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Federal Judge Strikes Down White House Absolute Immunity

Former White House counsel Don McGahn will now have to say nothing in person.

House Judiciary Committee Democrats won a court battle on Nov. 25 when a federal judge ruled that the Trump administration could not prevent senior White House officials from testifying before Congress. The ruling requires former White House counsel Don McGahn to submit to a subpoena issued by the committee in April. The order does not impact any traditional privilege claim.

Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia made two key decisions to justify her ruling. The first is that the federal courts are an appropriate arbiter of this dispute. The second is that the broad immunity grant asserted by the White House is not valid. The second claim is more novel and politically charged, so let’s begin with that.

Don’t Believe the Hype

Trump lost the motion but not any privilege. That is to say, with McGahn, he still enjoys both executive privilege and attorney-client privilege. What Trump lost was simply the power to tell Congress to tear up its subpoenas and go pound sand. Now, McGahn will have to show up in person to tell committee members to go pound sand. Judge Jackson, an Obama appointee, said:

“Donald F. McGahn II is not immune from compelled congressional process, and that he had no lawful basis for refusing to appear for testimony pursuant to the duly issued subpoena issued to him by the Committee on the Judiciary of the United States House of Representatives.”

Anyone who thinks McGahn will now spill Trump secrets to the committee is sorely mistaken. While it is certainly possible his testimony could yield more trouble for Trump, it’s not too hard for a lawyer to talk a lot and say nothing, and I expect McGahn to be a maestro at same by the time he is sworn in. I’m sure it will make for good theater, however, and a fundraising opportunity for Democrats and progressives as well.

Asserting Judicial Power

Judge Brown’s other ruling is that a federal court is the right place to settle the dispute, asserting its role. She wrote:

“[F]ederal courts have subject-matter jurisdiction to resolve legal disputes that arise between the Legislature and the Executive branch concerning the scope of each branch’s subpoena-related rights and duties.”

The Justice Department said it will appeal the ruling, which came in the form of a grant of summary judgment for the Committee Democrats and a denial of same for the administration.

Judge Brown’s Ruling

Court File by Mark angel on Scribd

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Read more from Scott D. Cosenza.

Read More From Scott D. Cosenza, Esq.

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