Takeaways from busy day in courts on impeachment inquiry
Two major court actions in Washington, DC, Monday evening added fuel to the fire for the House Democrats’ impeachment inquiry and the ongoing fight over the White House’s attempt to shield President Donald Trump’s advisers and financial documents from going public.
A federal judge said that former White House counsel Don McGahn must testify before Congress — a major victory for House Democrats and their investigations into Trump.
Minutes later, the Supreme Court blocked Democrats from obtaining the President’s financial records for now.
Here are the key takeaways from a busy day in the courts:
Bad news for anyone in the White House who doesn’t want to talk
McGahn is a former official claiming the White House could still stop him from speaking to Congress. But US District Judge Ketanji Brown Jackson makes clear in her opinion Monday that even current White House officials shouldn’t be blocked when Congress calls.
If more judges agree with her (and McGahn is planning to appeal as well), White House officials like chief of staff Mick Mulvaney could eventually be forced to testify.
Much of the strength of Jackson’s lengthy opinion relies on past decisions from another trial-level judge and the Supreme Court regarding congressional subpoenas and the reaches of executive immunity.
Jackson reiterates a George W. Bush-era court decision that led then-White House counsel Harriet Miers and Karl Rove agreeing to give House testimony about the President firing US attorneys.
“As a matter of law, senior-level current and former presidential aides, including White House counsels, must appear before Congress if compelled by legislative process to do so,” Jackson wrote Monday.
Bolton’s former deputy Charles Kupperman has a parallel court fight now, where he’s asked a judge to decide if the White House’s immunity is stronger than the House subpoena.
Congress now has backup if it wants to impeach on obstruction
Democrats are considering impeaching Trump for obstructing Congress for blocking its subpoenas. Now they have 120 pages written by a federal judge to back that up.
Jackson’s words couldn’t be clearer — or more helpful to the House at this stage.
First, Jackson tears apart the White House’s reasoning that judges shouldn’t rule on cases like these and that former officials like McGahn can’t be blocked. She can rule, and McGahn must show up if subpoenaed, she finds.
Jackson then turns her ire to the Justice Department’s legal reasoning that administration officials are immune from congressional subpoenas.
“Unfortunately for DOJ, its mere recantation of these aspirational assertions does not make the proposition any more persuasive,” Jackson writes, refuting policy set by the Office of Legal Counsel.
“Because there are few, if any, well-formulated justifications for categorically excusing current and former senior-level presidential aides from responding to compelled congressional process, it would be difficult to do so consistent with existing case law, traditional norms of practice under our constitutional system of government, and common sense,” she added.
In short, the executive branch’s legal reasoning is debunked, Jackson concluded.
Democrats could be emboldened to subpoena Trump
Jackson’s ruling is so broad and so fierce that it at times seems to encourage Democrats to call Trump himself to testify. At least twice in her written reasoning, Jackson notes that the courts would find a President himself isn’t immune from congressional testimony.
She cites the ruling on Miers and Supreme Court reasoning that a President wouldn’t be “entitled” to immunity in civil or criminal matters. She returns to the idea in a footnote, bringing up court fights over subpoenas that both Presidents Bill Clinton and Richard Nixon lost.
“Where the law has not provided absolute immunity for Presidents who are facing significant civil damages lawsuits or who have criminal exposure, it seems unlikely that a President would be declared absolutely immune from compelled congressional process,” Jackson writes.
It’s also a tacit reminder that special counsel Robert Mueller never subpoenaed Trump for live testimony in the Russia probe — leaving decisions on whether he should be held accountable for obstruction of justice to Congress.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote.
Supreme Court puts itself between Trump and Democrats on documents
The Supreme Court’s action on Monday marked its first move into a major separation of powers battle against the backdrop of the impeachment inquiry.
In a brief order, the court prevented the House of Representatives from obtaining Trump’s financial records for the moment.
By doing so, the court became the first court to block a subpoena for Trump financial documents, which lower court judges had ruled valid under House rules and the US Constitution.
The nine justices now sit smack between the President and House Democrats in the struggle over the documents held by Trump’s longtime accountant Mazars USA. The House has argued that it needs the financial records to get to the bottom of Trump assertions about his finances as it considers amending federal ethics laws.
Resolving the financial documents case could take months
Now that the justices have intervened, any resolution could take months. The only date the court’s order set was a December 5 deadline for a petition from Trump’s lawyers. House lawyers would likely respond soon after and urge the justices to let the lower court ruling stand.
But the justices did not signal when they would announce whether they would accept the petition and schedule oral arguments, or alternatively, reject the petition.
Only if the justices outright deny the Trump appeal would the House be able to enforce its subpoena for the documents. If the justices grant Trump’s petition and agree to hold arguments, a briefing schedule would take weeks. The eventual ruling might not come until June when the justices traditionally recess their annual session. Irrespective of how they decide the dispute, the House’s effort that began with an April 2019 subpoena would have stretched beyond a year.
But impeachment is moving full speed ahead
The House Intelligence Committee is preparing a report to summarize its impeachment inquiry case related to Trump and Ukraine, which House Intelligence Chairman Adam Schiff said would be sent to the Judiciary Committee soon after Thanksgiving.
The federal court ruling that McGahn must testify is intriguing for Democrats, particularly those who want the House to include the episodes obstruction of justice detailed by Mueller in the articles of impeachment.
McGahn was a key witness for Mueller, and his testimony could bolster that case for the House.
But the Justice Department already said Monday it was appealing the case, meaning it will be tied up for weeks, if not months longer. And Schiff said the impeachment inquiry not stall while waiting for the courts.
“While we will continue with our investigative work and do not foreclose the possibility of further depositions or hearings, we will not allow the President or others to drag this out for months on end in the courts,” Schiff said.
Schiff’s comments are another reminder that the political calendar is a very different animal than the judicial one. Democrats held seven public impeachment hearings with 12 witnesses — including multiple hearings in a day — in order to get the testimony on the record they needed to draft articles of impeachment — and put them on the floor for a vote before Christmas.
That will give the Senate the chance to hold a trial before the political world shifts all its attention to the presidential election next year.