In response to: Former White House counsel Donald McGahn must comply with congressional subpoena, federal judge rulesBy Katherine Faulders, Allison Pecorin Nov 25, 2019, 7:05 PM ET
Former White House counsel Donald McGahn must comply with a congressional subpoena, a federal judge in Washington ruled Monday.
The ruling came in a case brought by the House Judiciary Committee in August in an effort to enforce its subpoena demanding McGahn's congressional testimony about events relating former special counsel Robert Mueller's investigation after President Donald Trump directed him not to comply.
"This court holds that individuals who have been subpoenaed for testimony by an authorized committee of Congress must appear for testimony in response to that subpoena -- i.e., they cannot ignore or defy congressional compulsory process, by order of the President or otherwise," Judge Kentanji Brown wrote in her ruling. "Notably, however, in the context of that appearance, such individuals are free to assert any legally applicable privilege in response to the questions asked of them, where appropriate."
In her decision, the judge wrote that
her conclusion is "inescapable" because subpoenas are legal constructs and not political ones, and "no one is above the law." "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, " Jackson wrote.
In a statement issued following the release of the judge's decision, House Judiciary Committee Chairman Jerrold Nadler said he now expects McGahn to "follow his legal obligations" and appear before the committee.
"Don McGahn is a central witness to allegations that President Trump obstructed Special Counsel Mueller's investigation, and the Administration's claim that officials can claim 'absolute immunity' from Congressional subpoenas has no basis in law, as the court recognized today," Nadler said in the statement.
The judge, sharing Nadler's sentiment, wrote in her finding that
Congress has not been able to get to the bottom of some of the findings in the Mueller report partly because McGahn is "the most important fact witness" in the committee's "consideration of whether to recommend articles of impeachment and its related investigation of misconduct" by the president.White House counsel Pat Cipollone has said, "McGahn is absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior adviser to the president," citing previous opinions from the Department of Justice Office of Legal Counsel, along with OLC guidance that said McGahn specifically is "absolutely immune" from providing such testimony.
McGahn's lawyer, William Burck, previously wrote to Nadler that McGahn "remains obligated to maintain the status quo and respect the president's instructions."
Attorneys for the House wrote in their August complaint that
the "absolute immunity" claim has "no grounding in the Constitution, any statues or case law," and say the president cited "no legal authority" for McGahn -- who is a private citizen -- to defy a congressional subpoena.
In its August lawsuit, the Judiciary Committee wrote that McGahn is a critical witness to determining whether articles of impeachment are necessary.
"The Judiciary Committee is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel," .....