In a ruling by an Obama-appointed federal judge that was not surprising, former White House counsel Don McGahn was ordered to testify before the House Judiciary Committee. The U.S. District Court decision is expected to be appealed by the Department of Justice which is representing McGahn.
Judge Ketanji Brown Jackson wrote in her 120-page opinion: “[T]he Court holds only that [McGahn] (and other senior presidential advisors) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute,” Jackson wrote. Referring to a similar ruling in a 2008 case involving former George W. Bush counsel Harriet Miers, he said, “Donald McGahn must appear before the Committee to provide testimony, and invoke executive privilege where appropriate.”
“However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires,” Jackson added. “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
With appeals forthcoming, the decision is little more than a stepping stone in the process that will likely end up in the Supreme Court. Nonetheless, Democrats are trying to get some mileage out of the ruling, beating on their chests and congratulating themselves for convincing one of their own in the judicial system to side with them.
House Intelligence Chairman Adam Schiff said in a statement that witnesses who have spurned the committee’s demands to testify can change course if they want to testify now.
“The witnesses who have defied Congress at the behest of the President will have to decide whether their duty is to the country, or to a President who believes that he is above the law,” the Democrat said.
Schiff statement on the McGahn ruling pic.twitter.com/52Zfv4mQMc
— Jeremy Herb (@jeremyherb) November 26, 2019
Presidential candidate Kamala Harris seemed to either have little understanding of the impact of the decision at this point or more likely little interest in the truth, choosing to declare “McGahn must comply with this court order by testifying before Congress immediately.”
Former WH Counsel Don McGahn must comply with this court order by testifying before Congress immediately.
And let’s be clear: he shouldn’t delay testifying by asking Gorsuch and Kavanaugh—the very justices he hand-picked for SCOTUS—to bail him out.
No one is above the law. https://t.co/KasC1o4PrQ
— Kamala Harris (@SenKamalaHarris) November 25, 2019
The position of the Trump administration and the DOJ is that senior White House aides have absolute immunity from testifying before the Democrats’ congressional kangaroo court.
“Don McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal,” McGahn’s private attorney William Burck, said Monday. However, a DOJ spokesperson said the department has plans to appeal.
Appeals could take weeks or months. Federal appeals courts and the Supreme Court have not previously resolved questions about executive branch witness testimony before Congress.
According to Judge Jackson, even if officials are indeed ultimately compelled to testify before Congress, they will be able to “invoke executive privilege where appropriate.”
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