“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.
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