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U.S. District Judge Ketanji Brown Jackson recently 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 investigation of the "Fast and Furious" gun-running scheme, but the two sides eventually worked out a compromise that prevented 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.

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 comply with congressional subpoenas.

Meanwhile, potential witnesses with knowledge relevant to the House Intelligence Committee investigation on Ukraine, whether subpoenaed or not, should testify, among them acting White House chief of staff Mick Mulvaney, Secretary of State Mike Pompeo and former national security adviser John Bolton. They likely could clarify precisely why Trump suddenly halted military aid to Ukraine and what the president was demanding in exchange for its resumption.

Editorial on 11/30/2019

Print Headline: Others say: Not above the law


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