The Justice Department Argued Congress Can’t Force Senior Trump Advisers To Testify And That There’s Nothing Courts Can Do About It

The legal fight involves the Mueller report and tests an immunity argument that the Trump administration is making to block potential witnesses from testifying in the impeachment inquiry.

WASHINGTON — Current and former senior advisers to President Donald Trump are immune from being forced to testify in Congress, the Justice Department told a judge on Thursday — after arguing that the courts shouldn’t be involved in this kind of fight between the White House and Congress in the first place.

The case involves a subpoena from the House Judiciary Committee to former White House counsel Don McGahn. It predates House Democrats’ formal announcement of an impeachment inquiry into Trump, but represents the first test in court since Trump took office of an argument the administration is pushing to stymie the impeachment inquiry: that current and former senior White House officials have “absolute immunity” from congressional subpoenas.

Democrats wanted McGahn to testify about former special counsel Robert Mueller’s final report; McGahn left the White House in October 2018, long before the events this year surrounding Trump’s communications with Ukraine. But the investigation into whether Trump was involved in a quid pro quo with the Ukrainian government — withholding US financial aide in exchange for help investigating Joe Biden and undermining the Mueller investigation — loomed over arguments on Thursday.

Over nearly four hours of arguments, US District Judge Ketanji Brown Jackson repeatedly expressed skepticism as Justice Department lawyer James Burnham argued that the courts lacked authority to intervene in a fight over congressional demands for information. Like the immunity argument, the role of the courts also bears on Democrats’ impeachment inquiry — there’s already one lawsuit filed by a potential impeachment witness asking a judge to decide if he has to comply with a subpoena or go with the White House’s claim of immunity.

“So what does checks and balances mean?” Jackson asked. “How can the legislature actually exercise oversight with respect to the executive unless it has some ability to enforce its inquiries, its commandments with respect to ‘give me information’?”

Burnham replied by noting that there had been fights over information between Congress and the executive branch going back to George Washington, but it wasn’t until around a decade ago that the House had tried to go to court for a resolution. He argued that history supported the idea that the Constitution “functions just fine” without the court stepping in. Jackson replied that the question wasn’t whether the House had to go to court, but whether it could under the law, and history didn’t answer that.

Burnham argued that Trump, or any president, is absolutely immune from being forced to testify before Congress, and that the president’s immunity extended to current and former senior advisers. If aides weren’t entitled to immunity, they were “easily identifiable targets” for “harassment” by Congress, he argued.

Jackson asked questions suggesting she wasn’t convinced yet that the president is, in fact, entitled to immunity, and questioned Burnham about the significance of the Supreme Court ordering President Richard Nixon to turn over White House tapes as part of a grand jury investigation into the Watergate scandal. Burnham replied that there were important differences between the interests at play in a criminal investigation versus a congressional inquiry.

The Justice Department has previously acknowledged that the significance of the McGahn case extends beyond the Mueller probe. In a lawsuit brought earlier this month by Charles Kupperman, the former acting national security adviser in the Trump administration subpoenaed to testify in the impeachment inquiry, the Justice Department told a judge earlier this week that the case “raises a number of issues that may overlap with the issues presented” in the McGahn fight.

A ruling from a single district court judge isn’t binding on any other judge in the DC federal court, but judges do pay attention to what their colleagues do when presented with similar issues. Whoever loses at this stage of the McGahn case is expected to appeal to the US Court of Appeals for the DC Circuit. From there, the losing side could petition the Supreme Court to get involved.

“Absolute immunity”

Arguments on Thursday were divided into two parts. First, Jackson considered the Justice Department’s position that the court couldn’t hear the case at all — that there were a string of threshold problems with the lawsuit.

Burnham argued that the House of Representatives, as a general principle, could not sue the executive branch. Jackson repeatedly pushed back on that argument, saying she thought it was precisely the role of the judiciary, as a coequal branch of government, to serve as a check on the other two branches.

Jackson noted that the House had sued McGahn individually, not the White House. When Burnham replied that it was the same as suing the executive branch, since the House was only interested in McGahn’s testimony as a former White House counsel, Jackson asked whether that meant that the “absolute immunity” attached to former advisers forever: “Doesn’t that sweep so broadly?”

Burnham said the president retained the right to assert the immunity, not that it automatically meant all former advisers were permanently barred from talking about their time in the White House.

Megan Barbero, a lawyer with the House general counsel’s office, argued that some of the alternatives the House had for enforcing its subpoenas would pose even greater separation of powers issues — for instance, sending the sergeant at arms to arrest someone who failed to show up to testify.

The Justice Department under Trump has argued before in favor of a limited role for the courts in fights between Congress and the executive branch. In May, Burnham appeared in court on behalf of the administration to argue that Democrats couldn’t sue over Trump’s plan to redirect billions of dollars in federal funds to pay for construction of a border wall. A federal judge agreed that the House lacked the standing to sue and dismissed the case in June; the House has appealed.

Jackson questioned Burnham about whether there was any law that said the White House could completely block someone from showing up in response to a congressional subpoena, as opposed to the White House invoking executive privilege to block a witness from revealing certain information. Burnham replied that the notion that Congress could make a president testify was inconsistent with his status as an “independent constitutional actor,” and the immunity flowed to the advisers he relied on.

House General Counsel Douglas Letter countered that the framers of the Constitution explicitly made members of Congress immune from being forced to testify about the legislative process — and the Supreme Court had recognized that that immunity extended to congressional aides — but included no such immunity for the executive branch.

Absolute immunity “may be what Mr. Trump wants the law to be,” Letter said, but it wasn’t what the law is.

Letter said it wasn’t clear if the president himself was entitled to claim absolute immunity from a congressional subpoena. He acknowledged that Trump’s situation was “unique,” but the administration was wrong to argue that the president always won in a fight over whether his advisers could be forced to testify.

Jackson asked Letter if she had to decide now how much the House needed McGahn’s testimony as part of the impeachment investigation. Letter replied that was an issue for a later date — that assuming McGahn had to show up, there could then be a fight over whether the White House could claim executive privilege and block him from testifying about certain subjects.

McGahn and Mueller

McGahn served as Trump’s first White House counsel, and played a starring role in the section of the Mueller report that explored whether Trump tried to obstruct the Russia probe. McGahn cooperated with the special counsel’s office and provided hours of voluntary testimony. The final Mueller report confirmed that in June 2017, soon after the special counsel's appointment, Trump called McGahn and told him that Mueller had to go.

McGahn told the special counsel’s office he didn’t intend to act on the president’s request to arrange for Mueller’s removal; Trump wanted then–deputy attorney general Rod Rosenstein, who was overseeing the Russia probe because then–attorney general Jeff Sessions recused, to justify the removal by saying Mueller was conflicted in managing the investigation. McGahn went as far as to say that he was prepared to resign if forced to fire Mueller, although he didn’t tell that to Trump.

Trump denied that he told McGahn to have Mueller fired, but the special counsel’s office wrote that there was “substantial evidence” that’s what Trump had tried to do. McGahn was a “credible witness with no motive to lie or exaggerate given the position he held in the White House,” Mueller wrote.

The report also stated that former White House chief of staff Reince Priebus and McGahn talked about having to resign if Trump ordered them to fire Sessions, and described later efforts by Trump to have McGahn deny that the two men had discussed the possibility of removing Mueller in June 2017.

In March this year — as Mueller’s investigation was winding down but before the public release of the final report — the House Judiciary Committee asked McGahn to voluntarily produce documents as part of its own investigation into what had happened with the Russia investigation. Democrats had won back control of the House in the midterm elections a few months earlier, and were just starting to flex their new investigative powers.

McGahn’s lawyer forwarded the committee’s requests to the White House as well as Trump’s campaign; McGahn had been the top lawyer for the campaign leading up to the 2016 election. The committee then authorized issuing a subpoena to McGahn when the White House did not respond about the request for voluntary cooperation. The subpoena went out on April 22, directing McGahn to appear to testify on May 21.

The day before McGahn’s testimony date, current White House counsel Pat Cipollone wrote a letter to House Judiciary Committee Chair Jerry Nadler and said that McGahn was “absolutely immune” from being forced to testify before Congress as a former senior White House official. The Justice Department’s Office of Legal Counsel also released a memo explaining the administration’s position on immunity for current and former senior presidential advisers such as McGahn.

After additional efforts to negotiate having McGahn testify failed, the Judiciary Committee on Aug. 7 filed the lawsuit to enforce its subpoena.

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