Obama Appointed Judge Predictably Rules McGahn Must Testify

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. 


  1. The good news is that if this is upheld. Then all the Democrats would all be held accountable. Starting with Obma, Clinton, Schiff, Pelosi and all the others too.

    • Lately? That has been standard operating procedure for them as long as I have been observing polly ticks……………(at least 50 years).

  2. Attorney Client Privilege, out the window. Right to remain silent, out the window. Right to face your accuser, right to cross-examine your accuser, right to call your own witnesses, right to pose your own questions in the early stages of the proceedings when exculpatory evidence would be crucial to the outcome, gone with the wind from the East. The temporary majority in the House is now in temporary control, with the bi-partisan and universal Rule of Law bypassed. What is the name of this new system, where the temporary majority rules, and Leader Schiff is writing his own rules. The Road to Totalitarian Rule with one party rule. On this road, we are on a fast track to eliminate the enumerated and corollary protections written into the Constitution, including the important reference to Common Law and Nature Law rights not explicitly mentioned or enumerated. (See Amendment 10.) Neither Constitution protections nor the Rule of Law, e.g. Federal Rules of Evidence, no longer govern the House procedures.
    Why? Actually the question is better presented as: Why not? Who voted for this change? Our government protects us from common criminals; it’s only our Constitutional rights protect us from the elected wrongdoers and appointed Jurists in our Government.
    The impeachment process, in the opinion of the Democrats, is Sui Genesis, like a ball of wax that won’t melt in your mouth. I’m having trouble defining this special process that’s purely political and not governed by criminal law procedure or tradition, even when impeachment involves certain common law crimes of Bribery, Treason, High Crimes and Misdemeanors. I always understood that impeachment of our elected officials was primarily an extra step in the criminal process of pursuing wrong-doers within the government and crimes committed under color of Authority. The impeachment step serves as an obstacle to political harassment and opposition fraud, and not an opportunity to muster opposition opinion in place of probative evidence as identified in the Rules of Federal Evidence. I always understood that Elected Officials should have more, not less protection, than common thieves.
    Schiff argues by analogy that the purely political process is amazing like a criminal proceeding, with a prosecutor, an impaneled Congressional Grand Jury resembling a Blue Ribbon Panel, an automatic challenge of jury members from the opposition party, and hearings in secret. Apparently Schiff skipped the first step of the criminal process: he skipped over the finding of fact that defines a prima facie case of crime, identified by its elements, and defined in our legislation.
    Why are these “purely political” hearings held in secret, with the initial proceedings and testimony and the identity of the witnesses not discoverable? We all know who the accused is; what is the need for secrecy? There’s not much chance that Trump will up and flee the jurisdiction to avoid prosecution for crimes alleged but apparently not yet legislated.
    Doesn’t this purely political process seem remarkably like a criminal indictment proceeding in the House and a criminal trial in the Senate? What’s purely political about Schiff’s impeachment process? Have the Democrats created another Steele Dossier? Will we need a Special Prosecutor to investigate the reliability of Schiff’s new Dossier and to corroborate the separate claims before proceeding to actual indictment?
    I know what’s purely political. Only Elected Official and Appointed Members of the Federal Judiciary can be impeached. Who or what is now going to protect our elected officials from Schiff’s impeachment process.

    • A big concern is that Adam Schiff, according to the Conservative Firing Line (2-2018) is that “Adam Schiff was once financially funded by George Soros MoveOn.org to win his “Congressional Seat.” “Schiff was also awarded :Toll Fellowship by the Council of State governments, a nonprofit and monitors federal government activities, and financed by Soros Open Society Foundation.” So this is like a Hitler set up court. Add bias and conflict of interest to the Democrat group. Briebart and the Washington Examiner agree that “Sean Misko worked with a group funded by Burisma Ukraine Co. before joining Schiff’s staff.” This was verified by Google, Burisma and George Soros “Open Society Foundation.” Not to mention ignoring the facts of misconduct by the Biden’s during Obama’s term and all the shady deals, that set Iran up to go against Israel and more.

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