Court: McGahn Must Appear To Testify Before Congress

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. 

127 thoughts on “Court: McGahn Must Appear To Testify Before Congress”

  1. Maybe these Obama judges are correct about open transparency about everything.

    Pres Trump, in the name of National Security should just release, unredacted, all the records related to congressmen/senators, their staffs, the judges, their staffs, the lobbyist, government contractor & anyone within 6 degrees of contact with any of the above.

    https://www.zerohedge.com/political/john-solomon-everything-changes-ukraine-scandal-if-trump-releases-these-documents

  2. Isn’t this an indication that the Mueller inquiry is still part of the impeachment inquiry? (Kind of a zombie part, politically, but also a pathfinder for the newer allegations.)

    H. Rept. 116-266:

    “The House Judiciary Committee’s investigation of these [special counsel obstruction] allegations as part of its impeachment investigation remains ongoing.”
    https://www.congress.gov/congressional-report/116th-congress/house-report/266/1?s=2&r=1

  3. now we just need to elect a real congress instead of one where near half can’t take the oath of office without immediately violating it four times.

    1. You misunderstood the Breitbart article

      She has changed her mind again. She recants censure and is now pushing impeachment again. Thus a black woman has been told what to do presumably by an older white woman

      Big tent huh?

      https://www.detroitnews.com/story/news/politics/2019/11/26/brenda-lawrence-backs-off-censure-supports-impeachment/4307461002/

      Lawrence backs off call for censure, reinforces impeachment support
      Beth LeBlanc, The Detroit News

      Published 12:53 p.m. ET Nov. 26, 2019

      Democratic U.S. Rep. Brenda Lawrence is walking back statements she made on a Detroit area podcast Sunday in which she seemed to be wavering on her support of President Donald Trump’s impeachment.

      Lawrence of Southfield issued a Tuesday statement noting she was an early supporter of Trump’s impeachment inquiry and found Senate Republicans behavior regarding the impeachment “unacceptable.”

      “The House Intelligence Committee followed a very thorough process in holding hearings these past two weeks,” Lawrence said. “The information they revealed confirmed that this president has abused the power of his office, therefore I continue to support impeachment.”

      1. estovir:

        “You misunderstood the Breitbart article.”

        ******************
        No, I didn’t. That’s what a trial balloon is – a sacrificial lamb. The French coined the term to refer to an unmanned, expendable balloon launched to see which way the winds were blowing before launching a manned one. You gauge reaction knowing you’ll likely have let it go eventually. That’s why its not a “trial rocket.” Apparently, the push back was swift and furious meaning it’ll have to wait until another day. Nadler is the next stop on the “Train to Oblivion” so perhaps he can soft peddle the censure stop.

        https://politicaldictionary.com/words/trial-balloon/

        1. Apparently, the push back was swift and furious meaning it’ll have to wait until another day.

          Interesting. In medicine we stopped using blacks as sacrificial subjects especially with the fiasco of the Tuskegee Study of Untreated Syphilis in the Negro Male up until the 1970s. But if what you are saying is true, Brenda didnt mind being used as a trial balloon.

          1. Moses demonstrated acumen, resolve and leadership.

            “Crazy Abe” Lincoln gave you the correct, compassionate, comprehensive and definitive solution you seek.

            “Get up on Old Paint and get the —- where you ain’t,” Anonymous.
            _____________________________________________________

            “My first impulse would be to free all the slaves, and send them to Liberia, to their own native land.”

            – Abraham Lincoln

            “If all earthly power were given me,” said Lincoln in a speech delivered in Peoria, Illinois, on October 16, 1854, “I should not know what to do, as to the existing institution [of slavery]. My first impulse would be to free all the slaves, and send them to Liberia, to their own native land.” After acknowledging that this plan’s “sudden execution is impossible,” he asked whether freed blacks should be made “politically and socially our equals?” “My own feelings will not admit of this,” he said, “and [even] if mine would, we well know that those of the great mass of white people will not … We can not, then, make them equals.”

          2. “Poor Poor Pitiful Me”
            Linda Ronstadt

            Well I lay my head on the railroad track
            Waiting on the Double E
            But the train don’t run by here no more
            Poor poor pitiful me
            Poor poor pitiful me
            Poor poor pitiful me
            Oh these boys won’t let me be
            Lord have mercy on me
            Woe woe is me

            Well I met a man out in Hollywood
            Now I ain’t naming names
            Well he really worked me over good
            Just like Jesse James
            Yes he really worked me over good
            He was a credit to his gender
            Put me through some changes Lord
            Sort of like a Waring blender
            Poor poor pitiful me
            Poor poor pitiful me
            Oh these boys won’t let me be
            Lord have mercy on me
            Woe woe is me

            Well I met a boy in the Vieux Carres
            Down in Yokohama
            He picked me up and he threw me down
            He said “Please don’t hurt me Mama”
            Poor poor pitiful me
            Poor poor pitiful me
            Oh these boys won’t let me be
            Lord have mercy on me
            Woe woe is me

            Poor poor poor me
            Poor poor pitiful me
            Poor poor poor me
            Poor poor pitiful me
            Poor poor poor me
            Poor poor pitiful me

      2. “She has changed her mind again. She recants censure and is now pushing impeachment again. Thus a black woman has been told what to do presumably by an older white woman”

        Sounds like an Enigma type policy.

  4. Come on Jon, you know that this will be appealed all the way to the Supreme Court, the one entity charged with responsibility of resolving disputes between the legislative and Executive branches. Very few suits like this are settled at the lowest level.

  5. It may be true that, in general, “seeking review on a claim of immunity is [not] the same as a president declaring oneself time or former presidential aides [sic] effective vassals.” However, it does not follow from this that seeking review on a baseless claim of absolute immunity, which is completely foreign to the constitutional system and any American principle of government, and which, as Professor Turley acknowledges, was made without a good-faith basis and was “crafted with a greater interest in ultimate delay rather than the decision in the litigation”, is NOT effectively the same as declaring oneself a king and one’s aides vassals. It is a stupendous denial of reality to all but insist on Trump formally declaring himself to be a king and his aides vassals (if he even knew what that word meant) before acknowledging that, by advancing such a totalitarian claim, he is impudently attempting to establish himself as a king by another name, by any means that he thinks are available to him, the courts and separation of powers be damned. It is not clear why the judge simply did not dismiss this claim as a facially invalid defense. I suspect it was due to the political necessity of speaking to the claim directly because the president is making it, but it is better for democracy and the republic that the opinion exists than that it did not.

  6. Mcgahn might want to think twice before testifying, trump’s personal lawyer is in jail, his “other” personal lawyer is under federal and state investigation.

      1. it’s always been the case that chumps will attack the lawyer of a famous person that many people dont like

        goes with the territory but Democrat leadership has been more effective at deterring good lawyers from taking on difficult cases, by terrorizing and smearing them

        this is why NY V Sullivan needs to go; slander is now the coin of the realm in media

  7. “Even though Mueller was authorized, as he put it in the special counsel report, to investigate ‘the Russian government’s efforts to interfere in the 2016 presidential election,’ the report is silent of efforts to investigate Russia’s role in feeding Steele misinformation.”
    https://thefederalist.com/2019/11/26/new-fusion-gps-info-confirms-the-special-counsel-probe-was-a-hit-job/?utm_source=The+Federalist+List&utm_campaign=c714e6f40a-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-c714e6f40a-79248369

    1. Olly, here’s a passage from your article that could be interpreted to mean different things.
      …………………………………..
      During her October appearance before that Democratic-controlled Committee, Rep. Jim Jordan asked Hill whether she thought the Steele dossier was Russian propaganda.

      The Russian expert said that she was not “in a position to assess that,” but “that I felt that it [should] also be looked at and investigated.” Hill added that she believed “that the Mueller report and Mr. Mueller and his team did look at some of this information.”

      But Hill then noted that she would “have much preferred to see . . . [the] Mueller report focusing at the outset on what was in [the Steele] dossier that the Russians were doing and then, as the course of that, following the ‘investigative leads, which, you did in any case to find out what doors were opened for them into our political system.”
      …………………………………

      Here Hill says she’s ‘not’ in a position to assess if the The Steele Dossier is propaganda. But she would like to have seen Mueller focus more on the dossier. That would have meant an examination of the so-called ‘Pee Party’ and the facts surrounding it.

      This aspect of the Steele Dossier would have been explosive. Trump and his defenders might have screamed ‘foul play’ had Mueller really examined the Pee Party. The basic facts may have indicated that Trump might well have hosted a circle of high class prostitutes.

      Mueller may have revealed that Trump’s private jet left Moscow in the Pre-Dawn hours on the night of the Pee Party. I have read it did in the few articles that dared to address the issue. For some reason Trump was itching to leave Moscow after a late night party in his hotel suite.

      The point is that a thorough investigation of the Pee Party might have revealed a set of circumstances that looked highly incriminating to Trump. This could be what Hill was really alluding in her testimony.

      One should note that in her testimony last week, Hill unequivocally stated that Trump was pursuing a Russian conspiracy theory with regards to Hillary’s server being in Ukraine. So if Hill was credible in that testimony, “The Federalist” is presumptuous in suggesting that Hill’s references to “The Steele Dossier’ are beneficial to Trump.

      It could easily be that Hill thinks aspects of The Steele Dossier deserved full examination.

        1. Here again Estovir demonstrates that he has no capability for serious debate. Instead he alternates between Pious Catholic and mean-spirited buffoon.

          1. Here is some religious art for you to admire to work on your intolerant, judgmental ways and legions of Catholic bigotry

      1. LOL! Yeah, go with that.

        It is delusional to believe Mueller (Weissmann) left any potentially harmful stone unturned after 2 years. Mueller may have not known about Steele or his dossier, but Weissmann and team certainly would have. It’s also logical to conclude they didn’t include it in the final report because they would have had to make a conclusion on it that would undermine everything they had worked towards.

        Your delusions are going to be confronted by the IG and Durham realities. We’ll all see what Mueller’s investigation and subsequent report mysteriously omitted.

        Good luck.

        1. Olly, dont assume that I believe Trump requested the pee part. I believe Trump when he said that he’s a germaphobe who would never get off on that.

          But the Russian prostitutes may have been directed by their handlers to start peeing when Trump was nearing climax. On hidden cameras that may looked about as incriminating as it gets.

          So Trump may have been grossed out and decided to leave Moscow as soon as the prostitutes left his suite. Though Trump may have learned shortly afterward that a certain ‘Pee Party’ was captured on tape.

          Again, Robert Mueller may have had no serious desire to probe the Pee Party. It might have been the third rail he didnt want to touch. By avoiding it Mueller may have done Trump a huge favor.

              1. Mespo, I notice more and more frequently that Trump defenders here have no rebuttals to offer. One suspects defending Trump is decidedly too much work.

                1. “Mespo, I notice more and more frequently that Trump defenders here have no rebuttals to offer.”
                  *********************
                  They do have them but the arguments offered are so patently ridiculous or half-baked the only appropriate response is ridicule. It’s an old Jeffersonian observation best spoken by the great man himself:

                  “Ridicule is the only weapon which can be used against unintelligible propositions. ideas must be distinct before reason can act upon them.”

                  ~Thomas Jefferson to Francis Adrian Van der Kemp, 30 July 1816

                2. One suspects defending Trump is decidedly too much work.

                  Your current tack is contending a Biden family scandal is a reason to impeach Trump. There’s a reason people don’t take you terribly seriously.

        1. Is that a “thing?” Oh, it’s a book. Thank you.

          At first glance, FPR appears to be yet another “interpretation” by a human being, namely one J. Jackson Owensby. I, by contrast, adhere to the definitive, irrefutable and immutable statement by Hamilton that the singular consideration by actual Americans be the “manifest tenor,” the clear and obvious meaning and intent, of the text of American fundamental law, the Constitution and Bill of Rights. An example being Article 1, Section 8 which enumerates the power of Congress to tax for “…general Welfare…” and deliberately omits and, thereby, deliberately excludes any power of Congress to tax for individual welfare, aka anathematic and communistic redistribution of wealth.

          A nation of laws has no choice but the “manifest tenor” and the entire American welfare state is a discrepancy awaiting correction.
          ________________________

          “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

          “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

          – Alexander Hamilton

  8. Madison might have said the greatest threat to our democracy was the Legislature, but Jefferson said the greatest threat was the federal judiciary.

    1. The greatest threat to the American restricted-vote republic, as established in 1789, is the singular failure of the judicial branch, with emphasis on the Supreme Court, to implement the “manifest tenor” of the fundamental law. “Legislation from the bench” is treason.
      _______________________________________________________________________________________________________

      “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton
      _________________

      We gave you “…a republic, if you can keep it.”

      – Ben Franklin, 1787

      We gave you “…a republic, if you can take it back.”

      – Ben Franklin, 2019

  9. Nevertheless, I fail to see the good-faith basis for the extreme position stated by the White House…hat strategy however continues to pile up losses for the White House – precedent that will bind future presidents.

    Here, let me help your eyesight, from my Joe Citizen cheap seat. The President has been under siege for 3 years. Barr, Horrowitz and Durham will detail activities, crimes and those involved to undo the 2016 election. Had none of that occurred, McGahn and others would never have been in the cross-hairs of congress in the first place. This administration has losses and wins related to the BS investigations and obstructing policy initiatives. He has a ton of wins on the economy, trade, courts, regulations, etc. Those wins have a national reach compared with the coup effort that has just pissed people off.

    Precedent will be set once it’s been revealed the extent of rogue power in the 4th branch (administrative) unelected bureaucracy. This is where the legislative needs to take back law-making authority and it’s proper role in oversight.

  10. “Mr. Chairman, I respectfully refuse to answer this question on the grounds of attorney-client and/or executive privilege.” X 1000

    1. Mark,
      When is supposed whataboutism not a logical fallacy, but a defense against projection? The Left seems to have mastered projection and when their hypocrisy is called out, they charge it as whataboutism.

      1. Olly:

        “When is supposed whataboutism not a logical fallacy, but a defense against projection?”
        ******************
        No such thing as “whataboutism.” It’s actually comparing similar cases to see if the results are similar and thus logically consistent. Around the courthouse, we call it stare decisis; at home it’s called being fair; in the Dim circles it’s called “I cant think of a counter-argument to the counter-example you said, thus demonstrating the unfairness of my argument, ergo I have to say something madeup.”

        1. Around the courthouse, we call it stare decisis; at home it’s called being fair;

          I believe the average citizen recognizes what is fair. That’s why this impeachment charade has worked against the resistance. It’s why the Horrowitz and Durham investigations will prove the resistance to be the most effective organization to reelect a president in history.

        2. mespo…….great explanation! Wish that last quote could fit on a bumper sticker.
          Actually it probably would fit on the stretched bumpers of the stretch limos of ” Limousine Liberales.”
          Their numbers are legion, ’cause, you know, they’re trying to save the planet from pollution/auto emissions.

  11. She was on Obama’s short list to replace Justice Scalia which makes perfect sense given her dearth of cognitive skills not including scholarly reference in her 120 pages to Jesse Jackson’s Rainbow PUSH Coalition. It is baffling she didnt reference BLM

    But hey, her husband is a surgeon so she cant be all that stupid

  12. You mean a confidential employee who acted as legal counsel must testify? Looking forward to the sergeant at arms bringing judge Jackson’s clerks in and chaining them to the chair until they testify.

    Obama appointee. Why does that not surprise me?

    1. And why would jackson’s clerks need to testify, oh yea, forgot about whataboutism? You are in a rut, it must suck being you.

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