Attorney Donald McGahn leaves the Four Seasons hotel in New York, Thursday, June 9, 2016, after a GOP fundraiser. (AP Photo/Mary Altaffer)
On Monday, U.S. District Court Judge Ketanji Brown Jackson ruled that former White House Counsel Don McGahn must testify before the House impeachment inquiry committee.
She rejected the DOJ’s lawyers’ argument that members of the President’s inner circle were entitled to “absolute immunity.” Jackson, an Obama appointee, wrote that “Venerated constitutional principles that animate the structure of our government and undergird our most vital democratic institutions were at stake. It would seem that if one’s access to the Oval Office is the reason that a categorical exemption from compelled congressional process is warranted, then that trump card should, at most, be a raincheck, and not the lifetime pass that DOJ proposes.” (Jackson’s full ruling can be viewed here.)
DOJ lawyers maintained that the President should be able to “seek candid advice from his closest advisors and legal counsel.” They also argued that unelected judges have no business getting involved in disputes between the executive and the legislative branches.
Jackson believes otherwise apparently, writing that the “DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny.”
In his recent speech at a Federalist Society conference, Attorney General William Barr told the audience “the framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts.”
Jackson emphasized her ruling would not preclude McGahn from asserting executive privilege. She wrote, “No one contests … that a senior-level aide in [McGahn’s] position has no right to invoke executive privilege to withhold certain information in the course of his testimony, as appropriate.” However, he would have to do so in person. He must appear before House lawmakers.
A source from within the DOJ told Fox News last night that they plan to appeal this decision and to seek a stay pending their appeal. The ultimate decision in this case cannot be overstated. Adam Schiff, who is leading the Democrats’ efforts to impeach the President, has issued subpoenas to former National Security Advisor John Bolton, Bolton’s deputy Charles Kupperman, and acting Chief of Staff Mick Mulvaney.
House Judiciary Committee chairman Jerry Nadler praised the ruling. He told reporters, “I am pleased the court has recognized that the Trump Administration has no grounds to withhold critical witness testimony from the House during its impeachment inquiry.”
Earlier this year, McGahn had been subpoenaed by Nadler’s committee to testify publicly. He claims McGahn is a “critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Special Counsel’s report.”
The Mueller report states that Trump ordered McGahn to fire Mueller, a request McGahn refused. Then, it alleges Trump asked McGahn to lie about it. So, we’re back to that. The President is accused of obstructing an investigation for a crime that was never committed.
Bill Burck, McGahn’s attorney, issued a statement that said McGahn “will comply with Judge Jackson’s decision unless it is stayed pending appeal.”
On his radio show, the fiery Mark Levin weighed in on Jackson’s ruling. He called the judge a “disgrace.” Levin cut right to the heart of the matter.
She’s a radical leftist and this is truly outrageous.
Now, this is what you need to understand, a president must be able to have legal advice. Must be able to have legal advice without Congress interfering. Whether it’s an impeachment proceeding or any other proceeding. Otherwise, there’s no balance of power because the House of Representatives, unless there’s a criminal investigation, is not subject to any subpoenas.”
If a president can’t turn to a lawyer for legal advice, then it’s a disaster.
So, what she’s doing is she’s tilting the balance of power far away from the president to the Congress. Changing the structure of our government. And the ability of the chief executive to function, to function. There is a circle of advice that a president gets in the inner circle that should be unmolested by these subpoenas.
Well said, Great One.
If the appeal fails, this ruling will set a dangerous precedent. Similar to the Democrats’ decision to base the impeachment of a president upon the leak of a phone call with a foreign leader, this ruling will tie the hands of future presidents and reduce their effectiveness. One by one, Democrats are removing the tools a president requires to conduct the business of running the country. Their ongoing crusade to strip away the powers of the Commander in Chief and turn them over to Congress will weaken not only the presidency, but ultimately the entire country. They must be stopped.