U.S. judge backs House subpoena for ex-White House counsel's testimony

WASHINGTON, Nov 25 (Reuters) - Former White House counsel Don McGahn must comply with a congressional subpoena seeking his testimony about President Donald Trump's efforts to impede the now-completed federal investigation into Russian interference in the 2016 U.S. election, a judge ruled on Monday.

In an important case about presidential powers, U.S. District Judge Ketanji Brown Jackson in Washington rejected the Trump administration's legal claim that current and former senior White House officials cannot be compelled to testify before Congress.

"Executive branch officials are not absolutely immune from compulsory congressional process - no matter how many times the executive branch has asserted as much over the years - even if the president expressly directs such officials' noncompliance," Jackson wrote, adding that "this result is unavoidable as a matter of basic constitutional law."

McGahn, who left his post in October 2018, last May defied a subpoena from the Democratic-led House of Representatives Judiciary Committee for testimony. The subpoena was issued months before the House opened an impeachment inquiry in September into the Republican president's actions concerning Ukraine. The committee sued McGahn in August to try to enforce the subpoena.

The judge also wrote that "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."

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White House Counsel Don McGahn speaks at the Conservative Political Action Conference (CPAC) at National Harbor, Maryland, U.S., February 22, 2018. REUTERS/Kevin Lamarque
WASHINGTON, DC - APRIL 13: U.S. White House Counsel Don McGahn after the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. (Photo by Alex Wong/Getty Images)
UNITED STATES - FEBRUARY 01: Rob Porter, right, White House staff secretary, and Don McGahn, White House counsel, attend a luncheon featuring a speech by President Donald Trump at the House and Senate Republican retreat at The Greenbrier resort in White Sulphur Springs, W.Va., on February 1, 2018. (Photo By Tom Williams/CQ Roll Call)
WASHINGTON, DC - APRIL 13: U.S. White House Counsel Don McGahn (R) talks to acting U.S. Associate Attorney General Jesse Panuccio (L) after the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. (Photo by Alex Wong/Getty Images)
NEW YORK, NY - NOVEMBER 15: Don McGahn, general counsel for the Trump transition team, gets into an elevator in the lobby at Trump Tower, November 15, 2016 in New York City. President-elect Donald Trump is in the process of choosing his presidential cabinet as he transitions from a candidate to the president-elect. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - APRIL 13: U.S. White House Counsel Don McGahn after the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. (Photo by Alex Wong/Getty Images)
White House Counsel Don McGahn speaks at the Conservative Political Action Conference (CPAC) at National Harbor, Maryland, U.S., February 22, 2018. REUTERS/Kevin Lamarque
NATIONAL HARBOR, MD - FEBRUARY 22: White House Counsel Don McGahn speaks during CPAC 2018 February 22, 2018 in National Harbor, Maryland. The American Conservative Union hosted its annual Conservative Political Action Conference to discuss conservative agenda. (Photo by Alex Wong/Getty Images)
UNITED STATES - APRIL 7: Vice President Mike Pence and White House counsel Don McGahn, arrive in the Capitol on the day the Senate voted to confirm Neil Gorsuch as the next Supreme Court justice, April 7, 2017. (Photo By Tom Williams/CQ Roll Call)
American campaign finance lawyer Donald McGahn II takes the elevator at Trump Tower January 14, 2017 in New York / AFP / DON EMMERT (Photo credit should read DON EMMERT/AFP/Getty Images)
UNITED STATES - JANUARY 20: Don McGahn, White House counsel to President Donald J. Trump, is seen on the West Front of the Capitol after Trump was sworn in as the 45th President of the United States, January 20, 2017. (Photo By Tom Williams/CQ Roll Call)
White House Counsel Don McGahn speaks during the 2018 Conservative Political Action Conference in Oxon Hill, Maryland, on February 22, 2018. / AFP PHOTO / JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
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The judge said she was not addressing the separate issue of whether McGahn could withhold information by citing executive privilege, which is intended to keep confidential the nature of discussions between a president and close aides.

Jackson's ruling concerns only McGahn's testimony. But by rejecting Trump's key legal argument for defying congressional subpoenas it could give other former and current presidential advisers, like former White House national security adviser John Bolton, a legal basis for cooperating with the ongoing House impeachment inquiry, legal experts said.

The Trump administration has refused to cooperate with the impeachment inquiry as well as other Democratic-led investigations and has directed current and former officials to defy subpoenas for documents and testimony. There are other legal fights over subpoenas seeking Trump tax and financial records.

"We will appeal," a Justice Department spokeswoman said by email.

A representative for McGahn was not immediately available to comment.

 

A PIVOTAL FIGURE

McGahn emerged as a pivotal figure in the 448-page report completed in March by former Special Counsel Robert Mueller that detailed Russian interference in the 2016 election, through a campaign of hacking and propaganda, as well as extensive contacts between Trump's campaign and Moscow.

Mueller's report, released in redacted form in April, revealed about 10 instances in which Trump took actions aimed at impeding the investigation. Mueller did not exonerate Trump of obstruction of justice, though Attorney General William Barr, a Trump appointee, afterward decided that the president had not committed obstruction.

When the committee sued McGahn in August, it said it needed to speak with him to help lawmakers decide whether to include Trump's actions toward the Mueller investigation as part of an impeachment inquiry.

According to the Mueller report, McGahn told Mueller's team that Trump repeatedly instructed him to have the special counsel removed and then asked him to deny having been so instructed when word of the action emerged in news reports. McGahn did not carry out either instruction.

McGahn's relationship with Trump was strained by events of the Mueller investigation. Trump replaced him with Pat Cipollone, who still holds the job.

Several aides and advisers to Trump were charged in the Mueller investigation. All but two pleaded guilty, while longtime adviser Roger Stone and former campaign chairman Paul Manafort were convicted by juries. Mueller said he found insufficient evidence to charge Trump with criminal conspiracy concerning Russia.

House Democratic leaders have focused their impeachment inquiry on Ukraine, but have discussed pursuing a broader count of obstruction of Congress among any articles of impeachment - formal charges - brought against Trump. McGahn's testimony could bolster that part of their inquiry.

House passage of any articles of impeachment would lead to a trial in the Senate on whether to convict Trump and remove him from office. The Senate is controlled by Trump's fellow Republicans, who have shown little support for removing him.

(Reporting by Jan Wolfe; Editing by Will Dunham)

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