Don McGahn, former White House counsel, has been ordered to appear before Congress. A subpoena was issued earlier this year. As President Trump looks to keep his aides from having to testify for any House impeachment investigators, this news comes as a major blow. U.S. District Court Judge Ketanji Brown Jackson has already ruled that McGahn cannot evoke executive privilege without taking the time to appear in front of Congress.
That means that he will have to do it on his own and the process will include questioning. While Trump may have hoped that the executive offices were able to supersede the compulsory congressional process, the opposite is true. Now, the Department of Justice is looking to step in. An appeal will be filed, in order to challenge the decision made by Judge Jackson.
If a higher court decides to uphold the ruling that has been made, this will establish an interesting new precedent. Any future disputes that take place between the White House and Congress that involve executive privilege are going to be affected. The president and other high ranking government officials are typically allowed to avoid any questions that may incriminate them.
Questions that are designed to impair deliberative processes have also been avoided in the past. The same goes for any questions that compromise the separation of powers and presidential communications. While McGahn was initially subpoenaed back in April, the White House had moved to block the filing almost immediately.
Special Counsel Robert Mueller’s Russia probe is at the heart of the matter, as it is believed that McGahn functioned as a key witness to Trump’s obstruction of justice. As it stands right now, the court has recognized that critical witness testimony cannot be withheld. The Trump administration may have believed that they could claim complete immunity within the eyes of the law but this has no basis in law.
Jackson believes that this ruling had to be made because the nation’s “venerated constitutional principles” were in question. The most vital democratic institutions have to be protected at all times. When the Department of Justice allows for the President to protect their aides in such a manner, this sends a message that the typical separation of powers does not matter.
Executive branch officials cannot and will not be able to avoid the compulsory congressional process, no matter how many times they have attempted to do so over the years. These results are unavoidable as far as basic constitutional law is concerned. Miers court already came to this determination a decade ago.
White House Counsel Pat Cipollone sent a letter back in May, claiming that McGahn would not have to testify. Mueller’s investigative committee was seeking documents that were given to McGahn that are considered pertinent to the investigation at hand. According to Counsel Cipollone, the records were supposed to be submitted with the understanding that they remained subject to the control of the White House at all times.
He attempted to invoke “longstanding constitutional principles” as a reason for continued protection. McGahn does not have any legal rights to the documents and cannot disclose the information within to any third party, said Cipollone. The ruling from Jackson came on the heels of news that Adam Schiff (D-Calif.) would be handing over a report that granted control over the current impeachment to the House Judiciary Committee.
The ruling on the McGahn matter is now considered to be a major win for congressional oversight advocates. Absolute immunity is not thought to be legitimate in these instances. White House officials cannot be prohibited from testifying in a Congressional hearing. Witnesses who are looking to hide behind audacious claims of absolute immunity will now need to come up with an alternate plan for defending themselves from legal concerns.
The Supreme Court did provide one ruling in favor of Trump, though. A lower court order asking Trump to turn over his tax returns has been blocked at the moment. The high court is willing to hear an appeal on the matter. A writ for certiorari can be entertained in the meantime and if this writ is denied, the stay is not going to remain in effect.
If not, the stay will then remain in place until the Supreme Court has had the chance to hear the case and decide upon it. One thing is for sure: the Trump administration will be facing a number of challenges from a legal standpoint in the weeks to come. Only time will tell if they are able to overcome them in a timely and efficient manner.