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The White House Says Congress Can't Force Trump's Senior Advisers To Testify. A Judge Is About To Test That.

Democrats will almost certainly want to hear from White House officials named in the newly released whistleblower complaint. A judge next month will consider the administration's claim that Trump's senior advisers are "absolutely" immune.

Posted on September 26, 2019, at 2:20 p.m. ET

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Don McGahn

WASHINGTON — The whistleblower complaint released Thursday about President Donald Trump's call with the Ukrainian president in July reads like a road map for Democrats' impeachment investigation. It categorizes various administration officials with some connection to the call: White House officials who listened to it, non–White House officials briefed about it, advisers and officials name-dropped by the president, and White House lawyers involved in deciding how to handle a record of the call.

Lucky for House Democrats eager to move the impeachment investigation along as quickly as possible — or not, depending on the outcome — a judge is already set to hold a hearing next month to test the White House's claim that the president's past and present senior advisers are "absolutely immune" from being forced to testify before Congress.

A court fight over a subpoena to former White House counsel Don McGahn has been quietly simmering since the House Judiciary Committee filed suit in August. Subpoena fights over Trump's tax returns and financial records have gotten more attention in recent months, but as House Democrats turn their attention back to the White House as they probe the Ukraine call, the McGahn case suddenly takes on new significance.

During the July 25 call between Trump and Ukrainian President Volodymyr Zelensky, Trump asked Zelensky to "look into" unsubstantiated allegations against Democratic presidential candidate Joe Biden, among other things, according to a transcript of the call released by the White House on Wednesday. (It is not a verbatim transcript, according to a warning in the document.) The as-yet-unidentified whistleblower who first raised concerns about the July call also claimed they received information that White House lawyers directed officials to "lock down" records of the call.

A federal judge in Washington, DC, is scheduled to hear arguments in the McGahn case on Oct. 31. House Democrats want an order forcing McGahn to testify. The House general counsel's office contends the White House was wrong to claim that McGahn is constitutionally protected from being compelled by Congress to testify about his work in the White House — a protection the White House and Justice Department have said broadly extends to current and former senior presidential advisers.

"The Executive’s immunity theory for former advisers is as brazen as it is wrong: it places the President above the law and, by blocking testimony from a former official in the best position to condemn him, potentially renders the President unaccountable for misconduct while in office," the House's lawyers argued in a brief filed in late August.

The Justice Department, which is representing McGahn, is due to file its response next week. The administration already laid out its position in a May memo from the Justice Department's Office of Legal Counsel, though. Steven Engel, the head of OLC, wrote that the immunity argument predated the Trump administration.

"We provide the same answer that the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally
compel the President’s senior advisers to testify about their official duties," Engel wrote. "This testimonial immunity is rooted in the constitutional separation of
powers and derives from the President’s independence from Congress."

Since Democrats took control of the House in January, the White House and the Justice Department have repeatedly invoked the absolute immunity argument in rebuffing subpoenas and informal requests for testimony from past and present members of the Trump administration, including senior counselor Kellyanne Conway, former senior adviser Hope Hicks, and former presidential aides Rick Dearborn and Rob Porter. The White House also directed former Trump campaign manager Corey Lewandowski, who did not serve in the administration, to refuse to testify about his communications with Trump and senior White House advisers.

Democrats have only gone to court over one such refusal so far — McGahn's decision to defy a subpoena to testify about events described in former special counsel Robert Mueller's report. The special counsel's office detailed discussions that McGahn had with Trump and other White House officials about the possibility of removing Mueller or firing then–attorney general Jeff Sessions. The report also discusses Trump's efforts to have McGahn deny media reports about their discussions about Mueller.

The House Judiciary Committee repeatedly and explicitly stated in court papers that its desire to question McGahn is part of potential impeachment proceedings. That was before Speaker Nancy Pelosi's announcement this week that the House was formally launching an impeachment inquiry. Pelosi didn't announce the creation of a new special committee, but rather said that the inquiry would cover all the existing committee investigations, as well as new ones, particularly into the Ukraine call.

The Supreme Court has never ruled on whether past and present senior White House advisers are absolutely immune from being forced to testify before Congress. The Justice Department's legal opinion in May noted that while the executive branch's position has long been that senior advisers are entitled to immunity, previous administrations sometimes agreed to waive that immunity or reached agreements with Congress so that officials could testify under oath. No appeals court has ever ruled on the issue either, Engel wrote.

The one time a federal judge did weigh in, the White House lost. In 2007, House Democrats subpoenaed testimony from Harriet Miers, who had served as White House counsel to President George W. Bush. Miers was subpoenaed as part of a probe into the forced resignations of a group of US attorneys. The House Judiciary Committee turned down the White House's offer to allow Miers to testify with certain restrictions.

The Justice Department argued Miers was entitled to absolute immunity. In a July 2008 opinion, US District Judge John Bates disagreed.

"The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law," Bates wrote.

Bates noted that the Supreme Court ruled in 1982 that senior White House aides weren't entitled to "absolute immunity" against civil lawsuits related to their official duties. The justices at the time rejected an argument — similar to the one the White House and Justice Department made in opposing the Miers subpoena — that the president's immunity against lawsuits related to his official responsibilities extends to senior aides.

Bates wrote that there might be times when aides could claim absolute immunity in cases involving national security or foreign affairs, but that wasn't at issue with the Miers subpoena. The Bush administration appealed, but later reached an agreement with House Democrats and the appeal never went forward.

House Democrats have highlighted Bates's decision in arguing that McGahn should be forced to testify. But because Bates is a district court judge, his opinion isn't binding on the judge handling the McGahn case, US District Judge Ketanji Brown Jackson.

A Justice Department spokesperson declined to comment. McGahn did not return a request for comment.

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