U.S. District Judge Ketanji Brown Jackson on Monday eviscerated the Trump administration’s lawless intransigence in a ruling that was as sharp as it should have been predictable. No, former White House counsel Donald McGahn is not “absolutely immune from compelled congressional testimony.”
No, President Donald Trump cannot prevent McGahn from responding to legal congressional subpoenas. “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.
Previous presidents and congressional leaders have found ways to defuse disputes. George Washington and Ronald Reagan turned over documents to congressional investigators. During Barack Obama’s presidency, Congress held then-Attorney General Eric Holder Jr. in contempt when he failed to respond to a congressional subpoena in the overhyped investigation of the “Fast and Furious” gunrunning scheme, but the two sides eventually worked out a compromise preventing lengthy litigation.
President George W. Bush asserted broad “absolute” authorities to ignore Congress until a federal district judge rejected them and, again, the two sides struck a deal that mooted the case. Compromises have been found before courts could anoint victors with finality, preserving the possibility for healthy give-and-take between the branches.
Trump has evinced no interest in compromise. In a pugnacious Oct. 8 letter, White House counsel Pat Cipollone declared a policy of total noncooperation with the House impeachment inquiry, essentially arguing that the president gets to decide when congressional proceedings are legitimate and, therefore, when to respect — and when to ignore — Congress’ legal orders. In the McGahn case, the Trump Justice Department appears determined to appeal Judge Jackson’s ruling to the U.S. Court of Appeals for the District of Columbia Circuit.
It should find no solace there. Though past presidents have at times claimed “absolute” authorities and immunities relative to Congress or the judiciary, there is scant case law evaluating such sweeping assertions — and little in the American constitutional tradition suggesting that the executive is an unaccountable branch of government. Rather than appeal, the administration should respect American tradition and comply with valid congressional subpoenas.
FROM AN EDITORIAL IN THE WASHINGTON POST