A ruling in Don McGahn’s lawsuit could not have come at a worse time for the Trump administration.
Back in April, McGahn, a former White House counsel who resigned in October of 2018, was issued a subpoena by the House Judiciary Committee who wanted him to testify about President Donald Trump’s efforts to get him to fire Special Counsel Robert Mueller. President Trump, claiming an absolute privilege to prevent his current and former subordinates from testifying, ordered McGahn to ignore the subpoena. McGahn, finding himself in a constitutional no-man’s land between an executive branch claim of privilege and a legislative branch subpoena, opted to let the courts sort out the competing claims.
McGahn has a duty to comply
On Monday, a federal district court did just that, categorically rejecting President Trump’s claims and finding that McGahn had a duty to comply with the Judiciary committee’s subpoena and to appear before Congress to testify. “[T]he President does not have (and, thus, cannot lawfully assert) the power to prevent his current and former senior-level aides from responding to congressional subpoenas.”
The court observed that the duty to appear and offer testimony was completely separate from whether a witness could use an appropriate assertion of executive privilege — or some other privilege — to avoid answering a particular question. “White House aides can withhold the kinds of confidential and privileged information that distinguishes them from everybody else; they can do so by asserting an appropriate privilege if needed, when legislators ask questions that probe too deeply.”
