeals court weighed in, Judge Bates’s opinion does not count as a controlling precedent for other disputes raising the same issue. That left the Obama administration, in a 2014 memo, free to take the position that Judge Bates had been wrong, and the Trump legal team echoed that logic.
In arguments late last month, Judge Jackson had indicated skepticism with the Trump administration’s arguments that Judge Bates got it wrong 11 years ago, suggesting that the executive branch’s legal theory threatened constitutional checks and balances.
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