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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsMcGahn must appear - can invoke executive privilege where appropriate
Sounds right.
Edit to add:
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
jberryhill
(62,444 posts)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)But I'd rather be on this side of the ruling than on Trump's.
jberryhill
(62,444 posts)Hermit-The-Prog
(33,041 posts)blueinredohio
(6,797 posts)StarfishSaver
(18,486 posts)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)No absolute immunity
Link to tweet
, 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 governments 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 IIIs 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)Instead of this fake "I don't really want to say" privilege that's been getting a lot of air time lately.
DeminPennswoods
(15,246 posts)for Bolton to testify.
Gothmog
(144,005 posts)StarfishSaver
(18,486 posts)Gothmog
(144,005 posts)I have scanned the opinion quickly and it is well written https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000
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, DOJs 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., Hrg Tr. at 42:1516 ([T]he President owns the
privilege here. So he is the owner of Mr. McGahns absolute immunity from
compulsion[.]), 43:46 ([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 Presidents 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 43:1216.) This single exchangewhich brings to mind an Executive with the power
to oversee and direct certain subordinates communications for the remainder of their
natural lifehighlights the startling and untenable implications of DOJs 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 11518 (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 Courts 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, DOJs 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)StarfishSaver
(18,486 posts)Gothmog
(144,005 posts)This is very relevant https://www.courtlistener.com/recap/gov.uscourts.dcd.210013/gov.uscourts.dcd.210013.53.0_1.pdf
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 McGahns 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)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 McGahns testimony proceeds while the appeal is pending."
Gothmog
(144,005 posts)StarfishSaver
(18,486 posts)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)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)A lawyer doesn't need to be a litigator to recognize a well-reasoned opinion when you see one ...