Former White House counsel McGahn must comply with House subpoena, judge rules

WASHINGTON (WASHINGTON POST) - Former Trump White House counsel Donald McGahn must comply with a House subpoena, a federal court ruled on Monday (Nov 25), finding that top presidential advisers cannot ignore congressional demands for information and raising the possibility that Mr McGahn could be forced to testify as part of the impeachment inquiry.

In a 118-page decision, US District Judge Ketanji Brown Jackson of Washington found no basis for a White House claim that the former counsel is "absolutely immune from compelled congressional testimony", likely setting the stage for a historic separation-of-powers confrontation between the government's executive and legislative branches.

The House Judiciary Committee went to court in August to enforce its subpoena for Mr McGahn, whom lawmakers consider the "most important" witness in whether Mr Trump obstructed justice in special counsel Robert Mueller's investigation of Russian interference in the 2016 US election.

President Donald Trump blocked Mr McGahn's appearance, saying the attorney had cooperated with Mr Mueller's probe, was a key presidential adviser and could not be forced to answer questions or turn over documents.

Judge Jackson disagreed, ruling that if Mr McGahn wants to refuse to testify, such as by invoking executive privilege, he must do so in person and question by question.

The Justice Department's claim to "unreviewable absolute testimonial immunity", Judge Jackson wrote, "is baseless, and as such, cannot be sustained".

"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," Judge Jackson wrote in the 118-page opinion.

"Fifty years of say so within the Executive branch does not change that fundamental truth."

The House lawsuit against Mr McGahn was the first filed by Democrats to force a witness to testify since they retook control last year. The Justice Department, which is representing Mr McGahn, is expected to appeal Judge Jackson's ruling.

Judge Jackson's decision had been highly anticipated, with major implications for other high-value witnesses in the Democrats' ongoing impeachment investigation, including former national security adviser John Bolton and Mr Bolton's deputy, Mr Charles Kupperman.

Since the House lawsuit began, a complaint this summer by an intelligence community whistleblower triggered a formal congressional impeachment inquiry into Mr Trump's request that Ukraine investigate former vice-president Joe Biden - a potential 2020 political rival - and his son Hunter Biden.

The House Intelligence Committee recently held public hearings as part of the inquiry, centred on a July 25 call from Mr Trump allegedly pressuring Ukraine's leader to investigate Mr Biden and his son.

Democrats are debating whether articles of impeachment should include obstruction of justice allegations outlined by Mr Mueller, and Mr McGahn could be a crucial witness.

"Given that the House's impeachment inquiry is proceeding rapidly, the Committee has a finite window of time to effectively obtain and consider McGahn's testimony," House General Counsel Douglas Letter wrote last week in asking the judge to move quickly.

"The Judiciary Committee anticipates holding hearings after (the) public hearings have concluded and would aim to obtain Mr McGahn's testimony at that time," Mr Letter wrote.

The House Judiciary Committee is continuing to investigate obstruction of justice allegations detailed in Mr Mueller's 448-page report, which mentioned Mr McGahn's statements more than 160 times.

For instance, on June 17, 2017, three days after The Washington Post reported that the special counsel was investigating whether the President had obstructed justice and a month after Mr Mueller was appointed, Mr Trump called McGahn at home twice and directed him to fire Mr Mueller over alleged conflicts of interest, the House's lawsuit stated, citing Mr Mueller's report.

Mr Mueller's report ultimately concluded that it was not the special counsel's role to determine whether the President broke the law.

Mr Trump's July call to Ukraine came one day after Mr Mueller testified to Congress about his probe's conclusions.

Mr William Burck, Mr McGahn's attorney, said, "Don McGahn will comply with Judge Jackson's decision unless it is stayed pending appeal. DOJ is handling this case, so you will need to ask them whether they intend to seek a stay."

Mr Burck has said that Mr McGahn does not believe he witnessed any violation of law, and that the President instructed him to cooperate fully with Mr Mueller but not to testify without agreement between the White House and the committee.

Judge Jackson's ruling dealt a blow to the Trump administration's assertion of executive-branch power against inquiries by the legislative branch.

The position was stated by current White House counsel Pat Cipollone in an Oct 9 letter in which he said the administration will not cooperate with the House impeachment inquiry.

The ruling does not mean that Mr McGahn will have to immediately appear before Congress under his April 22 subpoena.

The Justice Department can ask the judge to put her ruling on hold, and if she declines, ask the appeals court to temporarily stay the opinion.

However, Mr Jonathan Shaub, a former attorney in the Justice Department's Office of Legal Counsel, said a ruling against Mr McGahn will "provide cover for other witnesses, especially former employees who are inclined to testify but feel compelled by the White House's direction not to".

Even if Congress prevails in the courts, Mr McGahn could appear before the committee but still decline to answer certain questions.

Mr McGahn could assert a separate claim of executive privilege and refuse to respond to specific questions about conversations with the President, for instance, unless he is authorised to do so by the White House.

An appeal and binding circuit court ruling could set up a historic Supreme Court test over the Constitution's checks and balances, pitting Congress's impeachment and oversight authority against the powers of the presidency.

Congressional subpoena fights normally are settled through compromise between branches of the government to avoid the risk that either side suffers a definitive constitutional defeat.

That is what occurred in 2008, when the White House and Congress reached an accommodation to avert a binding appeals court ruling after US District Judge John Bates - a George W. Bush appointee, former presiding judge of the Foreign Intelligence Surveillance Court and deputy independent counsel of the Whitewater probe into president Bill Clinton - rejected Mr Bush's bid to block testimony of his former counsel Harriet Miers to a House Judiciary Committee on the controversial firings of US attorneys.

The Bush administration's claim of "absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law", Judge Bates wrote.

The parties eventually agreed on questioning behind closed doors and release of a public transcript, mooting the case.

But the Justice Department's Office of Legal Counsel has argued that Judge Bates's decision is mistaken.

House Democrats were closely watching the outcome of Mr McGahn's case because of how it might affect other impeachment-related witnesses.

The House Intelligence Committee-led inquiry seeks testimony from Mr Bolton and had issued - but then withdrew - a subpoena to Mr Kupperman, Mr Bolton's deputy, while courts addressed the White House's blanket immunity claim.

Mr Charles Cooper, the lawyer who represents Mr Bolton and Mr Kupperman, has said the two will not participate in the House impeachment inquiry until a federal judge resolves the dispute.

Secretary of State Mike Pompeo has also rebuffed a House subpoena for department records in the Ukraine probe.

In Mr McGahn's case, at a hearing on Oct 31 before Judge Jackson, Assistant Attorney-General James Burnham argued that the House "as a general proposition" can never sue the executive branch, nor compel top White House aides to appear.

Mr Letter, the House general counsel, told the court that "the Judiciary Committee cannot fulfil its constitutional investigative, oversight and legislative responsibilities - including its consideration of whether to recommend articles of impeachment - without hearing from (Mr McGahn)."