‘Presidents are not kings’: Judge says ex-White House counsel Donald McGahn must testify before Congress

Show Caption Hide Caption GOP at Don McGahn hearing: Dems want fight, not facts The ranking Republican on the House Judiciary Committee accused Democrats of theatrics when they held another hearing with an empty witness chair, this time for former White House Counsel Don McGahn who refused to appear before the committee. (May 21)

WASHINGTON — Former White House counsel Donald McGahn, a key figure with firsthand knowledge of President Donald Trump's alleged efforts to short-circuit the Mueller investigation, must testify before Congress, a federal judge ruled Monday.

The ruling, which the Justice Department said it will appeal, affirms Congress' role as a check on executive power. If upheld, it could open the door for testimony by some of the president's closest aides, including former national security adviser John Bolton and acting White House Chief of Staff Mick Mulvaney.

U.S. District Judge Ketanji Brown Jackson rejected the White House's claims of absolute immunity, saying the president "does not have the power" to prevent his aides from responding to congressional subpoenas.

"Today, this Court adds that this conclusion is inescapable precisely because 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," Jackson wrote in a lengthy ruling issued late Monday.

"Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings," Jackson wrote. "This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."

McGahn, however, can invoke executive privilege "where appropriate," Jackson said, citing a previous court ruling that concluded former President George W. Bush's White House counsel must testify before Congress. The judge added it is "widely accepted" that the president can assert executive privilege to protect potentially sensitive topics.

The Justice Department on Tuesday asked for the ruling to be postponed until the case is ultimately decided. The department continued to argue "that Mr. McGahn is absolutely immune from compelled congressional testimony," and that there is a "significant chance" the appeals court will agree.

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The decision comes in the middle of an impeachment inquiry into whether Trump used the presidency to force another country to investigate a potential rival in 2020. Rep. Jerry Nadler, D-N.Y., chairman of the committee that's seeking McGahn's testimony, said the decision confirmed that claims of absolute immunity have no basis in law.

"Don McGahn is a central witness to allegations that President Trump obstructed Special Counsel Mueller's investigation," Nadler, of the House Judiciary Committee, said in a written statement. "Now that the court has ruled, I expect him to follow his legal obligations and promptly appear before the Committee."

Rep. Adam Schiff, D-Calif., chairman of the House Intelligence Committee that's heading the impeachment probe, said the ruling should encourage more recalcitrant administration witnesses to come forward.

"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 that he is above the law," Schiff said in a written statement.

Witnesses have testified in the impeachment inquiry that the White House dangled a state visit and withheld military aid to pressure Ukrainian President Volodymyr Zelensky to announce an investigation into the family of former vice president and 2020 presidential contender Joe Biden.

As Democratic lawmakers investigate Trump and his administration, McGahn and other current and former White House officials have found themselves in the middle of legal battles that could redefine the powers of Congress and the presidency.

Bolton and Mulvaney could be important witnesses in the impeachment probe.

State Department diplomats have testified about Bolton's opposition to the Trump administration's campaign for Ukraine to announce investigations. Bolton called Trump's personal attorney, Rudy Giuliani, who is at the center of these efforts, a "hand grenade," according to testimony from Fiona Hill, a former National Security Council senior director for Europe and Russia.

The House Intelligence Committee has not subpoenaed Bolton, who has hinted he will not stay quiet.

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Last month, his former aide, Charles Kupperman, defied a congressional subpoena to testify and asked the court to decide whether he should comply with it. The committee later withdrew its subpoena and asked a federal judge to dismiss Kupperman's lawsuit.

Charles Cooper, Kupperman's lawyer, said his case remains different from McGahn's because he discussed national security and foreign affairs with the president.

"Accordingly, Dr. Kupperman will continue to pursue his lawsuit seeking an authoritative and binding judicial ruling resolving the question whether he is constitutionally obliged to obey the House’s demand that he testify or the president’s conflicting demand that he decline to do so," Cooper said in a statement.

Democrats also want to hear from Mulvaney, but he too has defied a congressional subpoena. Mulvaney was a key figure in the White House's efforts to justify Trump's decision to withhold aid to Ukraine, The Washington Post and The New York Times reported.

Mulvaney was going to join Kupperman's lawsuit but said he would instead file his own — only to ultimately drop that plan, too.

Democrats' efforts to get McGahn to testify predate the Ukraine controversy. They want him to testify about episodes of potential obstruction of justice detailed in Special Counsel Robert Mueller's report.

These episodes included Trump's efforts to fire Mueller as he investigated Russia's interference in the 2016 election and its possible ties to the Trump campaign.

In June 2017, Trump called McGahn at home and told him Mueller should be removed because he had conflicts of interest, according to the Mueller report.

McGahn decided he would rather resign than carry out that order. He feared a repeat of the "Saturday Night Massacre," which happened when top Justice Department officials resigned rather than carry out former President Richard Nixon's order to fire the Watergate prosecutor.

Trump met with McGahn in the Oval Office and pressured him again, according to the Mueller report. McGahn refused.

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McGahn later told Trump's then-chief of staff, Reince Priebus, that the president had asked him to "do crazy s---," according to the report.

After news broke in early 2018 about Trump's efforts to have Mueller fired, the president told White House staffers to tell McGahn to dispute the story and create a record stating he had not been ordered to remove Mueller, according to the report.

McGahn, again, refused. He later told Mueller's investigators that the news stories were accurate.

He resigned in October 2018.

In May, McGahn defied a subpoena from the House Judiciary Committee for his documents and testimony.

White House lawyers have argued that the House can't compel McGahn's testimony because his communications as a top aide to the president are protected by executive privilege.

Democrats sued to force McGahn to testify. They called him "the most important witness," other than Trump himself, to the events the committee is investigating.

The House Judiciary Committee won in another court battle last month when a federal judge granted access to grand jury evidence behind Mueller's report.

Another case involving executive power may go to the Supreme Court.

The House Oversight and Reform Committee wants to review several years of Trump's tax returns and financial records. Judges at the district and appellate levels ruled in favor of the House. Trump's attorneys then asked the Supreme Court to intervene.

The Supreme Court on Monday temporarily blocked disclosure of the documents as attorneys for the parties prepare written arguments on whether the high court should hear the case.

Contributing: Richard Wolf and Kevin McCoy