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In McGahn Ruling, the Stakes Are High

Could affect separation of powers, along with the impeachment inquiry
By John Johnson,  Newser Staff
Posted Nov 26, 2019 11:47 AM CST

(Newser) – Will former White House counsel Don McGahn have to testify before Congress about his old boss? A federal judge ruled Monday that he must, but the Justice Department said Tuesday that it will appeal, reports the Hill. No word yet on when a final resolution to the case might come, but the Washington Post thinks this could end up in the Supreme Court. And the stakes go beyond whatever McGahn might or might not say about President Trump's actions. This one "sets up a potentially landmark Supreme Court test of the Constitution's checks and balances, pitting Congress' impeachment and oversight authority against the powers of the presidency," per the Post. What's more, it could also affect the impeachment inquiry. Coverage:

  • Significance: A story at Politico agrees with the assessment of the Post, asserting that the case "could reshape the balance of power between Congress and the executive branch." A widely quoted line in the ruling by Judge Ketanji Brown Jackson of the Federal District Court for DC speaks to that point: "Presidents are not kings," wrote Jackson, per the New York Times. "They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."
  • The issue: Trump claims McGahn has "absolute immunity" and shouldn't have to testify. As the AP recounts, Democrats wanted him to answer questions about possible obstruction by Trump in regard to the Robert Mueller investigation. (McGahn spoke to Mueller's investigators for 30 hours.) His lawyer says he'll comply with whatever the courts decide.

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  • Impeachment angle: Trump has used the same "absolute immunity" argument to prevent key figures, including former national security adviser John Bolton; his deputy, Charles Kupperman; and White House chief of staff Mick Mulvaney from testifying in the impeachment inquiry. However, they could be compelled to testify if the White House loses its immunity argument—maybe. Bolton's attorney says that because McGahn's case doesn't involve national security, it won't necessarily affect his client, per Law and Crime.
  • What Trump says: In tweets Tuesday, he said he'd "love" to have people in his administration testify, but "future Presidents should in no way be compromised. What has happened to me should never happen to another President!" His press chief, Stephanie Grisham, addressed Monday's ruling and said it "contradicts long-standing legal precedent established by administrations of both political parties."
  • From the right: The judge is wrong and the precedent is dangerous, writes Elizabeth Vaughn at RedState. "One by one, Democrats are removing the tools a president requires to conduct the business of running the country," writes Vaughn. "Their ongoing crusade to strip away the powers of the commander in chief and turn them over to Congress will weaken not only the presidency, but ultimately the entire country."
  • From the right, II: A president must be able to seek legal advice from an attorney without interference from Congress, says radio host Mark Levin, per Fox News. The judge "is tilting the balance of power far away from the president to the Congress, changing the structure of our government."
  • From the left: The ruling "was an unambiguous rejection of the Trump administration’s sweeping and suspect immunity claim that has served as a giant roadblock to congressional oversight of the executive," writes Kerry Elevald at Daily Kos.
(Read more Don McGahn stories.)

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