Judges Jackson & Bates are absolutely right to reject DOJ's groundless argument that close current and former aides to the POTUS are absolutely immune from compelled congressional testimony. [1]
@just_security @adamliptak @savage @steve_vladeck @scotusreporter @AHoweBlogger
@just_security @adamliptak @savage @steve_vladeck @scotusreporter @AHoweBlogger
Nevertheless, the McGahn decision today is not remotely as important, as a practical matter in the short term, anyway, as the Trump v. Mazars case about to be at the SCOTUS (w/r/t which the Court stayed the mandate this evening). There are at least five reasons why not. [2]
i. It'll probably take months for the court of appeals and SCOTUS to consider the McGahn case, by which time the impeachment proceedings will be over.
ii. Although I doubt DOJ could win on the merits, ... [3]
ii. Although I doubt DOJ could win on the merits, ... [3]
... and although it should also lose on *most* of the justiciability arguments it raises (e.g., jurisdiction/standing/separation-of-powers), there's one such argument--the alleged lack of a statutory cause of action (see pp. 77-81 of the Jackson opinion)--... [4]
on which the SCOTUS might agree with DOJ. In which case the suit would be dismissed without a ruling on the merits of the immunity claim.
iii. Even if the Court were ultimately to require McGahn to testify, it's doubtful he has very much to add ... [5]
iii. Even if the Court were ultimately to require McGahn to testify, it's doubtful he has very much to add ... [5]
... to the extraordinarily damning testimony he offered to Mueller, which is *already in the Mueller Report,* and which isn't seriously contested: everyone of good faith knows that McGahn's account of Trump's gross breach of duty is true. [6]
iv. To the extent the House were to ask McGahn to describe *other* conversations he had w/Trump, or that Trump had w/foreign officials, apart from those recounted in the Mueller Report, Trump would almost certainly interject claims of executive privilege, ... [7]
... and it's not at all clear how those claims would be resolved, e.g., whether there would be some way to get the judiciary to rule on them. Best-case scenario: It takes a *very* long time. [8]
v. In the meantime, the House isn't going to subpoena any other close POTUS aides (e.g., Bolton, Mulvaney) to testify in the impeachment proceedings if Trump asserts immunity w/r/t them, so the McGahn case won't have significant "spillover" effects on those proceedings. [9]
* * * *
By contrast, as I explained this morning, the Trump v. Mazars case *does* have the potential to result in disclosure of important new evidence (inculpatory or exculpatory or both) w/r/t Ukraine/Russia and other impeachment-related matters. [10]
balkin.blogspot.com/2019/11/unders…
By contrast, as I explained this morning, the Trump v. Mazars case *does* have the potential to result in disclosure of important new evidence (inculpatory or exculpatory or both) w/r/t Ukraine/Russia and other impeachment-related matters. [10]
balkin.blogspot.com/2019/11/unders…
The fact that the SCOTUS appears to have put that Mazars case on a relatively fast track is welcome, whether the Court denies certiorari next month or proceeds to consider the merits. [11, fin]
