A US federal judge has ordered former White House counsel Donald McGahn to appear before Congress in a setback to Donald Trump’s effort to keep his top aides from giving evidence.
The outcome could lead to renewed efforts by Democrats to compel evidence from other high-ranking officials, including former national security adviser John Bolton.
Not even the Republican president’s closest aides who receive subpoenas from Congress can “ignore or defy congressional compulsory process, by order of the President or otherwise,” Judge Ketanji Brown Jackson wrote on Monday in ruling on a lawsuit filed by the House Judiciary Committee.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings,” Judge Jackson wrote.
This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.
Mr McGahn was a star witness in special counsel Robert Mueller’s investigation, and Democrats wanted to question him about possible obstruction of justice by the president.
That was months before the House started an impeachment inquiry into Mr Trump’s effort to get Ukraine to announce an investigation of former vice president Joe Biden. The administration filed a notice of appeal early on Tuesday and asked Judge Jackson to put her ruling on hold during the appeal.
“This decision contradicts longstanding legal precedent established by Administrations of both political parties,” White House press secretary Stephanie Grisham said. “We will appeal and are confident that the important constitutional principle advanced by the Administration will be vindicated.”
William Burck, a lawyer for Mr McGahn, said the former White House counsel will comply with the subpoena, absent a court-imposed stay. The White House has argued that Mr McGahn and other witnesses have “absolute immunity” from giving evidence.
But Judge Jackson disputed the administration’s reasoning in a 118-page ruling. “That is to say, 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 complying with a valid congressional subpoena, she wrote.
Whether Mr McGahn has to provide all the information Congress seeks is another matter, the judge wrote. The president may be able to assert “executive privilege” on some sensitive issues, she said.
Mr McGahn was a vital witness for Mr Mueller, whose April report detailed the president’s outrage over the investigation into Russian meddling in the 2016 election and Mr Trump’s efforts to curtail it.
In interviews with Mr Mueller’s team, Mr McGahn described being called at home by the president on the night of June 17 2017, and being directed to call the Justice Department and say Mr Mueller had conflicts of interest and should be removed.
Mr McGahn declined the command, deciding he would resign rather than carry it out, the report said.
Once that episode became public in the news media, the report said, the president demanded Mr McGahn dispute the news stories and asked him why he had told Mr Mueller about it and why he had taken notes of their conversations. Mr McGahn refused to back down.
It is unclear if Mr McGahn’s evidence would include any new revelations beyond what Mr Mueller has already released. The special counsel concluded he could not exonerate Mr Trump on obstruction of justice, but also that there was insufficient evidence to prove a criminal conspiracy between Mr Trump’s campaign and Russia.
House Democrats leading the impeachment inquiry have yet to try to force Mr Bolton to give evidence, and a subpoena for his former deputy, Charles Kupperman, to appear was withdrawn. Democrats have said they do not want to get bogged down in court fights over evidence.
Charles Cooper, Mr Kupperman’s lawyer, said the McGahn ruling does not necessarily cover close presidential advisers “whose responsibilities are focused exclusively on providing information and advice to the President on national security”.
Mr Kupperman is pursuing a separate lawsuit in which he wants US District Judge Richard Leon to rule whether he would be required to comply with a congressional subpoena.