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Federal Judge Rules That Former White House Counsel Don McGahn Must Testify

Nov 25, 2019
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AILSA CHANG, HOST:

President Trump's former White House counsel, Don McGahn, must comply with a congressional subpoena and testify before lawmakers. That is according to a ruling today from a federal judge in Washington, D.C. NPR justice correspondent Ryan Lucas has been following this case and joins us now.

Hey, Ryan.

RYAN LUCAS, BYLINE: Hi there.

CHANG: All right. So can we just back up for a moment and remind all of us what was this case about?

LUCAS: So remember. Don McGahn was the White House counsel until about a year ago, around October 2018. So he was in the president's inner circle during most of the special counsel's Russia investigation. And according to Robert Mueller's final report, McGahn was a key witness for investigators and provided them with testimony about what he had witnessed. That includes several instances in which McGahn has firsthand knowledge of several things that the president did that are considered potential acts of obstruction of justice, such as the president telling McGahn to remove Robert Mueller.

CHANG: Right.

LUCAS: That makes McGahn someone who House Democrats really want to hear from.

CHANG: Sure.

LUCAS: They subpoenaed him this spring for testimony. The White House blocked McGahn from appearing. They cited a Justice Department Office of Legal Counsel opinion that top presidential advisers are absolutely immune from testifying before Congress. The House Judiciary Committee filed suit in federal court in Washington, D.C., in August to challenge that and to try to force McGahn to show up and testify.

CHANG: OK. That brings us to today's ruling. So what did the judge today have to say?

LUCAS: Well, the headline here is that Judge Ketanji Brown Jackson has sided with Congress and says that McGahn must appear and testify before the House committee. She says that as a matter of law, presidential aides, and that includes the top White House lawyer, must appear before Congress if compelled to do so. She said in her ruling that this means that such aides cannot defy a congressional subpoena on the basis of absolute testimonial immunity, even if the president for whom they work or worked demands that response.

CHANG: Oh.

LUCAS: Put simply, she said this. Quote, "the primary takeaway from the past 250 years of recorded history is that presidents are not kings."

CHANG: Not kings.

LUCAS: Not kings, so this is good news for Congress. But - and there is a but here. The judge says that while McGahn must appear, the judge is not saying that McGahn has to answer every question that the committee asks. In other words, the judge is not ruling that McGahn must speak about matters that are covered by executive privilege, which might be stuff that the House would be interested in.

CHANG: Got it, OK. So meanwhile, the House - it's in the middle of this whole impeachment inquiry. The administration has tried to block several senior administration officials from testifying, including acting White House chief of staff Mick Mulvaney, former deputy national security adviser Charles Kupperman. What could this ruling today mean for House Democrats trying to get those senior White House officials to show up and testify?

LUCAS: Well, in theory, this ruling could provide political cover for individuals who want to testify, want to come forward and do so. That said, there's no indication at this point that Mulvaney or Kupperman or former national security adviser John Bolton, for that matter, really do want to testify. Kupperman, for example - he sued the House and the administration over his congressional subpoena. The House ultimately withdrew that subpoena, but Kupperman's case in federal court here in Washington remains. The House wants him to abide by today's ruling in the McGahn case. But Kupperman's lawyer has said that the Kupperman situation is different because he focused on national security. And therefore, it's different than the case of McGahn, which was as White House lawyer.

CHANG: Oh, so maybe the executive branch has broader discretion to resist subpoenas.

LUCAS: A special cutout, right.

CHANG: OK. So do you think we're going to be seeing Don McGahn, the former White House counsel, show up anytime soon and testify before Congress?

LUCAS: Not anytime soon, no.

CHANG: (Laughter).

LUCAS: The Justice Department says that it plans to appeal today's ruling. That will kick this up to the D.C. Circuit. And any decision there would likely be appealed as well. This is a separation of powers question, so the stakes here are high. Neither Congress nor the White House is likely to let this one go. And while the Judiciary Committee has said that it wants to hear from McGahn as part of the impeachment inquiry, the man who is leading that, Adam Schiff, said today that his committee is drawing up its report from the recent public hearings and closed-door testimony on Ukraine. He expects that report to be delivered shortly after Thanksgiving, so we'll see. It's unclear whether McGahn's going to play any role in the impeachment inquiry.

CHANG: There may not be any time. That's NPR's Ryan Lucas.

Thanks so much, Ryan.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.