In a widely anticipated ruling that could have an impact on the pace and format of future hearings on the impeachment of the President, a Federal Judge has ruled that former White House Counsel Donald McGhan cannot be barred from appearing before Congress:

Former Trump White House counsel Donald McGahn must comply with a House subpoena, a federal court ruled Monday, finding that “no one is above the law” and that top presidential advisers cannot ignore congressional demands for information. The ruling raises the possibility that McGahn could be forced to testify as part of the impeachment inquiry.

U.S. District Judge Ketanji Brown Jackson of Washington found no basis for a White House claim that the former counsel is “absolutely immune from compelled congressional testimony,”setting the stage for a historic separation-of-powers confrontation between the executive and legislative ­branches of the ­government.

The House Judiciary Committee went to court in August to enforce its subpoena of McGahn, whom lawmakers consider the “most important” witness in whether President Trump obstructed justice in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election.

Trump blocked McGahn’s appearance, saying McGahn had cooperated with Mueller’s probe, was a key presidential adviser, and could not be forced to answer questions or turn over documents.Jackson disagreed,ruling that if McGahn wants to refuse to testify, such as by invoking executive privilege, he must do so in person and question by question.

The Justice Department’s claim to “unreviewable absolute testimonial immunity,” Jackson wrote, “is baseless, and as such, cannot be sustained.”

The judge ordered McGahn to appear before the House committee and said her conclusion was “inescapable” because a subpoena demand is part of the legal system — not the political process — and “per the Constitution, 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 118-page opinion. “Fifty years of say so within the Executive branch does not change that fundamental truth.”

The House lawsuit against McGahn was the first filed by Democrats to force a witness to testify since they retook control of the chamber early this year.

The Justice Department early Tuesday filed a notice of appeal saying in a brief filing that McGahn, its client, was asking for a review by the U.S. Court of Appeals for the District of Columbia.

William A. Burck, McGahn’s attorney, had said McGahn would comply with Jackson’s decision “unless it is stayed pending appeal.’

Burck also has said that McGahn does not believe he witnessed any violation of law, and that the president instructed him to cooperate fully with Mueller but not to testify without agreement between the White House and the committee.

The White House said in a statement Monday that the decision “contradicts longstanding legal precedent established by Administrations of both political parties. We will appeal and are confident that the important constitutional principle advanced by the Administration will be vindicated.”

In addition to last night’s statement from the White House, the President also tweeted about the decision this morning:

The D.C. Wolves and Fake News Media are reading far too much into people being forced by Courts to testify before Congress. I am fighting for future Presidents and the Office of the President. Other than that, I would actually like people to testify. Don McGahn’s respected….

— Donald J. Trump (@realDonaldTrump) November 26, 2019

…lawyer has already stated that I did nothing wrong. John Bolton is a patriot and may know that I held back the money from Ukraine because it is considered a corrupt country, & I wanted to know why nearby European countries weren’t putting up money also. Likewise, I would….

— Donald J. Trump (@realDonaldTrump) November 26, 2019

…love to have Mike Pompeo, Rick Perry, Mick Mulvaney and many others testify about the phony Impeachment Hoax. It is a Democrat Scam that is going nowhere but, future Presidents should in no way be compromised. What has happened to me should never happen to another President!

— Donald J. Trump (@realDonaldTrump) November 26, 2019

The idea that either Trump or his Administration would “love” to have McGhan and other official testify is belied by the extent to which they have engaged in in a near-universal strategy of obstructing Congressional witnesses and documents requests since the Democrats took over Congress. This isn’t the way that an Administration supposedly committed to transparency acts, it is the way that an Administration that wants to prevent the truth from coming out acts. Nonetheless, the Administration is raising legitimate legal arguments, although that is in large part because no Administration before this one has been so obstructionist when it comes to cooperating with Congress in its oversight role.

Getting back to the Court’s ruling what Judge Jackson, an Obama appointee who has been on the bench since 2013, has basically ruled is that the President quite simply does not have he authority to completely block White House officials being required to appear before Congress:

Fights over congressional subpoenas normally are settled through compromises between branches of government, to avoid the risk that either side suffers a definitive constitutional defeat.

That is what occurred in 2008, when the White House and Congress reached an accommodation to avert a binding appeals court ruling after U.S. District Judge John D. Bates rejected President George W. Bush’s bid to block testimony by his former counsel Harriet E. Miers to the House Judiciary Committee on the controversial firings of U.S. attorneys.

The Bush administration’s claim of “absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” wrote Bates, a Bush appointee, former presiding judge of the Foreign Intelligence Surveillance Court and deputy independent counsel in the Whitewater probe of President Bill Clinton. The parties eventually agreed on questioning behind closed doors and release of a public transcript, mooting the case.

But the Justice Department’s Office of Legal Counsel has argued that Bates’s decision was mistaken.

Jackson, an Obama nominee, quoted Bates’s decision heavily, calling the administration’s immunity claim “a fiction” maintained “through force of sheer repetition,” one that has never gone through the “crucible of litigation.”

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson said. The assertion that a president can overrule current or former aides’ “own will to testify,” she added, “is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.”

Jackson did not limit her ruling to impeachment proceedings but wrote, “It is hard to imagine a more significant wound than such alleged interference with Congress’ ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States.

In order to understand the Court’s decision here, it is important to understand exactly what the issue before the Court was. McGahn was called in connection with the release of the report from former Special Counsel Robert Mueller and the underlying Russia investigation. In connection with that investigation, Mr. McGhan, the former White House Counsel, spent an extensive period of time cooperating with Mueller and his investigators. It was based on that cooperation that the House Judiciary Committee subpoenaed McGhan, who has since stepped down as White House Counsel, to testify regarding his knowledge regarding the investigation generally as well as specific issues such as the President’s efforts to undermine that investigation by taking actions such as threatening to file Muller and/or former Deputy Attorney General Rod Rosenstein, who had appointed Mueller to lead the Russia investigation.

In response to that subpoena, the White House sought to block McGhan from appearing before the committee by asserting an argument that White House officials had what amounted to absolute immunity that blocked Congress from even bringing them before a committee. This same argument has been used to block other potential witnesses from appearing, including people who may have knowledge related to the Ukraine scandal that is at the heart of the impeachment inquiry against the President. The disputes over those witnesses are currently the subject of other lawsuits currently pending in the same District Court as the McGhan case, although not before the same Judge.

In her ruling, Judge Jackson rejected the Administration’s position finding, correctly I believe, that there is nothing in either the Constitution or Federal law that allows the White House to effectively ignore Congressional subpoenas regardless of the context or reason for those subpoenas. This doesn’t mean that the witnesses can be compelled to answer every question put before them, of course, because doctrines such as Executive Privilege do apply to at least some issues that could be relevant to specific questions. That privilege, though, can only be asserted on a question-by-question basis and cannot be used to block Congress from hearing from the witness at all or compelling them to answer questions not covered by any applicable privilege.

Judge Jackson’s opinion is a lengthy one at over 100 pages and I admittedly have not read the entire opinion, but it seems fairly clear that she’s largely correct in her rejection of the absolutist argument that the Trump Administration was making in this case. While it may be true that there are some internal White House matters that can be kept outside the scope of a Congressional inquiry, as well as classified information that can only be disclosed behind closed doors, the idea that the President can block witnesses from being called to testify, This interpretation of the law is contrary to the letter and spirit of the Constitution, as well as the principle of Separation of Powers that leaves to Congress the authority to investigate and oversee the operation of the Executive Branch as well as to conduct inquiries in the face of what seem to be clear examples of Presidential wrongdoing, which clearly applies in the case of the Russia investigation and the ongoing impeachment investigation,

As already noted, the Administration has made clear that it intends to appeal this matter to the Court of Appeals for the D.C. Circuit and it will no doubt request a stay of Judge Jackson’s ruling pending that appeal. That stay will most likely be granted at the Court of Appeals considers the appeal. This means that we likely won’t be seeing McGhan before Congress any time soon. That being said, this ruling could have an impact on the other cases I noted above, as well as the questions surrounding whether or not officials such as former National Security Adviser John Bolton can be compelled to appear before Congress in connection with the ongoing impeachment proceedings. While Judge Jackson’s ruling is not binding on any of her fellow District Court Judges it will no doubt be cited as persuasive authority by Congress in those other proceedings. All of that lies in the future, though, For now, you can list this as yet another court loss for the Trump Administration.

Here’s the opinion:

Judiciary Committee v. McGa… by Doug Mataconis on Scribd