Trump White House Suffers Serious Legal Setback As Judge Says Don McGahn Must Testify

“Don McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal”, the former White House counsel’s lawyer said Monday evening, after Judge Ketanji Brown Jackson of the Federal District Court for the District of Columbia, shot down the Trump administration’s contention that presidential advisors are totally immune from requests that they detail their official duties.

The ruling is a serious blow to the White House, which has sought to block top Trump aides from testifying in multiple investigations. This particular case relates to McGahn’s first-hand knowledge of possible obstruction of justice in the Mueller probe.

“The DOJ is handling this case, so you will need to ask them whether they intend to seek a stay”, McGahn’s attorney Willian Burck said.

Spoiler alert: The Justice Department will almost surely file an appeal.

Regardless, this is yet another legal victory for House Democrats. The ruling was hotly-anticipated for one simple reason: It has ramifications for the impeachment inquiry.

The administration has rolled out the same immunity claim to prevent top officials from complying with subpoenas in the Ukraine debacle. Some witnesses have shown up anyway, but others haven’t.

The ruling means that some officials who are said to be willing to testify if the courts rule against Trump, may do just that if the White House loses on appeal. One such official is John Bolton.

Earlier this month, Mick Mulvaney – who has stonewalled Congress – briefly sought to join a suit filed by Charles Kupperman, a bizarre move that spoke to the fact that even the president’s closest advisors realize the gravity of this situation and would rather let the courts decide the issue. It’s not clear whether Bolton and Kupperman will go along with the decision in the McGahn case. Mulvaney eventually went out on his own with litigation.

McGahn was subpoenaed earlier this year following the release of the Mueller report, in which he played a starring role. The House Judiciary committee eventually sued Don at the same time the panel requested a court order compelling the release of secret grand jury material from the Mueller probe.

Read more: In The Future, US Presidents Are Only Safe Because Don McGahn Defied A Congressional Subpoena

Previous administrations have similarly argued that presidential aides are immune and can’t be compelled by Congress to discuss their official duties. The DoJ’s Steven Engel reiterated that position earlier this year, and there’s some history which suggests he isn’t entirely out of bounds.

Long story short, a dearth of controlling precedent (thanks to a lack of appeals court rulings in prior instances where the executive branch has sought to block testimony and/or document requests) means this issue isn’t settled. That opens the door to a protracted legal battle.

“DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards”, Jackson wrote in a 120-page opinion (embedded in full below). “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”.

As The New York Times writes on Monday, “if McGahn declines to testify until a definitive judgment is reached and 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 McGahn’s potential testimony to play any role in the impeachment inquiry”.

Still, this marks another instance of the courts pushing back on Trump’s increasingly expansive assertions to executive power and privilege. Earlier this month, the president’s attorneys were forced to appeal to the Supreme Court after a series of unfavorable rulings in cases related to the president’s tax returns brought prosecutors and Democrats closer than ever to obtaining his closely-guarded financial records.

In one case, Trump’s lawyers argued that he could literally “shoot somebody in the middle of Fifth Avenue” (as he famously proclaimed on the campaign trail) and the local police would not be able to investigate the matter. The courts did not seem to appreciate that.

Read more: Trump Takes Tax Fight To Supreme Court



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3 thoughts on “Trump White House Suffers Serious Legal Setback As Judge Says Don McGahn Must Testify

  1. It is interesting to see right wingers who not long ago were going ballistic over the idea of a national ID card go silent on this issue.

  2. This essentially comes down to the scope of your job in the White House … job duties which fall under the umbrella of legality. None of these trump monsters are protected or immune from illegal activities and that includes trump the mafia king — who assumes that DOJ will protect him with endless favorable opinions.

    Would anything reek more than to have the DOJ ignore trump engaged in acts of murder or bribery or election fraud, or treason — what purpose will DOJ play in American law, if they allow criminality to be common place?

    Sure this gets dicey with DOJ’s abuse of power potential — along with the twisted road to SCOTUS — but it’s little victories like this McGahn case that allow Congress and Justice to check and balance a few monsters. DOJ will appeal this to SCOTUS as a fast track case, but, what of John Roberts? Will the Chief be forced to recuse himself from the McGahn case or the Senate Impeachment — or, does it matter at all, because maybe there is no conflict or overlapping complexities. But, what-if Roberts sides with trump and the GOP court to allow McGahn to not testify to Congress, and then, in a matter of weeks, Roberts sides with GOP Senate and exonerates trump. Isn’t this whole mess somewhat too politicized and polarized and unjust — isn’t the justice system becoming more powerful than Congress, or more specifically doesn’t this look more and more like an illegal coup, where a corrupt president and his party are abusing the executive branch and forming partnerships with the Justice Dept?

  3. Re: Committee on Judiciary v. Miers ==> Opinion by: John Deacon Bates:
    (born October 11, 1946) is a Senior United States District Judge of the United States District Court for the District of Columbia. He was appointed by President George W. Bush in December 2001

    “The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

    neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances."

    Also see: Ultimately, Jackson could not “abide DOJ’s less-than-subtle suggestion that, under our constitutional scheme, the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive branch, such that, ultimately, the President wields virtually unchecked power.” We now have to hope that the Supreme Court cannot abide it, either.

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