Trump impeachment: Judge's ruling may mean John Bolton and Mick Mulvaney have to testify Chairman Adam Schiff recently announced that the House Intelligence Committee would wrap up impeachment proceedings. He might want to rethink that now.

Chris Truax | Opinion contributor

Show Caption Hide Caption Why a president can be impeached and remain in office Impeaching a U.S. president might not be the be-all-end-all for their career. We explain why this is the case.

A ruling in Don McGahn’s lawsuit could not have come at a worse time for the Trump administration.

Back in April, McGahn, a former White House counsel who resigned in October of 2018, was issued a subpoena by the House Judiciary Committee who wanted him to testify about President Donald Trump’s efforts to get him to fire Special Counsel Robert Mueller. President Trump, claiming an absolute privilege to prevent his current and former subordinates from testifying, ordered McGahn to ignore the subpoena. McGahn, finding himself in a constitutional no-man’s land between an executive branch claim of privilege and a legislative branch subpoena, opted to let the courts sort out the competing claims.

McGahn has a duty to comply

On Monday, a federal district court did just that, categorically rejecting President Trump’s claims and finding that McGahn had a duty to comply with the Judiciary committee’s subpoena and to appear before Congress to testify. “[T]he President does not have (and, thus, cannot lawfully assert) the power to prevent his current and former senior-level aides from responding to congressional subpoenas.”

The court observed that the duty to appear and offer testimony was completely separate from whether a witness could use an appropriate assertion of executive privilege — or some other privilege — to avoid answering a particular question. “White House aides can withhold the kinds of confidential and privileged information that distinguishes them from everybody else; they can do so by asserting an appropriate privilege if needed, when legislators ask questions that probe too deeply."

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Now it gets interesting. There is no wiggle-room in Judge Jackson’s decision. On the question of an administration official’s duty to comply with a subpoena, it is as clear as it is possible to be. This is immensely consequential for John Bolton, Rudy Giuliani, Mick Mulvaney and a host of others. While this case will almost certainly be appealed, there is no certainty that either Judge Jackson or the Court of Appeals will issue a stay of the order requiring McGahn to testify. In fact, there are good reasons why a court wouldn’t do so in this case. McGahn has already said he will respect Judge Jackson’s order and appear to testify if a stay isn’t issued.

To make matters worse — or better — Judge Jackson’s discussion of executive privilege is in the context of a normal “legislative” subpoena. That’s because this case began on August 7th, long before the House opened a formal impeachment proceeding.

While this has never been directly tested by a court, most legal scholars agree that there is no such thing as “executive privilege” in the context of an impeachment proceeding. When the House is investigating what it believes is impeachable conduct, the president cannot simply refuse to provide information that it doesn’t want Congress to have. For obvious reasons, it can’t be left up to the target of an investigation to decide what information the investigators are allowed to see. As Judge Jackson observed, “[T]he primary takeaway from the past 250 years of recorded American history is that presidents are not kings.” Indeed they are not. They are subject to the laws and to congressional oversight just like everybody else.

No lazy executive privilege

In other words, not only are all of the president’s aides legally required to testify before Congress, since this is now an impeachment inquiry, they will not be able to refuse to answer questions based on “executive privilege.” They most certainly will not be allowed to refuse to answer questions based on the “lazy” version that has become so popular over the last few years even without an express claim of privilege by the White House. “I can’t disclose my personal conversations with the president.” It’s those personal conversations that are now at the very heart of the impeachment inquiry.

So Judge Jackson’s opinion opens up whole new vistas of inquiry from what were previously unobtainable witnesses. No doubt many of them will refuse to testify no matter what. But some of them, like Don McGahn himself, may well decide to come in from the cold. Chairman Adam Schiff recently announced that the House Intelligence Committee would be wrapping up its part of the proceedings shortly after returning from the Thanksgiving recess. He might want to rethink that now.

Chris Truax, an appellate lawyer in San Diego, is an adviser to Republicans for the Rule of Law and a member of USA TODAY's Board of Contributors.