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StarfishSaver

(18,486 posts)
Mon Nov 25, 2019, 06:59 PM Nov 2019

McGahn must appear - can invoke executive privilege where appropriate

Sounds right.

Edit to add:

[As] far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth.

Nor is the power of the Executive unfairly or improperly diminished when the Judiciary mandates adherence to the law and thus refuses to recognize a veto-like discretionary power of the President to cancel his subordinates’ legal obligations. To the contrary, when a duly authorized committee of Congress issues a valid subpoena to a current or former Executive branch official, and thereafter, a federal court determines that the subpoenaed official does, as a matter of law, have a duty to respond notwithstanding any contrary order of the President, the venerated constitutional principles that animate the structure of our government and undergird our most vital democratic institutions are preserved.


This is HUGE

23 replies = new reply since forum marked as read
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McGahn must appear - can invoke executive privilege where appropriate (Original Post) StarfishSaver Nov 2019 OP
They are going to appeal that immediately to the CA DC and then to SCOTUS jberryhill Nov 2019 #1
True StarfishSaver Nov 2019 #2
Complete text jberryhill Nov 2019 #3
thanks -- lost that tab before I finished reading Hermit-The-Prog Dec 2019 #13
And if he does appear everything will be executive privilege. blueinredohio Nov 2019 #4
He may try, but they can go back to court to rule on EP. And the courts clearly aren't having it StarfishSaver Nov 2019 #7
Former White House counsel Donald McGahn must comply with House subpoena, Gothmog Nov 2019 #5
I hope to hell they make him say "Executive Privilege". CincyDem Nov 2019 #6
Even if appeatled, this is probably enough cover DeminPennswoods Nov 2019 #8
Neal Katyal-Ruling is a win for Nancy Pelosi and a major loss for trump Gothmog Nov 2019 #9
He must be so tired of winning StarfishSaver Nov 2019 #10
Here is a link to the opinion Gothmog Nov 2019 #11
Judge denied DOJ stay while case is appealed Gothmog Dec 2019 #12
This isn't uncommon. The appellate court will probably grant the stay StarfishSaver Dec 2019 #14
This is interesting Gothmog Dec 2019 #15
It is, indeed StarfishSaver Dec 2019 #17
We both know that as a good lawyer, you were going to read the entire opinion when you got a chance Gothmog Dec 2019 #18
:-) StarfishSaver Dec 2019 #19
Understand that I am corporate lawyer who has tried some securities related cases Gothmog Dec 2019 #20
You were trained to analyze and discern StarfishSaver Dec 2019 #21
Neal Katyal agrees with our analysis Gothmog Dec 2019 #22
Well, if he agrees with us, we know he's right StarfishSaver Dec 2019 #23
Judge flays DOJ, calling its arguments 'disingenuous' & 'unacceptable mischaracterization Gothmog Dec 2019 #16
 

jberryhill

(62,444 posts)
1. They are going to appeal that immediately to the CA DC and then to SCOTUS
Mon Nov 25, 2019, 07:00 PM
Nov 2019

And there will likely be stays pending appeals.

Just like the two tax cases that are, relatively quickly, now in the hands of SCOTUS.
 

StarfishSaver

(18,486 posts)
7. He may try, but they can go back to court to rule on EP. And the courts clearly aren't having it
Mon Nov 25, 2019, 07:16 PM
Nov 2019

And I'm not so sure he will since he already testified with Trump's permission on all of these issues to Mueller, thus, executive privilege has likely been waived.

Gothmog

(144,005 posts)
5. Former White House counsel Donald McGahn must comply with House subpoena,
Mon Nov 25, 2019, 07:06 PM
Nov 2019

No absolute immunity




Former Trump White House counsel Donald McGahn must comply with a House subpoena, a federal court ruled Monday, finding that top presidential advisers cannot ignore congressional demands for information and raising the possibility that McGahn could be forced to testify as part of the impeachment inquiry.

, U.S. District Judge Ketanji Brown Jackson of Washington, found no basis for a White House claim that the former counsel is “absolutely immune from compelled congressional testimony,” likely setting the stage for a historic separation-of-powers confrontation between the government’s executive and legislative branches.

The House Judiciary Committee went to court in August to enforce its subpoena for McGahn, whom lawmakers consider the “most important” witness in whether Trump obstructed justice in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election.....

“[T]he Court holds only that [McGahn] (and other senior presidential advisors) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute,” Jackson wrote, quoting a similar ruling by a Republican appointed judge in 2008 in a case involving former George W. Bush counsel Harriet Miers.. Like Miers, Jackson wrote, “Donald McGahn ‘must appear before the Committee to provide testimony, and invoke executive privilege where appropriate.

CincyDem

(6,283 posts)
6. I hope to hell they make him say "Executive Privilege".
Mon Nov 25, 2019, 07:10 PM
Nov 2019


Instead of this fake "I don't really want to say" privilege that's been getting a lot of air time lately.

Gothmog

(144,005 posts)
11. Here is a link to the opinion
Mon Nov 25, 2019, 07:50 PM
Nov 2019

I have scanned the opinion quickly and it is well written https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000

Finally, the Court turns to DOJ’s contention that, quite apart from the accepted
ability of a President to invoke executive privilege to protect confidential information
during the course of aides’ testimony before Congress, as a matter of law, it is the
President who controls whether such aide provides any testimony whatsoever. During
the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke
absolute testimonial immunity with respect to current and former senior-level aides
belongs to the President. (See, e.g., Hr’g Tr. at 42:15–16 (“[T]he President owns the
privilege here. So he is the owner of Mr. McGahn’s absolute immunity from
compulsion[.]”), 43:4–6 (“[T]he President owns the privilege as to former officials with
the same vigor with which he owns it to current officials.”), 125:5 (maintaining that
immunity is “the President’s to assert”).) And when asked whether this power of the
Executive is limited to such aides’ communications with Congress in particular, or also
extends to preventing his aides from speaking to anyone else (e.g., the media) even
after their departure from the White House, counsel indicated that while the Executive
branch has “not taken a position on that,” it was “definitely not disclaiming that.” (Id.
at 43:12–16.) This single exchange—which brings to mind an Executive with the power
to oversee and direct certain subordinates’ communications for the remainder of their
natural life—highlights the startling and untenable implications of DOJ’s absolute
testimonial immunity argument, and also amply demonstrates its incompatibility with
our constitutional scheme.
Stated simply, the primary takeaway from the past 250 years of recorded
American history is that Presidents are not kings. See The Federalist No. 51 (James
Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville,
Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans.,
Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound
by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of
liberty, it is indisputable that current and former employees of the White House work
for the People of the United States, and that they take an oath to protect and defend the
Constitution of the United States. Moreover, as citizens of the United States, current
and former senior-level presidential aides have constitutional rights, including the right
to free speech, and they retain these rights even after they have transitioned back into
private life.
To be sure, there may well be circumstances in which certain aides of the
President possess confidential, classified, or privileged information that cannot be
divulged in the national interest and that such aides may be bound by statute or
executive order to protect. But, in this Court’s view, the withholding of such
information from the public square in the national interest and at the behest of the
President is a duty that the aide herself possesses. Furthermore, as previously
mentioned, in the context of compelled congressional testimony, such withholding is
properly and lawfully executed on a question-by-question basis through the invocation
of a privilege, where appropriate. 34 As such, with the exception of the recognized
restrictions on the ability of current and former public officials to disclose certain
protected information, such officials (including senior-level presidential aides) still
enjoy the full measure of freedom that the Constitution affords. Thus, DOJ’s present
assertion that the absolute testimonial immunity that senior-level presidential aides
possess is, ultimately, owned by the President, and can be invoked by the President to
overcome the aides’ own will to testify, is a proposition that cannot be squared with
core constitutional values, and for this reason alone, it cannot be sustained.

Gothmog

(144,005 posts)
15. This is interesting
Mon Dec 2, 2019, 07:42 PM
Dec 2019

This is very relevant https://www.courtlistener.com/recap/gov.uscourts.dcd.210013/gov.uscourts.dcd.210013.53.0_1.pdf

‘[A]n impeachment investigation involving the President of the United States’
is ‘a matter of the most critical moment to the Nation.’” In re Application of Comm. on
Judiciary, 2019 WL 5608827, at *3 (quoting In re Report & Recommendation of June 6,
1972 Grand Jury, 370 F. Supp. 1219, 1230 (D.D.C. 1974) (Sirica, C.J.))) (alteration in
original). Indeed, the fact that the issuance of a stay of McGahn’s testimony would
impede an investigation that a committee of Congress is undertaking as part of an
impeachment inquiry is yet another distinction between the instant circumstances and
those that existed when the D.C. Circuit stayed the district court order in Miers. And as
this Court noted above, the D.C. Circuit Miers panel also did not address any of the
four traditional stay factors, each of which weighs against the issuance of a stay under
the circumstances presented here for the reasons previously explained.
 

StarfishSaver

(18,486 posts)
17. It is, indeed
Mon Dec 2, 2019, 08:29 PM
Dec 2019

Thanks for flagging it.

This is particularly compelling: "McGahn has already given sworn testimony to the Special Counsel, which makes it difficult to see why the Executive branch would be harmed if McGahn’s testimony proceeds while the appeal is pending."

 

StarfishSaver

(18,486 posts)
19. :-)
Mon Dec 2, 2019, 08:38 PM
Dec 2019

I was too quick with my assumption that this was a typical denial of a stay request. Now, I'm not so sure the appellate court will grant the stay. At least it will be difficult for them to do so without addressing Judge Jackson's analysis, which looks pretty solid.

Gothmog

(144,005 posts)
20. Understand that I am corporate lawyer who has tried some securities related cases
Mon Dec 2, 2019, 08:53 PM
Dec 2019

This is not my area of the law but this opinion does not look like a typical denial of stay opinion and I agree that it is well reasoned

 

StarfishSaver

(18,486 posts)
21. You were trained to analyze and discern
Mon Dec 2, 2019, 09:03 PM
Dec 2019

A lawyer doesn't need to be a litigator to recognize a well-reasoned opinion when you see one ...

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