WASHINGTON -- Former White House counsel Donald McGahn must comply with a House subpoena, a federal court ruled Monday, finding that top presidential advisers cannot ignore congressional demands for information and raising the possibility that McGahn will be forced to testify as part of the impeachment inquiry.
In a 118-page decision, U.S. District Judge Ketanji Brown Jackson of Washington, D.C., found no basis for a White House claim that the former counsel is "absolutely immune from compelled congressional testimony," likely setting the stage for a separation-of-powers confrontation between the government's executive and legislative branches.
The House Judiciary Committee went to court in August to enforce its subpoena for McGahn, whom lawmakers consider the "most important" witness in whether President Donald Trump obstructed justice in former special counsel Robert Mueller's investigation of Russian interference in the 2016 U.S. election.
Trump blocked McGahn's appearance, saying the attorney had cooperated with Mueller's investigation, was a key presidential adviser and could not be forced to answer questions or turn over documents. Jackson disagreed, ruling that if McGahn wants to refuse to testify, such as by invoking executive privilege, he must do so in person and question by question.
Rep. Jerrold Nadler, D-N.Y., the Judiciary Committee chairman, said he hoped McGahn would "promptly appear before the committee."
The Justice Department's claim to "unreviewable absolute testimonial immunity," Jackson wrote, "is baseless, and as such, cannot be sustained."
She continued, "However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires," Jackson wrote. "Fifty years of say so within the Executive branch does not change that fundamental truth."
The House lawsuit against McGahn was the first filed by Democrats to force a witness to testify since they retook control last year. The Justice Department, which is representing McGahn, is expected to appeal Jackson's ruling.
Jackson's decision had been highly anticipated, with major implications for other high-value witnesses in the Democrats' ongoing impeachment investigation, including former national security adviser John Bolton and Bolton's deputy Charles Kupperman.
Since the House lawsuit began, a complaint this summer by an intelligence community whistleblower triggered a formal congressional impeachment inquiry into Trump's request that Ukraine investigate former Vice President Joe Biden -- a potential 2020 political rival -- and his son Hunter Biden.
The House Intelligence Committee recently held public hearings as part of the inquiry, centered on a July 25 call from Trump in which he asked Ukraine's leader to investigate Biden and his son.
Democrats are debating whether articles of impeachment should include obstruction-of-justice allegations outlined by Mueller, and McGahn could be a crucial witness.
"Given that the House's impeachment inquiry is proceeding rapidly, the Committee has a finite window of time to effectively obtain and consider McGahn's testimony," House general counsel Douglas Letter wrote last week in asking the judge to move quickly.
"The Judiciary Committee anticipates holding hearings after [the] public hearings have concluded and would aim to obtain Mr. McGahn's testimony at that time," Letter wrote.
The House Judiciary Committee is continuing to investigate obstruction-of-justice allegations detailed in Mueller's 448-page report, which mentioned McGahn's statements more than 160 times.
For instance, on June 17, 2017, three days after The Washington Post reported that the special counsel was investigating whether the president had obstructed justice and a month after Mueller was appointed, Trump called McGahn at home twice and directed him to fire Mueller over alleged conflicts of interest, the House's lawsuit stated, citing Mueller's report.
Mueller's report ultimately concluded that it was not the special counsel's role to determine whether the president broke the law.
Trump's July call to Ukraine came one day after Mueller testified to Congress about his probe's conclusions.
William Burck, McGahn's attorney, said, "Don McGahn will comply with Judge Jackson's decision unless it is stayed pending appeal. DOJ is handling this case, so you will need to ask them whether they intend to seek a stay."
Burck has said that McGahn does not believe he witnessed any violation of law, and that the president instructed him to cooperate fully with Mueller but not to testify without agreement between the White House and the committee.
Jackson's ruling dealt a blow to the Trump administration's assertion of executive-branch power against inquiries by the legislative branch. The position was stated by current White House counsel Pat Cipollone in an Oct. 9 letter in which he said the administration will not cooperate with the House impeachment inquiry.
The ruling does not mean that McGahn will have to immediately appear before Congress under his April 22 subpoena. The Justice Department can ask the judge to put her ruling on hold, and if she declines, ask the appeals court to temporarily stay the opinion.
LETTER FROM SCHIFF
Meanwhile, Democrats on the House Intelligence Committee plan to deliver a report soon after Thanksgiving making the case for impeaching Trump, the chairman said Monday.
Rep. Adam Schiff, D-Calif., wrote in a letter to colleagues that after two months of inquiry amid consistent stonewalling by Trump, his panel has uncovered "massive amounts of evidence" pointing to misconduct and "corrupt intent" by the president.
The evidence will be detailed in a report being drafted for public release and transmittal to the House Judiciary Committee shortly after lawmakers return from their holiday break, Schiff wrote. The Judiciary Committee is expected to promptly draft and debate articles of impeachment against Trump based on its findings.
"The president has accepted or enlisted foreign nations to interfere in our upcoming elections, including the next one; this is an urgent matter that cannot wait if we are to protect the nation's security and the integrity of our elections," Schiff wrote.
Schiff did not put a precise date on the delivery of his report to the Judiciary Committee, but the rough timeline he outlined would put Democrats on track to vote on impeachment articles by the end of the year, barring unexpected complications or a collapse in support within their caucus. If they are successful, a trial to determine whether Trump will be acquitted or removed from office would follow in the Senate.
Schiff said that his committee would continue investigative work as it drafts its written report, and he said he could not rule out additional witness depositions or public hearings. The committee already conducted 17 private witness interviews and questioned a dozen of those witnesses in public in nationally televised hearings over the past two weeks.
"Even as we draft our report, we are open to the possibility that further evidence will come to light, whether in the form of witnesses who provide testimony or documents that become available," Schiff said.
He also indicated that the Intelligence Committee was compiling a "catalog [of] the instances of noncompliance with lawful subpoenas" as a part of its report so the Judiciary Committee could consider drafting an article of impeachment charging the president with obstructing Congress. Schiff noted in his letter that the Judiciary Committee approved an article along those lines in 1974 as it recommended the impeachment of Richard Nixon.
Republicans are said to be drafting their own dissenting views to accompany the report.
FINANCIAL-RECORDS RULING
Separately, the Supreme Court announced late Monday that it is shielding Trump's financial records from House Democrats for now.
The delay allows the justices to decide how to handle the House subpoena and a similar demand from the Manhattan district attorney at the same time.
The House's quest for the records is not part of the impeachment inquiry, but the court's action probably means Democrats will not have the records before an expected vote on impeachment by year's end.
The justices are giving Trump until Dec. 5 to file a full appeal of a lower court ruling calling for his accountants to turn over the records. The president's lawyers are likely to comply, and the court's decision about whether to take up the case is expected by mid-January.
The House Committee on Oversight and Reform had argued that Trump's case was too weak to earn a delay from the court. There was no noted dissent from the court's unsigned order.
The New York case centers on Manhattan District Attorney Cyrus Vance Jr.'s subpoena for Trump's tax returns from the same accounting firm, Mazars USA. Legal briefs have been filed by both sides in that case.
The justices now should be able to say at the same time whether they will take up the cases and decide them by late June.
If they opt to reject Trump's appeals, the House and Vance would be able to enforce their subpoenas immediately. Mazars has said it would comply with any legal obligation.
Information for this article was contributed by Spencer S. Hsu, Ann E. Marimow and Rosalind S. Helderman of The Washington Post; by Nicholas Fandos of The New York Times; and by Mark Sherman and Eric Tucker of The Associated Press.
A Section on 11/26/2019