A federal judge ruled that former White House counsel Don McGahn must show up to testify to the House, but can refuse to answer questions because of executive privilege.
“Accordingly, just as with Harriet Miers before him, Donald McGahn ‘must appear before the Committee to provide testimony, and invoke executive privilege where appropriate,’” Judge Ketanji Brown Jackson wrote.
She continued: “As a matter of law, senior-level current and former presidential aides, including White House Counsels, must appear before Congress if compelled by legislative process to do so. 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.”
The judge also ruled that absolute immunity” from compelled congressional testimony “simply does not exist.”
“To make the point as plain as possible, it is clear to this Court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist,” she wrote. “Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in [Office of Legal Counsel] opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.”
Separately, concerning executive privilege, the ruling stops short of saying White House officials must answer all questions they are asked before Congress. Instead, the ruling focuses on whether an official like McGahn must appear for testimony once subpoenaed.
“If a duly authorized committee of Congress issues a valid legislative subpoena to a current or former senior-level presidential aide, the law requires the aide to appear as directed, and assert executive privilege as appropriate,” the judge wrote in the 120-page opinion today.
