Must testify

Don McGahn must testify about time as White House lawyer, judge rules

The decision is expected to put pressure on other reluctant witnesses to testify, but it may not shift the timing of Democrats’ impeachment inquiry.

By DARREN SAMUELSOHN, KYLE CHENEY and ANDREW DESIDERIO

Don McGahn must testify to Congress about his time as the White House’s top lawyer, a federal judge ruled Monday — a decision that will put pressure on other reluctant Trump administration witnesses to testify about President Donald Trump’s actions.

In an opinion that could reshape the balance of power between Congress and the executive branch, U.S. District Court Judge Ketanji Brown Jackson said that McGahn, who spent 30 hours talking to former special counsel Robert Mueller’s team, can’t hide behind Trump’s claim that he is “absolutely immune” from speaking to the House Judiciary Committee.

The ruling also has immediate implications for House Democrats’ impeachment inquiry. It brings them one step closer to a trove of new testimony related to Mueller’s evidence of obstruction of justice — and it could prompt a handful of witnesses in the even more perilous Ukraine probe to testify over the president’s objections. But a potentially lengthy appeals process looms and could postpone any benefits Democrats hoped to gain in the short-term.

Justice Department lawyers had argued that “absolute immunity,” a designation reserved for a select few members of the president’s inner circle, is essential to protecting the president’s ability to seek candid advice from his top advisers. They also insisted the federal courts had no role trying to get between a dispute between the other two branches of government.

But Jackson, an appointee of President Barack Obama, rejected both arguments.

“DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards,” Jackson wrote in her 120-page opinion. “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.”

Jackson called absolute immunity “a fiction” that has been propagated by a succession of presidential administrations by simply repeating it as a fact while avoiding testing the principle in court.

A Justice Department spokeswoman quickly indicated the department would appeal the ruling. Democrats say Jackson's opinion should still take effect immediately to prevent the president from running out the clock on their impeachment probes. That makes any additional decision by Jackson or an appellate court panel about whether to halt Monday’s order until any DOJ appeal is resolved a pivotal moment in the Democrats’ fast-moving impeachment effort.

Bill Burck, McGahn’s attorney, said the former White House counsel “will comply with Judge Jackson’s decision unless it is stayed pending appeal.”

McGahn’s testimony could reinvigorate Congress’s stalled efforts to probe Trump’s potential obstruction of justice during the Mueller probe. In his final report, Mueller detailed numerous instances in which Trump attempted to interfere with or even shut down the special counsel’s investigation.

Mueller left the decision on whether to punish Trump to Congress, but the Justice Department has blocked lawmakers from viewing much of his underlying evidence and the White House has opposed lawmakers’ efforts to seek testimony from some of the special counsel’s most important witnesses.

More significantly, Jackson’s ruling could also fuel Democrats’ investigation into Trump’s posture toward Ukraine, which has already brought the president to the brink of being impeached.

Trump has indicated that at least three senior aides sought by Democrats — former national security adviser John Bolton, Bolton’s deputy, Charles Kupperman, and acting chief of staff Mick Mulvaney — are “absolutely immune” from testifying in the impeachment probe.

In her ruling, Jackson emphasizes that arguments that former White House aides enjoy “immunity” from congressional testimony are even more spurious.

“[I]t would seem that if one’s access to the Oval Office is the reason that a categorical exemption from compelled congressional process is warranted,” she writes, “then that trump card should, at most, be a raincheck, and not the lifetime pass that DOJ proposes.”

This aspect of Jackson’s ruling could become relevant as Kupperman has sought legal clarity about whether he is permitted to testify or must defer to the president’s “absolute immunity” claim. Jackson answers the question flatly.

It’s not clear, though, that even this favorable ruling will slow Democrats’ march toward impeachment as they work to scoop up more evidence. In a letter to colleagues Monday from House Intelligence Chairman Adam Schiff, the leader of the Ukraine probe, the California Democrat wrote that he’s unwilling to let ongoing court battles sideline the Democrats’ “overwhelming” case against Trump.

But the House has also signaled it is ready to take advantage of any legal wins it can chalk up in the meantime.

“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,” said Rep. Jerrold Nadler (D-N.Y.), the Judiciary Committee chairman.

The chamber’s lead counsel, Doug Letter, wrote in a recent court filing that the Judiciary Committee could arrange for McGahn’s testimony next month while also beginning to consider articles of impeachment.

One potential limitation: Jackson underscored that her ruling was silent on executive privilege, which means McGahn and any other witness who comes before Congress may still decline to answer questions but must do so on a case-by-case basis. Jackson said she set aside questions of privilege under an agreement with the House and the Justice Department to resolve the immunity question more quickly.

“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,” Jackson notes.

Multiple witnesses in the House’s Ukraine probe described Bolton as opposing Trump’s decision to withhold a $400 million package of military aid to Ukraine. The move came as Trump and his personal lawyer Rudy Giuliani were pressuring the country’s new president to investigate Trump’s political adversaries.

Mulvaney acknowledged at an Oct. 17 press conference that the aid freeze was connected to Trump’s demand for investigations, but he later retracted his comments and has said little on the subject since. Other witnesses have described Mulvaney as a central player in what they say was a quid pro quo, in which Trump conditioned the military aid and a White House visit on Ukraine opening up the politically advantageous probes.

The House subpoenaed Kupperman but later withdrew their demand after he sued and sought a judge’s ruling on the matter. Democrats accused Kupperman, and by extension Bolton, of a delay tactic since court proceedings could take months. They instead urged the two men to honor Jackson’s ruling in the McGahn matter since it has always been expected this month.

Kupperman and Bolton haven’t signaled whether they’ll voluntarily comply with the McGahn result. The duo’s attorney, Charles Cooper, has noted significant differences between their cases and the Democrats’ demands to hear from McGahn. That’s because a judge in the one previous court case that dealt with “absolute immunity” determined that “national security” could be a valid reason to invoke the protection.

While McGahn’s purview at the White House was broad and touched on many subjects, Bolton and Kupperman dealt in their work almost exclusively on matters that would fall into that protected category, Cooper said.

Mulvaney also tried to join Kupperman’s suit but he quickly backed down and later opted against filing his own litigation.

The Mueller report in recent weeks has taken a backseat to the Ukraine investigation, though Letter’s court filing last week said the Judiciary Committee was eyeing an impeachment hearing next month that would again seek to include McGahn’s testimony.

At the same time, House Speaker Nancy Pelosi and other top Democrats have insisted they won’t hinge their impeachment strategy on the outcome of pending judicial rulings.

“We cannot be at the mercy of the courts,” Pelosi 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.”

McGahn sat for five voluntary interviews with Mueller staffers starting in late 2017, and his recurring role in the special counsel’s final report made him a prime witness for House investigators before the Ukraine scandal broke. Democrats in April issued a subpoena for documents and testimony from McGahn, but he skipped out on a scheduled hearing appearance with backing from a new DOJ legal opinion.

White House and Democratic lawyers negotiated through the summer but failed to reach a deal to get McGahn’s testimony, prompting the House’s lawsuit in August.

Jackson’s ruling for the House arrives as the Trump administration has amplified its criticism of the Democrats' attempts to take their oversight efforts to the courts. In a speech earlier this month to a prominent group of legal conservatives, Attorney General Bill Barr decried efforts to involve judges in resolving legal disputes like the one over McGahn’s testimony.

“The framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches,” Barr told a Federalist Society conference in Washington, D.C. “The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts.”

There have been only a couple of cases in recent years where judges waded into similar disputes over executive branch information demanded by lawmakers conducting Congressional investigations.

In both instances, Justice Department attorneys argued that the courts should essentially butt out of the fights. And in both battles, federal judges in Washington turned down those arguments.

In 2008, U.S. District Court Judge John Bates — an appointee of President George W. Bush —  rejected claims that top aides to Bush were immune from subpoenas demanding testimony about Bush’s firing of nine U.S. attorneys. Notably, Bates specified that immunity might apply in matters of national security or foreign policy, a caveat that Bolton and Kupperman’s lawyers have emphasized.

And in 2013, U.S. District Court Judge Amy Berman Jackson — an Obama appointee — turned down the Justice Department’s effort to throw out a GOP-led lawsuit seeking to force the disclosure of more information about the handling of a controversial gun-trafficking investigation known as Operation Fast and Furious.

The Justice Department appealed both cases, but there was never any definitive, precedent-setting ruling because of deals worked out to resolve the disputes.