Judge rules Trump’s “absolute immunity” claim “fiction,” orders Don McGahn to testify to Congress

McGahn provided Mueller with 30 hours of damning testimony. Now he may be forced to testify before the House

By Igor Derysh

Managing Editor

Published November 26, 2019 10:19AM (EST)

US President Donald Trump (Spencer Platt/Getty Images)
US President Donald Trump (Spencer Platt/Getty Images)

A federal judge rejected the Trump administration’s claim that top aides have “absolute immunity” from testifying to Congress and ruled that former White House counsel Don McGahn must comply with a House subpoena.

U.S. District Court Judge Kentanji Brown Jackson, an Obama appointee, issued a 120-page opinion rejecting all three arguments brought by the Department of Justice, which is representing McGahn in the case.

“The claim that a president’s senior-level aides have absolute testimonial immunity is meritless,” Jackson wrote.

President Donald Trump blocked McGahn’s testimony, arguing that the it was shielded by executive privilege. Jackson ruled that McGahn can invoke executive privilege in his testimony, but he must at least show up and invoke it in person. McGahn’s attorney said in a statement that he is prepared to comply with the ruling but will defer to the Justice Department on next steps. The department formally filed an appeal on Tuesday.

"If a duly-authorized committee of Congress issues a valid legislative subpoena to a current or former senior-level presidential aide, the law requires the aide to appear as directed and assert executive privilege as appropriate,” Jackson ruled. ". . . However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the president doesn't have the power to excuse him from taking an action that the law requires. Fifty years of say so within the executive branch does not change that fundamental truth.”

The White House claimed in a statement that the judge’s decision “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.”

But Judge Jackson wrote that “the primary takeaway from the past 250 years of recorded American history is that presidents are not kings."

"This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control,” the ruling said. “Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the people of the United States and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life."

The subpoena to McGahn predates the ongoing impeachment inquiry, as he had left the administration before many of the events related to Ukraine. But House Democrats want to interview McGahn about the president’s alleged attempts to obstruct justice in former special counsel Robert Mueller’s investigation. McGahn was a star witness in the probe and provided some 30 hours of testimony to investigators.

The Mueller report detailed 10 instances of possible attempts to interfere with the probe. McGahn testified to investigators that Trump “directed him to have to have the special counsel removed” multiple times. McGahn said he threatened to resign over the order. McGahn also told prosecutors that Trump directed him to lie after his order to fire Mueller was reported.

The Mueller report noted that Trump’s efforts were “mostly unsuccessful,” but “that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests.”

Judge Jackson’s ruling could have significant ramifications for other top aides like former national security adviser John Bolton, his deputy Charles Kupperman, and acting White House chief of staff Mick Mulvaney. Kupperman filed a lawsuit asking a judge to rule on whether he must comply with a Congressional subpoena or whether all of his communications with Trump were privileged since he was on the national security adviser’s team. Bolton also joined the lawsuit before the House ultimately withdrew its subpoena when it became clear that the legal battle would stretch longer than Democrats hoped their impeachment proceedings would last. Mulvaney also tried to join the lawsuit, but Kupperman and Bolton argued that his case was separate from theirs because they exclusively advised the president on “highly sensitive matters of national security and foreign policy.”

Jackson’s ruling dealt a blow to the argument that national security aides are exempt from subpoenas. The judge wrote that “absolute testimonial immunity for senior-level White House aides appears to be a fiction” based only on the opinions of the Justice Department’s Office of Legal Counsel and congressional accommodations “that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Jackson added that it does not make any difference “whether aides in question are privy to national security matters or work solely on domestic issues.”

It does not appear that Democrats will pursue their testimonies, however. House Intelligence Chairman Adam Schiff, D-Calif., said Monday that he would not let ongoing court battles to derail the Democrats’ “overwhelming” case against Trump.

“We cannot be at the mercy of the courts,” Speaker of the House Nancy Pelosi also told reporters last week. “The courts are very important in all of this. Those cases will continue. But I have never said we cannot proceed without the courts, because that's a technique on the part of the administration: just keep ratcheting up to a higher court.”

Though Mulvaney publicly admitted to a “quid pro quo” before trying to walk his own comments back and Bolton was allegedly so perturbed that members of the Trump administration pressured Ukraine to investigate former Vice President Joe Biden that he instructed an aide to contact White House lawyers and labeled the scheme a “drug deal,” Schiff told NBC News on Sunday that Democrats already have all the evidence they need.

“We’ve already accumulated quite overwhelming evidence that the president, once again, sought foreign interference in an election — conditioned official acts of a White House meeting that Ukraine desperately wanted, as well as $400 million of bipartisan taxpayer funding — to get these political investigations that he thought would help his re-election,” Schiff said. “There are still other witnesses, other documents that we’d like to obtain. But we are not willing to go the months, and months and months of rope-a-dope in the courts, which the administration would love to do.”

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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