WASHINGTON – In her ruling that Don McGahn must comply with a congressional subpoena, U.S. District Judge Ketanji Brown Jackson of Washington goes to great lengths to illustrate how far out on a constitutional limb President Donald Trump and Attorney General William Barr have crawled with their absolutist claims of executive power.
Jackson invokes “Animal Farm” as she dismisses the Justice Department’s position that the president alone has the authority to make unilateral determinations regarding whether he and his senior aides, current and former, will respond to, or defy, subpoenas from House committees during investigations of potential wrongdoing by his own administration.
“For a similar vantage point, see the circumstances described by George Orwell,” the judge writes in her 118-page decision. “All animals are equal but some animals are more equal than others.”
House Democrats want the former White House counsel, who left his position in October 2018, to testify about the episodes of possible obstruction of justice that former special counsel Robert Mueller outlined in his report. They are debating whether to proceed with articles of impeachment related to the president’s alleged efforts to undermine that investigation. Jackson said McGahn can assert executive privilege when asked specific questions, but Trump cannot issue a blanket order to stop his former aide from showing up to testify.
“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,” she concludes.
The Justice Department, which is representing the former White House counsel in the case, quickly announced plans to appeal, and the White House decried the ruling in a statement. McGahn’s lawyer said his client will comply with Jackson’s order to appear unless a court issues a stay pending appeal.
Jackson accuses the Trump administration of “emasculating” the House by trying to thwart its ability to seek redress from the courts when subpoenas are ignored. The judge quotes from “The Federalist Papers,” specifically No. 51 by James Madison and No. 69 by Alexander Hamilton, along with Alexis de Tocqueville’s “Democracy in America,” as she rejects the administration’s argument that White House senior staff are “absolutely immune.”
Trump has cottoned to describing his authority as “absolute.” He has publicly declared his intention to stonewall and ignore all subpoenas. White House counsel Pat Cipollone said in an Oct. 8 letter that the administration would not cooperate in any way with the House’s inquiry into whether the president abused his power vis-a-vis Ukraine.
Some variant of the word “absolute” appears 124 times in Jackson’s opinion. She picks apart each of the Justice Department’s arguments with often elegant prose and lays out a standard for compliance that would apply just as much to, say, former national security adviser John Bolton as McGahn. She apparently wrote this opinion knowing that her decision would be appealed, and the case could eventually wind up before the Supreme Court. Some Democrats hope that her ruling, in the meantime, could embolden other current or former Trump administration officials to comply with subpoenas and appear for depositions.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson writes. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.”
Jackson, nominated by Barack Obama, has been a district court judge since 2013. Still only 49, she’s often mentioned in elite legal circles as a possible nominee for the Supreme Court by a future Democratic president, which could make her the first black woman to join the high court. The judge studied government as an undergraduate at Harvard and stayed for law school, like Chief Justice John Roberts, where she was a supervising editor of the Harvard Law Review. Jackson clerked for Justice Stephen Breyer, served as a federal public defender and spent a few years in private practice.
The judge blasts the Justice Department for arguing in the McGahn case that courts don’t have the jurisdiction to adjudicate disputes between the legislative and executive branches while the president’s personal lawyers simultaneously ask courts to block subpoenas for his tax records. “A lawsuit that asserts that a legislative subpoena should be quashed as unlawful is merely the flip side of a lawsuit that argues that a legislative subpoena should be enforced,” she explains. “DOJ implicitly suggests that (much like absolute testimonial immunity) the subject-matter jurisdiction of the federal courts is properly invoked only at the pleasure of the President.”
Jackson emphasizes that a 1971 memo from Richard Nixon’s Office of Legal Counsel asserting that senior White House aides do not need to appear before Congress is “neither precedential nor persuasive.” She argues that the executive cannot be the judge of its own privilege. “Fifty years of say so within the Executive branch does not change that fundamental truth,” she adds.
The judge notes that Ronald Reagan, during the Iran-Contra affair, declined to assert executive privilege and even furnished relevant excerpts of his personal diaries to Congress for review. She recalls how George Washington turned over records so that Congress could investigate a military operation that went awry. She also notes how legislative and executive branches have often reached accommodations to prevent courts from getting involved and points out that Trump has rejected this approach.
Jackson repeatedly cites a 2008 decision in which U.S. District Judge John Bates, also of Washington, rejected President George W. Bush’s bid to block testimony by his former counsel Harriet Miers to the House Judiciary Committee on the firings of U.S. attorneys. An appeals court never ruled on the case because the White House and Congress reached an accommodation. But Bates, a Bush appointee, concluded that the Bush administration’s claim of “absolute immunity from the compelled congressional process for senior presidential aides is without any support in the case law.”
Jackson cites or refers to Bates’ ruling more than 40 times. “Just as with Harriet Miers before him,” Jackson writes, “Donald McGahn must appear.”
She explains how legislative subpoenas are older than the country itself. Citing a 1926 law review article, Jackson notes that, even before the ratification of the Constitution in 1787, the colonial assemblies, like the House of Commons, assumed, usually without question, the right to investigate. She shows how the historical roots of the concept of a “subpoena” go back to the times of ancient Rome and Athens. Jackson traces how the concept evolved in English common law. Jackson quotes an opinion from Chief Justice John Marshall in 1807 that concluded “the obligation [to comply with a subpoena] is general, and it would seem that no person could claim an exemption” from it.
“As far as this Court can tell, no federal judge has ever held that defiance of a valid subpoena does not amount to concrete and particularized injury in fact; indeed, it appears that no court has ever even considered this proposition,” Jackson writes. “And perhaps for good reason: if defiance of duly issued subpoenas does not create Article III standing and does not open the doors of the court for enforcement purposes, it is hard to see how the wheels of our system of civil and criminal justice could keep turning.”
Judges always cite precedents, of course. That’s their job. But it reveals something deeper about the present political moment that so many federal judges, appointed by previous presidents of both parties, feel compelled to offer what read like increasingly discursive and detailed, history lessons in their rulings to illustrate why Trump’s conception of his power is so at odds with the American tradition. In May, for example, another judge at the same courthouse likened Trump to James Buchanan, who also whined about “harassment” from Congress. Perhaps part of the impulse is the incumbent’s clear disinterest in U.S. history or his demonstrated lack of basic historical knowledge.
For his part, Barr has been accusing “the left” of trying to “incapacitate” Trump by conducting oversight, which he likens to a “war” on the president. “The fact of the matter is that, in waging a scorched earth, no-holds-barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and the undermining of the rule of law,” the attorney general said at the Federalist Society’s annual meeting earlier this month. “I don’t deny that Congress has some implied authority. But the sheer volume of what we see today, the pursuit of scores of parallel investigations through an avalanche of subpoenas, is plainly designed to incapacitate the executive branch and indeed is touted as such.”
This case could certainly end up on the Supreme Court’s docket. The justices, including two appointed by Trump, may soon weigh in on other major cases revolving around the separation of powers. Last night, for instance, the Supreme Court blocked a House committee from immediately reviewing Trump’s financial records after the president’s lawyers agreed to an expedited review of a lower court ruling granting access.
“The court’s action signals that, even as Congress considers impeaching Trump, the court will undertake a more complete consideration of the legal powers of Congress and state prosecutors to investigate the president while he is in office,” The Washington Post reported. “The court instructed Trump’s lawyers to file a petition by Dec. 5 stating why the court should accept the case for full briefing and oral argument. If the petition is eventually denied, the lower-court ruling will go into effect. If accepted, the case probably will be heard this term, with a decision before the court adjourns at the end of June.”
In the meantime, Trump’s refusal to cooperate with the House investigations is likely to emerge as the basis for its own article of impeachment. House Intelligence Committee Chairman Adam Schiff, D-Calif., said in a letter to his colleagues on Monday that he plans to send a report summarizing the conclusions of his investigations to the House Judiciary Committee soon after Congress returns from Thanksgiving break next week. “We will catalog the instances of noncompliance with lawful subpoenas as part of our report to the Judiciary Committee,” Schiff wrote, “which will allow that Committee to consider whether an article of impeachment based on obstruction of Congress is warranted along with an article or articles based on this underlying conduct or other presidential misconduct.”