Judge rules former White House counsel Don McGahn must appear to testify

U.S. District Judge Ketanji Brown Jackson ruled on Monday that former White House counsel Don McGahn must comply with a subpoena and testify to Congress, delivering a significant win to House Democrats amid their impeachment inquiry into President Trump.

The Hill reports, Judge rules former WH counsel McGahn must testify under subpoena:

The ruling (.pdf) from U.S. District Judge Ketanji Brown Jackson, an Obama appointee, means that McGahn is obligated to comply with a House Judiciary Committee subpoena from April seeking to compel his testimony.

Monday’s ruling is the latest development in a series of court battles over separation of powers that have pit the Democratic-led House’s oversight authority against claims of presidential immunity and privacy.

Jackson’s decision is likely to be appealed.

Judge Brown follows precedent in the D.C. Circuit from Judge John Bates in Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 55 (D.D.C. 2008). Judge Brown rejects Attorney General William “Coverup” Barr’s “unitary executive” theory and assertion of “absolute immunity,” stating it “is baseless” and “cannot be sustained.” Former White House counsel Don McGahn must appear and testify, but may “invoke executive privilege where appropriate.” The order does not include a stay pending an appeal, but a motion requesting this is certain to follow soon.

The introduction to this lengthy opinion summarizes the holding (emphasis added):

In 2008, in the context of a dispute over whether the Committee on the Judiciary of the House of Representatives (“the Judiciary Committee”) had the power to compel former White House Counsel Harriet Miers and then-White House Chief of Staff Joshua Bolten to testify and produce documents in connection with a congressional investigation, the Department of Justice (“DOJ”) made three legal contentions of “extraordinary constitutional significance.” Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 55 (D.D.C. 2008) (Bates, J.). First, DOJ argued that a duly authorized committee of Congress acting on behalf of the House of Representatives cannot invoke judicial process to compel the appearance of senior-level aides of the President for the purpose of receiving sworn testimony. See id. at 66–67, 78. Second, DOJ maintained that a President can demand that his aides (both current and former) ignore a subpoena that Congress issues, on the basis of alleged absolute testimonial immunity. See id. at 100. And, third, DOJ asserted that the federal courts cannot exercise subject-matter jurisdiction over any such subpoena-related stalemate between the Legislature and the Executive branch, on separation of powers grounds. See id. at 72–73, 93–94. The district court that considered these propositions rejected each one in a lengthy opinion that thoroughly explained why the federal courts have subject-matter jurisdiction over such disputes, see id. at 64–65; why the Judiciary Committee had standing to sue and a cause of action to proceed in federal court, see id. at 65–94; and why the claim that a President’s senior-level aides have absolute testimonial immunity is meritless, see id. at 99–107. Most importantly, the Miers opinion also persuasively demonstrated that DOJ’s conception of the limited power of both Congress and the federal courts relative to the expansive authority of the President—which, purportedly, includes the power to shield himself and his aides from being questioned about any aspect of their present or former White House work—is not grounded in the Constitution or in any other federal law. See id. at 99, 106–07; cf. Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 10–11 (D.D.C. 2013).

The more things change, the more they stay the same….

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For the reasons explained in this Memorandum Opinion, as well as those laid out in Miers, the Judiciary Committee’s motion for partial summary judgment is GRANTED, and DOJ’s cross-motion for summary judgment is DENIED. In short, this Court agrees with Judge Bates’s conclusion that federal courts have subject-matter jurisdiction to resolve legal disputes that arise between the Legislature and the Executive branch concerning the scope of each branch’s subpoena-related rights and duties, under section 1331 of Title 28 of the United States Code and the Constitution. See Miers, 558 F. Supp. 2d at 64–65. Jurisdiction exists because the Judiciary Committee’s claim presents a legal question, and it is “emphatically” the role of the Judiciary to say what the law is. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). It also plainly advances constitutional separation-of-powers principles, rather than subverts them, when a federal court decides the question of whether a legislative subpoena that a duly authorized committee of the House of Representatives has issued to a senior-level aide of the President is valid and enforceable, or, alternatively, is subject to the President’s invocation of absolute testimonial immunity. Furthermore, Miers was correct to conclude that, given the indisputable Article I power of the House of Representatives to conduct investigations of potential abuses of power and subpoena witnesses to testify at hearings concerning such investigations, the Judiciary Committee has both standing and a cause of action to file an enforcement lawsuit in federal court if the Executive branch blocks a current or former presidential aides’ performance of his duty to respond to a legislative subpoena. See id. at 65–75, 78–94.

DOJ’s arguments to the contrary are rooted in “the Executive’s interest in ‘autonomy[,]’” and, therefore, “rest upon a discredited notion of executive power and privilege.” Id. at 103. Indeed, when DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. 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. See The Federalist No. 51 (James Madison); see also Buckley v.Valeo, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme
countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.

During the hearing that this Court held regarding the parties’ cross-motions for summary judgment, the Court asked DOJ’s counsel whether its absolute immunity assertion with respect to McGahn was somehow different than the absolute immunity that former White House Counsel Harriet Miers had claimed, or whether it was DOJ’s position that the Miers case was simply wrong to conclude that absolute testimonial immunity is not an available legal basis for thwarting compelled congressional process with respect to senior-level presidential aides. Counsel answered “both.” (Hr’g Tr., ECF No. 44, at 31:5–10.) Upon review of the motions and the relevant law, however, it is clear to this Court that the correct response to its inquiry is “neither.” That is, the United States District Court for the District of Columbia has seen these same facts and these same legal arguments before, and DOJ has done little to persuade this Court that the case should turn out differently in the end. Instead, this Court concurs with the thrust of Miers’s conclusion that, whatever the scope of the President’s executive privilege with respect to the information that Congress seeks to compel, and whatever the merits of DOJ’s assertion that senior-level aides are the President’s “alter egos” for the purpose of invoking an immunity, DOJ has failed to bridge the yawning gap between a presidential aide’s right to withhold privileged information in the context of his or her compelled congressional testimony (which no one disputes), and the President’s purported power to direct such aides to refuse to show up and be questioned at all (which appears only in a string of OLC opinions that do not themselves constitute legal precedents and are manifestly inconsistent with the constitutional jurisprudence of the Supreme Court and the D.C. Circuit in many respects).

See Mem. from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, to John D. Ehrlichman, Assistant to the President for Domestic Affairs, Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff” (Feb. 5, 1971) (“1971 Memorandum”).

Judge Brown in the body of the opinion writes:

[I]t cannot be overstated that the 1971 Memorandum does not cite to a single case that stands for the asserted proposition, and the ten-plus subsequent statements by OLC that DOJ points to in support of this immunity simply reference back to the 1971 Memorandum without providing any court authority. It goes without saying that longevity alone does not transform an unsupported notion into law.

As for the logic behind the view, the original memorandum appears to reason by by analogy. … Tellingly, the 1971 Memorandum does not purport to suggest that the law already countenanced such behavior. Rather, the posture of the Memorandum appears to be a policy piece that provides its client with arguments for why it should be thus. Moreover, as Miers notes, Rehnquist admitted that “his conclusions [were] ‘tentative and sketchy,’” Miers, 558 F. Supp. 2d at 104 (quoting 1971 Mem.at 7), and in his later role as a Supreme Court Justice, he “apparently recanted those views[,]” id.

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It is not surprising that, per this initial internal effort to establish the ways in which certain White House staff could prevail in any conflict with Congress over their legally enforceable duty to appear for testimony when subpoenaed, OLC subsequently developed an entire series of statements, each of which references the 1971 Memorandum, but none of which specifically acknowledges that the initial basis for this conclusion was seemingly formed out of nothing.

This is a damning indictment of William Rehnquist and every OLC counsel who later relied upon his memorandum.

Thus—to be crystal clear—what is at issue in this case is solely whether senior-level presidential aides, such as McGahn, are legally required to respond to a subpoena that a committee of Congress has issued, by appearing before the committee for testimony despite any presidential directive prohibiting such a response. The Court distinguishes this issue from the very different question of whether the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege. In other words, “the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides.” Miers, 558 F. Supp. 2d at 56; see also id. (noting that “[t]he specific claims of executive privilege that [a subpoenaed presidential aide] may assert are not addressed and the Court expresses no view on such claims”). And in reaching this conclusion, “[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.” Id. at 105–06. Accordingly, just as with Harriet Miers before him, Donald McGahn “must appear before the Committee to provide testimony, and invoke executive privilege where appropriate.” Id. at 106.

In one passage of the opinion, Judge Brown cites George Orwell’s Animal Farm in a footnote:

Meanwhile, says DOJ, the President has the authority to make unilateral determinations regarding whether he and his senior-level aides (both current and former) will respond to, or defy, the subpoenas that authorized House committees issue during constitutionally authorized investigations of potential wrongdoing within his administration. (See id. at 125:3–6 (counsel asserting that “if the person has testimonial immunity, and the President has asserted it, not the person—it’s the President’s to assert—then, yes, [Congress] wouldn’t be able to compel the person”).11

11 For a similar vantagepoint, see the circumstances described by George Orwell in the acclaimed book Animal Farm. See George Orwell, Animal Farm 141 (Otbe Book Publishing 2018) (“All animals are equal but some animals are more equal than others.”) (capitalization altered).

Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts, congressional committees, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC’s persistent heralding of these and similar propositions).

This opinion is well grounded and is a full victory for the House of Representatives. It will be appealed to the D.C. Circuit Court of Appeals for purposes of further delay as Trump tries to run out the clock. The appellate court is likely to sustain this opinion. It is doubtful that the Supreme Court would accept an appeal from an appellate decision sustaining Judge Brown’s opinion.