In a blow to the White House impeachment defense strategy, a federal judge has ruled that former White House Counsel Don McGahn cannot ignore a congressional subpoena. “No one is above the law,” the judge wrote in the ruling.
U.S. District Judge Ketanji Brown Jackson of Washington disagreed with the White House claim that McGhan was “absolutely immune from compelled congressional testimony.” The ruling by Jackson, an Obama appointee, is already being appealed in a case that could quickly wind its way to the Supreme Court.
Per the Washington Post, the case originated in August when Democratic House members filed suit to compel McGahn to testify regarding allegations in the Mueller report that President Trump obstructed justice by ordering subordinates to interfere with the Russia investigation. The Trump Administration claimed executive privilege and argued that McGahn could not be forced to testify or turn over documents. Judge Jackson rejected this claim, saying that if McGahn wants to invoke executive privilege, he must do so in person and on a question-by-question basis.
In the ruling, Jackson said that the government claim of “unreviewable absolute testimonial immunity” was “baseless, and as such, cannot be sustained.” She said that a subpoena was part of the legal process, not a political instrument, and that, “per the Constitution, no one is above the law.”
The ruling now raises the possibility that McGahn will be called as a witness in the ongoing impeachment inquiry. It also has implications for other Administration officials who have refused to comply with House subpoenas. Under the precedent, if upheld on appeal, Vice President Pence, Secretary of State Pompeo, Chief of Staff Mick Mulvaney, and former National Security Advisor John Bolton could be compelled to testify.
A big question is how long the legal question will take to be resolved. With less than a year to go before the election, it is possible that the courts will not issue a final decision until shortly before the election. The other Administration officials might also fight the subpoenas individually in hopes of delaying testimony until after the election.
For their part, Democrats have adopted a strategy of “adverse inference” and announced their plans not to subpoena witnesses who have refused to testify, reports Roll Call. Under the doctrine, which is used in civil lawsuits, if a witness refuses to testify or destroys documents, a judge can order jurors to presume that the evidence would have been bad for the side that refused to provide it or destroyed it. In the context of impeachment, the Administration’s failure to allow witnesses that could present exculpatory evidence is viewed as a tacit admission that their testimony would support the version of events given by witnesses who testified against the president.
The Democratic strategy is aimed at moving impeachment forward quickly and not allowing the Administration’s refusal to cooperate to drag out the process. Democrats would prefer to wrap up the impeachment before the primaries begin early next year.
However, the ruling against the Administration in the McGahn case means that Democrats now have a choice to make. They can either press forward with impeachment based on current evidence or they can sue to force testimony from Trump’s inner circle and gamble that courts will resolve the issue quickly.
The nation is closely divided on impeachment and further incriminating testimony from witnesses with direct knowledge of Trump’s orders could help to build support for impeaching and removing the president. The clock is ticking, however, and voters deserve a resolution to the impeachment crisis before they go to the polls next November. The best solution would be for the White House to read the writing on the wall and allow staffers to testify, especially if they have testimony that would exonerate Mr. Trump.
In a statement announcing its appeal, the Department of Justice said the ruling “contradicts longstanding legal precedent established by Administrations of both political parties. We will appeal and are confident that the important constitutional principle advanced by the Administration will be vindicated.”
However, Judge Jackson’s ruling is compelling. “Stated simply,” she wrote, “The primary takeaway from the past 250 years of recorded American history is that presidents are not kings.”
Originally published on the resurgent
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