On Thursday, District Court Judge Ketanji Brown Jackson blasted White House attempts to block testimony from former White House counsel Don McGahn under claims that the executive branch enjoys “absolute immunity” from being compelled to testify. McGahn ignored both a congressional subpoena for documents issued in April, and a subpoena ordering his appearance before the House Judiciary Committee in May. Even though this case does not directly come from the impeachment hearings—McGahn’s refusal to appear came some months before the whistleblower complaint that led to the current inquiry—it’s still a very important case for several reasons.
As Politico reports, there’s been only a single case that directly addressed this issue in the past, and in that one the executive branch lost solidly. Should Judge Jackson’s ruling in this case reinforce that previous decision, it could have a big effect in solidifying the importance of congressional subpoenas. That wouldn’t just apply to all those instances in which current or former members of the Trump White House refused to appear or provide documents during the Russia investigation, it would also apply to those who are continuing to refuse subpoenas in facing the House impeachment inquiry.
In fact, with the recent ruling that the House inquiry constitutes a legitimate impeachment action even before the full House voted on Thursday, those subpoenas have even more force. A Congress-friendly ruling in the McGahn case would make it extremely difficult for anyone, at any level, to round-file a subpoena as so many Trump officials have already done. Though … not necessarily.
Because on the other side of the courtroom, McGahn isn’t just defended by his own attorneys, he’s also backed by the Department of Justice. And those DOJ attorneys haven’t just been arguing that McGahn has some kind of special privilege. Their position has been that the executive branch enjoys absolute immunity, that the House can never go to court to enforce a subpoena against a top adviser in the executive branch, and that “the courts shouldn’t weigh in on a dispute between Congress and the executive branch.”
In other words, the DOJ appears to be arguing that the whole case is illegitimate, and no matter what Jackson rules … the executive branch is free to defy Congress, and the courts, as it likes.
The importance of bringing in McGahn for his testimony on the Russia investigation isn’t just a historical footnote. The Russia investigation is directly connected to the current impeachment inquiry.
- One of the investigations Trump wanted Ukraine to announce in exchange for U.S. support was one that would replace Russian hackers with Ukrainians backed by Hillary Clinton as the real “bad guys” behind the theft of DNC emails.
- In the rough “read out” of the phone call between Trump and Ukrainian President Zelensky, Trump directly mentions “that whole nonsense” that “ended with a very poor performance by a man named Robert Mueller” in the same paragraph where he asks Zelensky to do a “favor” in exchange for anti-tank missiles.
- In 2018, Ukraine suspended its investigation into Trump campaign chair Paul Manafort after coming under pressure from Rudy Giuliani and others.
- In the recent ruling that the House Judiciary Committee should have full access to the special counsel report and underlying material, attorneys for the House made it clear these materials remained a priority.
During questioning of DOJ attorneys by Judge Jackson, the White House continued to insist on absolute immunity, prompting the judge to ask “So what does checks and balances mean?”
Nothing, apparently. Because that question was met with the claim that the House can never go to court, regardless of the circumstances, but had to work things out with the executive. Which is another way of saying that the House gets only what Trump wants them to have, with no recourse.
It seems highly likely that Judge Jackson will tell the DOJ that they’re wrong. And then it will be time to see if the Trump White House believes that Congress and the courts combined can continue to be ignored.