Hello from the DC federal courthouse, where a judge will hear args at 2pm in the fight over whether Dems can force former White House counsel Don McGahn to comply with a subpoena to testify.
Previously on what this has to do with the impeachment inquiry: buzzfeednews.com/article/zoetil…
Previously on what this has to do with the impeachment inquiry: buzzfeednews.com/article/zoetil…
Dems had subpoenaed McGahn earlier this year to testify about the Mueller report, and the White House took the position that McGahn — along with other current and former senior presidential advisers — is completely immune from being forced to do so by Congress
This argument — that current/former senior presidential advisers can't be forced to testify before Congress — is the same one the Trump administration has asserted in directing various people not to testify in the impeachment inquiry. So the McGahn case takes on new relevance
Meanwhile, another judge in this courthouse is holding a status conference at 4pm in former senior natsec adviser Charles Kupperman's case — DOJ had asked to postpone that given the McGahn hearing, but the judge only agreed to push it back from 3pm to 4pm
Kupperman filed a lawsuit asking a judge to decide if he should comply with Dems' subpoena to testify, or if the subpoena is invalid and he should go with the admin's directive not to testify. The case was just filed, so today's hearing is expected to go over what happens next
Judge Ketanji Brown Jackson has taken the bench for arguments in the Don McGahn subpoena fight (we only have audio in the media room, unfortunately, so I won't be able to relay facial expressions and such)
House General Counsel Douglas Letter will be arguing for the Judiciary Committee, and DOJ senior official James Burnham will be arguing for McGahn/the Trump admin. Both note some of their colleagues will have to leave at 4pm (assuming it's still going) for the Kupperman hearing
Jackson says she wants two sets of args: First over threshold issues like standing, jurisdiction, cause of action, separation of powers — things that could knock out the case before getting to the substance. Second, the core issue re: whether current/former officials are immune
(Megan Barbero from the House general counsel's office will be arguing the threshold issues first, not Douglas Letter)
Barbero begins by saying the House isn't asking the court to "tread any new ground" in hearing the case — she notes other judges have ruled in past congressional subpoena fights (re: Harriet Miers and Eric Holder). The Trump admin is arguing that court shouldn't hear this at all
Jackson asks about govt's arg that Dems don't *need* McGahn when they have the whole Mueller report. Barbero responds that the injury is the deprivation of info the committee/House is entitled to, and there is also a "need" — to test McGahn's credibility, hear directly from him
Dems are arguing that the McGahn subpoena is part of the broader impeachment inquiry — they want to ask about the Mueller report, not the more recent Ukraine business, but recall that Pelos said the impeachment inquiry incl. preexisting committee investigations into the president
Jackson asks about govt arg that this is a political dispute the court should stay out of. Barbero responds that there's DC Circuit and SCOTUS precedent (US v. Nixon) that says there is very much a role for the judiciary to play in a fight between the exec. and legisl. branches
Barbero says that just because the House has potential other alternatives for enforcing subpoenas, courts have recognized that it's preferable for the House to seek a judicial resolution as opposed to, say, sending out the sergeant at arms to arrest someone who refuses to comply
Barbero also argues that the court has jurisdiction to hear the case, and that DOJ's argument that it doesn't because there's another statute that only refers to subpoena enforcement suits by the *Senate* doesn't mean there's no jurisdiction over a case brought by the *House*
As for whether there's a cause of action for the House to sue, Barbero argues the Constitution gives the House the ability to come to court to enforce its powers to impeach and exercise legisl/oversight authority, even if the Constitution doesn't explicitly say yes you can sue
DOJ official James Burnham is up now. Jackson asks what she's supposed to do with prev. decisions re: Miers and Holder, with the understanding they aren't binding but they're still out there. Burnham said the Miers decision was wrong, and dealt with different jurisdiction issues
A lighter moment: Burnham tends to talk fast, and Jackson asked him to slow down. He was apologetic, she said it's fine he's being a good advocate, and he expressed appreciation for the sentiment, noting that his mom is in the courtroom today *chuckles and awws could be heard*
Jackson tries to unpack DOJ's arg that there isn't jurisdiction because the House can't sue the exec branch — isn't the House suing McGahn as a person out in the world, not the exec branch directly? Burnham says its in the context of former White House position
The judge questions whether that argument "sweeps so broadly" and could encompass ability of former officials to, say, go on TV or otherwise talk publicly about time in the White House. Burnham says the privilege remains the president's to assert, for former and current officials
Jackson asks if the exec branch could sue to stop former officials from talking about their service. Burnham says DOJ hasn't taken a position on that. But he says the House has recognized this not about a private citizen, noting they served the suit on the US attorney's office
On standing, Burnham argues role of courts is to address private rights/obligations, not decide bounds of constitutional authority of the other two branches. Jackson pushes back hard, saying she was under the impression that's exactly what should happen per checks and balances
Burnham says courts can get into constitutional authority only if there's a proper case/controversy, and that doesn't exist here — there's no cognizable stake/injury being asserted. Jackson again pushes back, noting House args about enforcing its authority and its need for info
Burnham points to an earlier case, Raines v. Byrd, in which SCOTUS said individual members of Congress didn't have automatic standing to go to court re: certain constitutional Qs. Jackson notes that was about individual members, not the House seeking to enforce its authority
Jackson asks: "So what does checks and balances mean?" She Qs how the leg branch can exercise oversight if there's no way to enforce inquiries/requests for info. She notes the House argues that alternatives, like having sergeant at arms arrest someone, are worse for sep of powers
Burnham turns to history, noting there have been interbranch disputes over info since George Washington, and it's not until recently that the House ever tried to go to court, which suggests the Constitution functions fine without litigation
Jackson replies that the Q here is not whether the House has to go to court, but whether they *can* go to court. Burnham says the House has other tools to enforce its authority — appropriations, legislation, nominations — and as a general proposition, the House can't go to court
Taking a step back, a common theme is that Jackson is very skeptical of DOJ's arg that the courts have no role to play in an interbranch dispute like this. Burnham has brought it up throughout args on threshold issues (standing, cause of action, etc.) and she is pushing back hard
During exchange re: cause of action, Jackson said she just doesn't understand the idea that the judiciary can't play the "traditional role of deciding what the law is." She said sep of powers could seem to counsel in favor of the branches being able to check each other
Two hours in, args have largely finished on the threshold issues in the McGahn subpoena fight re: standing, jurisdiction, etc. The judge is taking a 15-minute break, and then we'll get into the core issue about whether current/former senior WH advisers are totally immune
And we're back after a short break. Judge Jackson will now hear arguments on the Trump admin's contention that former/current senior presidential advisers are absolutely immune from being forced by Congress to testify
Burnham begins by saying just as Congress couldn't get around the bar on subpoenaing judges/justices to testify by subpoenaing clerks, Congress couldn't get around bar on subpoenaing a president by subpoenaing aides. Jackson jumps in to probe why a prez couldn't be subpoenaed
Burnham points to Nixon v. Fitzgerald, which held that a president was immune from civil damages liability for something they do as president. Jackson notes that a damages lawsuit is different from whether a prez could be subpoenaed to discuss activities as president
Burnham argues that US v. Nixon, where SCOTUS said Nixon had to turn over tapes in a criminal case, is different because it dealt with the unique interests of criminal process. Jackson asks why it's a relevant difference in considering whether a prez can be forced to provide info
Burnham replies that the notion that Congress could make a president testify is inconsistent with the president's status as an independent constitutional actor
Burnham notes that if the judge doesn't buy his arg that the president is absolutely immune from being forced to testify by Congress, the rest of his args are in "trouble" because they're derivative — that the immunity of past/current WH advisers stems from presidential immunity
Meanwhile, elsewhere in the courthouse:
Back to the McGahn case. If we assume the prez has absolute immunity, Jackson next asks why that would extend to a former official — she questions why the prez can prevent people from showing up at all, separate from the prez's ability to assert exec privil. over certain info
Jackson and Burnham spar over the significance of a district judge ruling 10+ years ago in the Harriet Miers case that a former WH official could be forced to comply with a subpoena. Jackson Qs why we haven't seen the "parade of horribles" if that's the only thing on the books
Burnham argues the Miers decision isn't seen as a big deal b/c it was one non-binding opinion from a district judge (ditto for Judge Amy Berman Jackson's opinion in the Eric Holder case) — Burnham argues WH aides would be easy targets for congressional harassment
Jackson poses hypo of whether a former WH counsel would be immune if Congress wanted to talk about a non-sensitive topic, like repairing/redecorating the WH. Burnham quips there actually is a problem with flies in the WH, so the prez would prob be okay if the House wanted to help
Joking aside, Burnham responds to the hypo by saying that yes, the president could still assert the testimonial immunity over a former White House counsel. Jackson responds that it sounds like Burnham is arguing for a "superior" authority for the prez to decide who can testify
We get close to the Ukraine issue — the judge poses hypo of a WH that makes a written record of every convo, and asks when the WH could be forced to give that up, noting Nixon tapes. Burnham says constellation of interests re: congressional testimony different from criminal case
Three hours in to this hearing, House General Counsel Douglas Letter is up. He acknowledges that the president is unique in any discussion about immunity, but argues that the immunity does not extend to aides as the president's alter egos
Letter draws a distinction with the Speech or Debate Clause of the Constitution, which provides members of Congress (and congressional aides, per SCOTUS) immunity from being forced to talk about legislative process, and notes the framers wrote no such clause re: exec branch aides
Letter argues that SCOTUS has held that executive privilege is not absolute and can be overridden. As for the concept of absolute immunity that DOJ is pressing in this case, Letter says that "it may be what Mr. Trump wants the law to be," but it's not what the law is
Letter, like Burnham, tries to invoke history to support his position, noting that past presidents have voluntarily gone before Congress (Lincoln, Wilson, Ford) — he says that unlike Trump, those presidents were not "stonewalling" and understood how govt works
But Jackson says that her concern with Burnham relying on historical practice cuts both ways — that just because presidents have decided to cooperate with Congress in the past isn't the same as saying those presidnets couldn't have lawfully asserted immunity
Letter argues that given precedent saying that executive privilege is not absolute, and that sometimes the president loses in this sort of fight, means that Burnham/DOJ is wrong to say that in this sort of situation, the president always wins re: immunity
Jackson asks if she needs to engage in an analysis of how much Congress needs McGahn's testimony as part of an impeachment investigation. Letter responds that could be part of the next stage, if the prez asserted executive privilege over what McGahn could say
In rebuttal (we're in the final phase now, 3.5 hours in), DOJ lawyer James Burnham says this is *not* about the Trump administration, that it has been the Justice Department's position for decades that there is immunity for presidential aides
And that's a wrap on args in the Don McGahn subpoena fight. Jackson says she understands need for speed, but she'll be in trial the next two weeks, which will make it difficult for her to find time to write right away. If the parties need swifter action from her, they can ask
Story coming on what exactly went down in court today, and why it matters for Democrats' impeachment inquiry, stay tuned...
NEW: The Justice Department argued in court today that Congress can't force current or former senior Trump advisers to testify — and that the courts shouldn't even be involved in this sort of fight between Congress and the White House at all buzzfeednews.com/article/zoetil…
