Then-White House Counsel Don McGahn listens before the Senate Judiciary Committee, September 27, 2018. (Win McNamee/Pool via Reuters)Contrary to popular belief, the former White House counsel has been ordered to show up, not to testify — and even that is being appealed.
You might assume that the girth of the nearly 120-page opinion Judge Ketjani Brown Jackson issued Monday means that an issue of great consequence to the House impeachment inquiry has been decided. But you’d be wrong. And you’d be further misled if you put much stock in the headlines breathlessly announcing that the federal district court in Washington, D.C., has ordered that former White House counsel Don McGahn “must testify to Congress.”
What Judge Jackson actually ordered is that McGahn must show up in compliance with the House Judiciary Committee’s subpoena. She did not direct him to provide any actual testimony. That is, the ruling sidesteps the question that actually matters: To what extent may McGahn invoke executive privilege (in addition to other potential privileges) to avoid answering lawmakers’ questions?
The ruling is nevertheless being appealed.
The case involves the Mueller Report’s obstruction volume. Yes, I know it seems like two or three impeachment gambits ago, but House Democrats still want to impeach President Trump over several incidents that the special counsel described as possible obstruction but did not recommend indictment for (and that Attorney General Bill Barr and then-deputy AG Rod Rosenstein concluded did not establish obstruction). McGahn was a central witness on this part of the investigation. He was interviewed extensively by Mueller’s team and provided memoranda of his interactions with Trump. The White House has always taken the position that making McGahn available to a prosecutor (i.e., an intra-executive-branch exchange) did not waive any privilege claims the president may have if Congress seeks information from McGahn (i.e., an inter-branch demand).
As we have noted many times, Congress does not need a criminal offense for impeachment. Theoretically, if a majority of the House were to conclude that the allegedly obstructive behavior was an abuse of power, the House could cite it as an impeachable offense, even if it did not amount to a prosecutable crime.
The Judiciary Committee, chaired by Jerry Nadler (D., N.Y.), wants McGahn to testify. When the committee, McGahn’s counsel, and the White House could not agree to terms for McGahn’s appearance and the production of related documents, the committee issued a subpoena. The president directed his former White House counsel not to honor the subpoena. The Justice Department argues that McGahn has absolute immunity from congressional subpoenas seeking testimony about his time as a senior adviser to the president.
Judge Jackson’s rambling, repetitive opinion rejects this claim. While she scores some points, she is also by turns gratuitously snarky, transparently political, and occasionally incoherent. (An example of the latter: 102 pages in, after providing a list of policy arguments the Justice Department presses in support of its claim, Jackson snipes, “unfortunately for DOJ, its mere recantation of these aspirational assertions does not make the proposition any more persuasive.” But DOJ has not recanted anything — Jackson apparently meant to say incantation.)
The court takes umbrage at the Trump administration’s position that disputes between the political branches are not fit for judicial resolution. The Justice Department argues that the Constitution vests Congress with its own powers to compel executive compliance with its information demands, such as the power of the purse (which could enable lawmakers to starve the administration of the funds needed to govern). And, as the ongoing controversy elucidates, Congress also has the power to impeach and remove a president who impedes its investigation. Indeed, just a week ago, Intelligence Committee chairman Adam Schiff indicated that House Democrats plan to do exactly that, in lieu of litigating the validity of privilege assertions by senior administration officials past and present.
By the Justice Department’s lights, these dispositive powers vested in Congress show that the Framers did not intend the Article I branch’s inevitable disputes with the Article II branch to be resolved by lawsuits before the Article III branch. Rather, these are non-justiciable disputes to be worked out by negotiations between the political branches, a fact DOJ says is best illustrated by the absence of such lawsuits in the first 200 years after the Founding.
Judge Jackson regards this as a “radical” claim. She counters that the dearth of litigation in the first centuries of the Republic owes to the fact that Congress’s investigative powers, while not as frequently resorted to as they are nowadays, could not credibly be resisted, such that normal presidents have made concessions without court intervention. Yet, the judge grudgingly concedes that congressional subpoenas to presidential advisers have also been ignored historically; and it is at least equally plausible that such subpoenas were infrequent because Congress recognized the patent separation-of-powers concerns to which modern progressives are indifferent (at least when a Republican inhabits the White House). On that score, how interesting that Judge Jackson, appointed to the bench by President Obama, seems to have missed the art form to which the Obama administration raised stonewalling. In the Fast & Furious gun-walking scandal, for example, Obama’s Justice Department asked the district court to throw out a House committee’s suit demanding the production of documents, reasoning — where have we heard this before? — that the political branches should be left to work out their disputes without court intervention. On Benghazi, the Obama administration rebuffed congressional investigators citing . . . wait for it . . . separation-of-powers concerns and the principle that senior executive officials should be shielded from congressional information demands.
In lambasting Trump’s similar arguments, Jackson relies heavily on the decision handed down over a decade ago by her fellow D.C. district judge John D. Bates in the Miers case. It arose out of President Bush’s direction that Harriet Miers and Joshua Bolton, respectively, his White House counsel and chief-of-staff, decline to testify before the House Judiciary Committee in the controversy over the firing of several U.S. attorneys. Judge Bates ruled that the president’s directive was invalid. Though it is a lower-court ruling, Miers is the only case that squarely addresses an executive claim of absolute immunity from testifying; the decision was never tested on appeal because the political branches worked out an accommodation.
Jackson rejects DOJ’s contention that Miers was wrongly decided. The court is especially put off by the Justice Department’s claim that more stock should be placed in a series of Justice Department Office of Legal Counsel opinions than the precedent of her own court — particularly given that (a) the judge finds the OLC opinions devoid of precedential support and (b) substituting the executive branch’s analysis for the court’s own jurisprudence would, in Jackson’s view, make the president the unchecked master of his own privileges. This is the leitmotif of Jackson’s opinion: Trump purports to be a king.
Jackson opines that the McGahn subpoena presents purely legal questions about his obligation to comply and Congress’s remedy if he does not. Such questions of law are uniquely suited to judicial resolution and, in fact, are adjudicated all the time. Whether a court has jurisdiction, she says, is determined by the nature of the question, not the identity of the parties. Since courts for centuries have been ruling on legislative subpoenas, there is no reason why they should resist ruling just because a subpoena happens to be directed to the executive branch, rather than a private citizen.
To those fearful that this could give the courts too much power, Jackson takes pains to explain that she is not claiming judges could properly decide non-legal controversies between the political branches. Nor could they usurp decision-making authority that the Constitution commits to a different component of government (e.g., the court could not instruct the Senate on how to run an impeachment trial). But she will not accept the premise that the battle between the political branches is essentially political. She sees it as strictly legal. Invoking Justice John Marshall’s famous admonition, she declaims that it is “emphatically” the province of the judiciary to say what the law is.
Jackson is at her strongest in pointing out the Trump administration’s glaring inconsistency. In a series of lawsuits, President Trump has invoked the authority of the federal courts in seeking to deny congressional access to his tax returns. Moreover, when the House Judiciary Committee recently asked the district court to order the Justice Department to release grand-jury information from the Mueller investigation, DOJ never contested the court’s jurisdiction to adjudicate the claim; and when the court ruled in the committee’s favor, DOJ promptly appealed to the D.C. Circuit. Judge Jackson observes that, when the president perceives strategic advantage, he does not hesitate to thrust the courts into his skirmishes with Congress. Yet the court either does or does not have jurisdiction to adjudicate inter-branch controversies; jurisdiction cannot be a matter of the president’s whim, or his calculation of whether he’s likely to win.
The judge is at her weakest in echoing the Lawyer Left’s now-familiar clarion call for a standard of judicial review weighted uniquely against President Trump. Alone among all presidents, the 45th is said to be “categorically rejecting once-accepted and standard applications of Legislative and Judicial branch authority,” while embarking on “novel exercises of executive power” that appear to pose “threats to constitutional and procedural norms” of an “unprecedented nature.”
For this sky-is-falling prescription, Jackson cites three cases. The first — yet another one in which Judge Jackson has issued a 120-page ruling — deals with the administration’s effort to implement expedited removal of certain illegal aliens, and involves the propriety of district judges’ issuing nationwide injunctions. The second is one of a series in which district judges have denied the president’s authority to transfer for border-wall construction funds appropriated for other purposes. Pace Jackson, regardless of what one thinks of the policy, the president has a legal position on which reasonable minds can disagree — such that the Supreme Court has already rejected another lower court’s effort to block the funds transfer. Finally, Jackson cites a federal appeals court’s rejection of the administration’s attempt to withhold federal grant money because of Philadelphia’s sanctuary-city policies.
Even if the president is wrong in all three cases (which is far from clear), only an ideologue would regard this as a despotic shredding of the Constitution’s fabric. And if Trump is eventually determined to be wrong, it will be because he misconstrued statutes; he has not presumed to issue edicts unilaterally. Jackson, meanwhile, is notably mum on cases in which imperious district judges have been reversed for exceeding their authority in attempting to invalidate Trump policies with which they disagreed. And, again, one wonders where she was when President Obama usurped Congress’s authority by, for example, decreeing amnesties for immigration-law violators after repeatedly admitting that he had no such power. Obama, as Ilya Shapiro has observed, had a historically poor record in Supreme Court cases precisely because of his hostility to constitutional constraints on executive power. We’re to believe, though, that it is Trump who harbors regal aspirations.
For all its sound and fury, Judge Jackson’s ruling signifies precious little. Even if the higher courts concur that Don McGahn must physically appear and be sworn in as a witness, the president is surely going to direct that he refuse to answer questions on the grounds of executive and attorney–client privilege. We will be back at square one. The only thing that matters is whether McGahn will impart information. If he refuses to answer questions, it will make no difference that this refusal is conveyed in person, as opposed to by declining to appear.
As already noted, in their parallel Ukraine impeachment enterprise, Democrats vow that the stampede won’t be slowed by the inconvenience of litigating presidential privilege claims. They will just tack on an article of impeachment alleging that the president has abused his power by impeding Congress. There is no reason to believe assertions of privilege by McGahn would be treated any differently. The Justice Department is right: Congress does not need the courts; in the threat of impeachment, the House has a much stronger trump card.