SALT LAKE CITY — A federal judge ruled Monday that top executive branch officials cannot ignore congressional requests for information, even on the president’s orders. The decision in the case of former White House counsel Donald McGahn could have implications for others who have balked at House subpoenas in the impeachment inquiry, legal experts say.
In a 118-page decision, U.S. District Judge Ketanji Brown Jackson of Washington, D.C., found that executive branch officials “are not absolutely immune” from complying with a congressional subpoena “no matter how many times the executive branch” has said so over the years.
“That is to say, 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 complying with a valid congressional subpoena, Jackson wrote.
The administration will appeal Jackson’s ruling and seek to put it on hold, Justice Department spokesman Kerri Kupec said. William Burck, an attorney for McGahn, said the former White House counsel will comply with the subpoena, absent a court-imposed stay, the Associated Press reported.
Rep. Jerrold Nadler, D-N.Y., chairman of the Judiciary Committee, which had subpoenaed McGahn, said he hoped the former White House attorney would “promptly appear before the committee.”
The appeal to the D.C. Circuit Court could set the stage for a historic separation-of-powers confrontation before the Supreme Court between the government’s executive and legislative branches, but it’s unlikely the case would move quickly enough to have a significant near-term impact on the House’s impeachment inquiry.
“It seems likely that this would not be resolved until spring,” said Frederick Gedicks, a law professor at Brigham Young University. “Given that the Democrats are on a fast track to impeachment, it’s hard to see how this this is really going to affect the impeachment proceedings.”
But the impact of Jackson’s finding could land before any appeal is decided. Legal experts have speculated the ruling could allow other administration officials — such as former national security adviser John Bolton — to justify testifying in defiance of White House orders to the contrary.
“It could be a warm embrace for those who want to testify but need a reason to do,” Jessica Levinson, a law professor at Loyola Law School in Los Angeles, told Reuters. “It would give political cover to those who want to come forward.”
Bolton’s lawyer has said his client would testify if a judge ruled that Congress has the authority to make him appear.
Several potentially key witnesses — like Bolton, acting White House chief of staff Mick Mulvaney, Energy Secretary Rick Perry and Secretary of State Mike Pompeo, among others — have declined to provide testimony or documents.
Democrats have said they don’t want to let the impeachment inquiry get tied up in lengthy court battles to force those witnesses to cooperate with subpoenas. But they could still hear testimony if one of them changed their mind, or if other key witnesses emerged.
“The investigation isn’t going to end,” House Intelligence Committee Chairman Adam Schiff said Sunday.
Jackson wrote that although her ruling requires McGahn to testify, the president could still assert executive privilege to prevent him from answering certain questions. And Gedicks said resolving those differences could lead to additional litigation, delaying McGahn’s role in the inquiry even further.
The Democratic-controlled House began investigating the White House for obstruction of justice last spring based on allegations detailed in the special counsel report by Robert S. Mueller III into Russian meddling in the 2016 election. McGahn was a key witness for Mueller, describing how Trump pressured him to get Mueller removed as special counsel and to dispute news stories about what he had told Mueller. McGahn refused, threatening to resign.
The House Judiciary Committee subpoenaed McGahn in April and when he would not comply the committee sued him in August.
But the case was overshadowed in September when the House Intelligence Committee started investigating whether Trump abused his power in interactions with Ukraine, kicking impeachment proceedings into high gear. It is alleged that the president pressured Ukrainian officials to carry out investigations that would benefit him politically.
The Intelligence Committee has concluded two weeks of public hearings and its staff is preparing to submit the panel’s findings early next month to the Judiciary Committee, which is expected to open its own hearings to consider articles of impeachment.
McGahn’s case could be pivotal for the House as it considers impeaching the president on multiple counts.
The articles of impeachment are expected to focus on Ukraine because that story has been the easiest to tell to the American public, Democratic leaders have said. But Democrats are also considering an overall “abuse of power” article against Trump, which could be broken into categories like bribery or extortion, the Associated Press reported. Additional articles of impeachment could include obstruction of Congress and obstruction of justice. The latter could incorporate evidence from Mueller’s report.