Ex-White House Counsel Ordered to Testify to House Panel

Andrew Harris
Ex-White House Counsel Ordered to Testify to House Panel

(Bloomberg) -- Former White House Counsel Donald McGahn was ordered by a judge to appear before a congressional committee probing possible obstruction of justice by Donald Trump -- a ruling that could deepen the president’s political peril amid an impeachment inquiry launched by House Democrats.

Trump claims McGahn is covered by broad presidential immunity and ordered the lawyer to spurn the committee’s subpoena in May, weeks after the release of Special Counsel Robert Mueller’s report on Russian interference in the 2016 U.S. election. Lawmakers sought McGahn’s testimony to help determine whether Trump had tried to obstruct the Mueller probe.

The ruling Monday by U.S. District Judge Ketanji Brown Jackson in Washington is likely to be used by Democrats seeking to compel other administration officials who have refused to testify in various probes, including impeachment, from Secretary of State Michael Pompeo to Acting White House Chief of Staff Mick Mulvaney.

Ultimately, an appeals court may decide whether Trump -- who vowed in April that “we’re fighting all the subpoenas” from Congress -- can claim broad immunity for people who used to work for him.

McGahn and other senior presidential advisers “do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute,” Jackson, a 2013 appointee of President Barack Obama, said in her 120-page ruling.

“Compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” the judge wrote.

Bill Burck, McGahn’s attorney, said his client “will comply with Judge Jackson’s decision unless it is stayed pending appeal.”

‘Will Appeal’

The DOJ will appeal the ruling and seek an immediate stay, department spokeswoman Kerri Kupec said.

“This decision contradicts longstanding legal precedent established by administrations of both political parties,” White House spokeswoman Stephanie Grisham said. “We will appeal and are confident that the important constitutional principle advanced by the administration will be vindicated.”

But the judge said the president’s purported power to direct aides to refuse to show up and be questioned appear only in a string of opinions from the Office of Legal Counsel that don’t constitute legal precedents and are “manifestly inconsistent with the constitutional jurisprudence of the Supreme Court.”

Trump’s attorney Jay Sekulow didn’t immediately reply to a request for comment.

Lawyers for the House of Representatives have called McGahn, who left his White House post last year, “the most important witness, other than the president,” in the obstruction probe. The need for his testimony gained greater urgency with the start of the House’s separate impeachment inquiry over Trump’s actions involving Ukraine, the Judiciary Committee said in a Nov. 19 filing asking the court to expedite its ruling.

Trump lawyers argued that McGahn, as the president’s former legal adviser, was effectively his alter-ego and absolutely immune from being compelled to testify.

Animal Farm

In a footnote to her ruling, the judge compared the claim that the president himself can determine which subpoenas are honored to George Orwell’s warning about totalitarianism in “Animal Farm,” in which “all animals are equal but some animals are more equal than others.”

Jackson wrote that the DOJ’s argument that presidents have the power to restrict testimony by former aides for the rest of their lives “amply demonstrates its incompatibility with our constitutional scheme. Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings.”

“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,” Judiciary Committee Chairman Jerrold Nadler, a New York Democrat, said in a statement.

McGahn was a key figure in the White House when Trump fired James Comey as FBI director and as the president tried to dissuade then-Attorney General Jeff Sessions from recusing himself from overseeing the Mueller investigation. Mueller’s pointed refusal to clear Trump of obstruction sparked the legislators’ interest in McGahn, who provided extensive information that was cited in his report.

Adam Schiff, chairman of the House Intelligence Committee, called the ruling “a very significant victory for congressional oversight, and for the American people.”

Schiff, who heads the impeachment inquiry panel, urged others to come forward and testify.

“The witnesses who have defied Congress at the behest of the president will have to decide whether their duty is to the country or to a president who believes he is above the law,” Schiff said.

Jackson’s decision comes as another judge in Washington considers former Trump national security aide Charles Kupperman’s request for a ruling on whether he must obey a House subpoena or the president’s prohibition on testifying. A hearing in that case is set for Dec. 10 before U.S. District Judge Richard Leon.

The case is Committee on the Judiciary v. McGahn, 19-cv-2379, U.S. District Court, District of Columbia (Washington).

(Updates with Schiff’s statement)

--With assistance from Jordan Fabian.

To contact the reporter on this story: Andrew Harris in federal court in Washington at aharris16@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Steve Stroth

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