McGahn Ordered to Testify in House Impeachment Probe

Then-White House counsel Don McGahn listens as Supreme court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Sept 27, 2018. (Saul Loeb/Pool Photo via AP, File)

WASHINGTON (CN) — In a ruling that could unlock further testimony from senior Trump administration officials, a federal judge on Monday ordered former White House counsel Don McGahn to testify in the ongoing impeachment inquiry.

Democrats consider McGahn to be a central witness in their ongoing investigation into possible obstruction of justice by President Donald Trump. The Justice Department is expected to appeal the decision by U.S. District Judge Ketanji Brown Jackson on the grounds that McGhan is shielded by the same executive privilege that protects Trump from testifying.

But Jackson called “absolute testimonial immunity” for senior-level aides “baseless” and a “fiction” from the White House legal counsel.

“Compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” the judge wrote in her 120-page opinion.

Presidential aides, the judge added, have a legal obligation to respond to a subpoena to testify no matter how “busy or essential” they may be or “their proximity to sensitive domestic and national-security projects.”

In a footnote, Jackson compares a country in which Trump makes “unilateral determinations” on who will testify to Congress to the world created by George Orwell in “Animal Farm,” including the line from the acclaimed work of fiction “All animals are equal but some animals are more equal than others.”

The House Judiciary Committee sued McGahn in August to enforce its subpoena demanding his testimony, arguing he witnessed “many of the most egregious instances of possible obstructive conduct and attempted coverup” outlined in former special counsel Robert Mueller’s report on Russian interference in the 2016 election.

Former national security adviser John Bolton indicated last week that he was holding out on testifying until a federal judge issued a decision in one of the many lawsuits filed over House subpoenas.

His lawyer Charles Cooper told lawmakers in a letter earlier this month that Bolton “was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies thus far.”

One of the legal battles over House subpoenas involves Bolton’s deputy Charles Kupperman, also represented by Cooper. Kupperman filed a lawsuit in D.C. federal court asking a judge to decide if he is compelled to testify. Acting White House Chief of Staff Mick Mulvaney sought to join the case but has since reversed course and said he will “rely on the direction of the president” to not testify.

House Democrats withdrew Kupperman’s subpoena on Nov. 6, saying “unless your lawsuit was admittedly only for the purposes of delay” he would by guided by the decision in McGahn’s case.

Cooper did not respond Monday to a request for comment on the McGahn ruling. But in his Nov. 8 letter to the House committee chairs steering the impeachment inquiry, the attorney said the decision would not automatically clear the way for testimony from his clients, both longtime Republican advisers with an inside look into White House dealings with Ukraine that are central to the probe.

“Here, unlike McGahn, information concerning national security and foreign affairs is at the heart of the the [sic] Committees’ impeachment inquiry, and it is difficult to imagine any question that the Committees might put to Dr. Kupperman that would not implicate these sensitive areas…The same is true, of course, of Ambassador Bolton,” Copper wrote.

Closing out the letter by telling lawmakers that Kupperman “stands ready” to testify, as does Bolton, Cooper said the committee was mistaken to think his client sought to delay or obstruct “the Committees’ vital investigatory work” and hoped the House would allow the judicial branch to settle the dispute.

Jackson recognized that McGahn, as a White House counsel, had routine “unfettered access” to the president but said the Justice Department failed to prove how “daily contact with copious amounts of information” including materials classified for national security warrants absolute testimonial immunity.

Former White House aides are free to assert any legally applicable privilege and have “ample opportunity to invoke executive privilege or any other lawful basis for withholding information” when responding to questions from lawmakers, she allowed. But they cannot, by order of the president, defy a subpoena to appear before Congress to testify.

If “present frequent occupants of the West Wing or Situation Room must find time to appear for testimony” to Congress, she further explained, then the claim of testimonial immunity also “stops short of covering individuals who only purport to be cloaked with this authority because, at some point in the past, they once were in the President’s employ.”

The Barack Obama appointee was also alarmed by the Justice Department claim that Trump may hold the authority to block current and past aides “for the remainder of their natural life” from speaking openly about their time in the White House.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings,” the judge wrote.

The House Intelligence Committee is hastening to submit a report on its impeachment hearing findings to the Judiciary Committee by the time lawmakers return from Thanksgiving break. The deadline puts the Judiciary Committee on track to begin the next phase of public hearings in December in hopes of voting on impeachment before the year is out.

McGahn was once considered the “most important witness other than the president” in House investigations into whether to impeach the president for obstructing Mueller’s investigation.

The probe receded behind Congress looking into whether Trump pressured Ukraine to investigate his political rival Joe Biden. But the obstruction of justice arm of the impeachment inquiry is expected to reemerge in the House Judiciary hearings next month after evidence from the Roger Stone trial indicated Trump may have lied to Mueller about his knowledge of WikiLeaks releasing Russian-hacked emails.

House Judiciary Chair Jerry Nadler said in a statement on the ruling that he is pleased the court recognized the Trump administration has “no legal ground” to bar “critical” witness testimony.

“Now that the court has ruled, I expect him to follow his legal obligations and promptly appear before the committee,” Nadler said of McGahn.

McGahn, if he chooses to comply with the federal judge’s order Monday, is expected to provide key insight into efforts by Trump to fire former FBI Director James Comey and oust Mueller.

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