Federal District Court Judge Ketanji Brown Jackson delivered a victory for Congress in a 120-page decision that former White House counsel Don McGahn must appear for testimony before the House Judiciary Committee. I previously wrote that the White House was wrong in blocking the appearance of witnesses like McGahn as opposed to invoking executive privilege over certain areas of testimony. Accordingly, I believe the opinion is the correct one but this does not end the struggle with Congress. Indeed, it may be just the beginning of the real struggle over privilege as opposed to immunity. Update: As expected, McGahn is appealing the ruling which will certainly achieve the purpose of delay but ultimately magnify the loss in precedent for the White House.
Jackson at times allowed the rhetoric to out pace the analysis in declaring, for example, that “presidents are not kings” and “this means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. 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…” I am not sure that seeking review on a claim of immunity is the same as a president declaring oneself king or former presidential aides vassals.
Nevertheless, I fail to see the basis for the extreme position stated by the White House on immunity (as opposed to more credible privilege-type arguments) – a criticism that I have had with a number of current cases moving through the courts. These cases seem crafted with a greater interest in ultimate delay rather than the decision in the litigation. That strategy however continues to pile up losses for the White House – precedent that will bind future presidents.
One small victory however came on the same day when late Monday the Supreme Court blocked a House subpoena directing President Donald Trump’s accounting firm to turn over financial documents. The Court will still reviewing the case and the order does not indicate the view of the merits of the case.
The McGahn ruling means that he must appear but the White House could seek an appellate review or, if he appears, instruct him not to answer questions on conversations with the President. The former option is the most likely. While Congress can cite the decision as evidence that the White House is making meritless claims to denying witnesses and evidence to Congress, this is a decision that does not address the more substantive privilege claims. I still believe that Congress cannot seek to impeach a president based on his seeking judicial review of conflicts with Congress, particularly when the House is moving on an expediting basis for a vote by the end of December.