Last week marked a low point in Donald Trump’s quest for presidential superpowers. On Monday, a federal judge in the District of Columbia ruled that former White House Counsel Don McGahn does not have absolute immunity from having to testify before the House Judiciary Committee regarding misconduct by Trump and his associates in the lead-up to the 2016 presidential election. “Presidents are not kings,” Judge Ketanji Brown Jackson wrote. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
In practical terms, the court declared that Trump cannot lawfully forbid anyone and everyone he’s ever worked with from heeding legislative requests for information. This isn’t even a close question, as the stark language of Jackson’s 120-page ruling made clear. Notwithstanding White House Counsel Pat Cipollone’s October 8 letter—in which he deemed the impeachment inquiry unconstitutional and announced that the administration would not cooperate in any way—the president cannot prohibit current or former government employees from testifying when called before Congress.
Which is why House Democrats’ milquetoast response to widespread defiance of congressional subpoenas is both perplexing and disturbing. When faced with credible evidence of serious misconduct, Congress has a constitutional duty to hold the president accountable on behalf of the people. Yet House leaders have psyched themselves out of fully exercising that duty.
House leaders have left a long list of subpoenas for dead: Acting White House Chief of Staff Mick Mulvaney refused to testify about his knowledge of Trump’s decision to withhold military aid to Ukraine. So did Robert Blair, a top Mulvaney aide who listened to the July 25 call in which Trump asked Ukrainian President Volodymyr Zelensky for the “favor” of announcing a criminal investigation into a domestic political rival, Joe Biden; John Eisenberg, a National Security Council lawyer who put a summary of the call on a top-secret computer server; Michael Ellis, Eisenberg’s deputy; State Department counselor T. Ulrich Brechbuhl, who was also on the July 25 call; Brian McCormack, former chief of staff to Energy Secretary Rick Perry; Russell T. Vought, acting director of the Office of Management and Budget; and a White House budget official named Michael Duffey. The House also requested the testimony of former Deputy National Security Adviser Charles Kupperman, but withdrew the subpoena on the curious rationale that Kupperman’s lawsuit seeking clarification on his subpoena obligations could slow down the impeachment investigation.
Subpoenas for documents also remain unanswered and unenforced. Defense Secretary Mark T. Esper, Secretary of State Mike Pompeo, Perry, and Trump’s lawyer Rudy Giuliani have all rebuffed requests. Meanwhile, none of these witnesses has been subpoenaed to testify before the House Intelligence Committee—nor has former National Security Adviser John Bolton—despite their deep knowledge of the president’s role in the Ukraine affair.
There’s no reason House Democrats could not have pursued lawsuits to compel compliance with all of the subpoenas while at the same time maintaining the brisk pace of the impeachment inquiry thus far. Courts can move quickly—but only if asked.
Democrats might be betting that widespread defiance of subpoenas at the president’s behest bolsters the case for an article of impeachment for obstruction of justice. Another concern might be that, even if courts rule swiftly and consistently that former and current employees lack blanket immunity from testifying, some might still show up and refuse to speak on the basis of executive privilege—leaving Congress empty-handed despite protracted litigation.
Nevertheless, the House should fight hard for access to the full story about the president’s Ukraine shenanigans, and not let the executive branch win by default. Some current and former executive-branch officials, including Ambassador Gordon Sondland and former National Security Counsel expert Fiona Hill, have testified in spite of White House efforts to stonewall Congress. Others, including former Ambassador Marie Yovanovitch, have done so despite intimidating tweets from the president of the United States. Aggressive litigation on all subpoenas would persuade more witnesses to do the same, while showing support for the courageous people who have already complied.
Even if some House subpoenas end up stuck in litigation for months, the chamber can move forward with impeachment anyway. The result, in short, will be no worse than the status quo—in which House members are being denied documents and testimony that the American public should rightly have.
The Constitution sets up three branches of government—legislative, executive, and judicial—and subjects each to various checks by the other two. In practice, though, the Department of Justice’s internal guidance prohibiting federal prosecutors from indicting a sitting president means that the criminal-justice system will be of no help in addressing any misdeeds by Trump. (Special Counsel Robert Mueller’s futile report, which detailed the Trump campaign’s acceptance of Russian interference in the 2016 presidential election and Trump’s subsequent efforts to obstruct justice, is a case study in how laws are meaningless without the prospect of enforcement.)
It’s thus up to Congress to hold presidents accountable to the rule of law. If Congress is unable to perform that role for lack of access to crucial facts, then the presidency will become singularly all-powerful. Conservative lawyers and jurists who promote the concept of “originalism”—whereby laws’ meaning derives from the plain text as illuminated by contemporaneous understandings of the drafters—should be the first to reject this paradigm shift. At the time of the Constitution’s ratification, in 1788, there was no question that the Framers wanted no more kings, and nothing in the plain text of the Constitution exempts the president from congressional scrutiny.
Which brings us back to Jackson’s decision ordering McGahn—now a private citizen—to comply with Congress’s subpoena for testimony. As the judge noted, the question McGahn raised had already been answered in no uncertain terms by Judge John D. Bates in a 2008 decision ordering President George W. Bush’s chief of staff and legal counsel to comply with congressional subpoenas for testimony about the firings of a slew of U.S. attorneys. Bates was no stranger to separation-of-powers issues, having served as a deputy independent counsel in the Whitewater investigation of President Bill Clinton.
As Bates noted (and Jackson reiterated this week), there is no such thing as absolute testimonial immunity for presidents—let alone for people who once worked with presidents. Clinton was ordered to show up for a civil deposition while he was president, and the Supreme Court rejected Richard Nixon’s bid to quash a criminal subpoena for audiotapes of conversations in the Oval Office—among the most intimate and sensitive matters that any president could conceivably seek to protect. If presidential confidentiality must at times yield to broader public interests in transparency and accountability, then surely private citizens who once worked in the White House can’t categorically snub congressional subpoenas for information bearing on executive-branch oversight. Indeed, Nixon’s respect for the Supreme Court’s decision ended his presidency.
Just last week, another D.C. federal judge issued a preliminary injunction requiring the government to comply with a private party’s Freedom of Information Act request for documents regarding the Trump administration’s decision to hold up nearly $400 million in aid to Ukraine authorized by Congress. The Trump administration may be gaining some ground by pursuing its legal skirmishes on appeal; the U.S. Supreme Court recently stayed a lower court’s order directing an accounting firm to comply with a House subpoena for Trump’s tax records. Yet the president’s truculence in court is all the more reason for House Democrats to fight for accountability and transparency on as many fronts as possible—not to concede some battles before they happen.
Perhaps encouraged by a favorable decision in the McGahn case, the House Committee on Oversight and Reform filed a lawsuit Tuesday to enforce subpoenas issued to Attorney General William Barr and Commerce Secretary Wilbur Ross in connection with the Trump administration’s efforts to add a citizenship question to the 2020 census form. If House Democrats are finally noticing that it’s their constitutional right—and public obligation—to enlist the judicial branch in the showdown over the people’s power to self-govern, then the Constitution is better for it.
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