Trump Administration

“Presidents Are Not Kings”: Federal Judge Destroys Trump's “Absolute Immunity” Defense Against Impeachment

The Trump administration's claim that White House aides don't have to comply with congressional subpoenas is “a fiction” that “simply has no basis in the law,” the judge ruled.

By Alison Durkee

November 25, 2019

Since Democrats took control of the House of Representatives and embarked on their mission to investigate the Trump administration's misdeeds, the Trump White House has responded with a simple strategy: total stonewalling. From the House's investigation of the Mueller report's findings to the current impeachment inquiry, the Trump administration has refused to cooperate with any congressional subpoenas, claiming that White House staffers, including the president's senior aides, have “absolute immunity” that keeps them from having to appear before Congress. One such employee who was blocked on these grounds from testifying was former White House Counsel Don McGahn, who the House Judiciary Committee subpoenaed back in April to testify about alleged acts of obstruction by President Donald Trump, as detailed in the Mueller report. While the Trump administration has argued that McGahn is shielded from testifying before Congress, a new ruling issued Monday declares that's not the case—and completely destroys the White House's “absolute immunity” defense in the process.

U.S. District Judge Ketanji Brown Jackson ruled Monday that McGahn must comply with the congressional subpoena and testify before Congress, though he is entitled to “invoke executive privilege where appropriate.” But the issue at stake in the McGahn lawsuit was more broad than just the former counsel specifically, as Jackson acknowledged that the central question being asked is “whether senior-level presidential aides, such as McGahn, are legally required to respond to a subpoena that a committee of Congress has issued, by appearing before the committee for testimony despite any presidential directive prohibiting such a response.” In the ruling, Jackson gives a clear response: Yes, they definitely are.

Jackson's 120-page ruling offers a brutal takedown of the White House's beloved “absolute immunity” defense, which the judge describes as “baseless,” “a fiction that has been fastidiously maintained over time through the force of sheer repetition,” and as an idea that “simply has no basis in the law.” “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,” Jackson writes, claiming that the Justice Department's insistence that it does exist “promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards.” “In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny,” Jackson writes.

The ruling maintains that the Trump administration's insistence that it's shielded from oversight by the other two branches of government is antithetical to American democracy, as Jackson notes that the White House's line of reasoning “is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together.” “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson adds in the ruling. “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.”

House Judiciary Chair Jerrold Nadler celebrated Jackson's ruling, saying in a statement that McGahn “is a central witness to allegations that President Trump obstructed Special Counsel Mueller’s investigation, and the Administration’s claim that officials can claim ‘absolute immunity’ from Congressional subpoenas has no basis in law, as the court recognized today.” “Now that the court has ruled, I expect him to follow his legal obligations and promptly appear before the Committee,” Nadler added. McGahn's lawyer William Burck said in a statement that the former counsel is prepared to do just that, saying that his client “will comply with Judge Jackson’s decision unless it is stayed pending appeal.” The Department of Justice, however, could put a dent in McGahn's plans to testify, as the Trump administration has already vowed to appeal the ruling. “This decision contradicts longstanding legal precedent established by Administrations of both political parties,” the White House said in a statement. “We will appeal and are confident that the important constitutional principle advanced by the Administration will be vindicated.”

Though McGahn's case was undertaken before the current impeachment inquiry began—there's a separate case still pending that concerns a different, impeachment-related congressional subpoena—Jackson's ruling could have far-reaching implications as the House continues its impeachment investigation. Jackson states that the ruling applies to White House officials beyond McGahn, writing that “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.” McGahn's potential testimony could also prove salient should House Democrats follow through with plans to incorporate Robert Mueller's findings of alleged obstruction into their articles of impeachment, alongside the current Ukraine saga.

Given that the Trump administration intends to appeal the decision, Jackson's ruling and its thorough takedown of “absolute immunity” is unlikely to spur Trump allies in the White House to suddenly comply with their congressional subpoenas. But for current and former White House officials who want to testify but feel constrained by the directive not to cooperate, Monday's decision could be more effective, giving them a way to justify going against the administration. The ruling could “provide cover for other witnesses, especially former employees who are inclined to testify but feel compelled by the White House’s direction not to,” Jonathan Shaub, a former attorney in the Justice Department’s Office of Legal Counsel, told the Washington Post. (The attorney for former National Security Council adviser John Bolton, for instance, previously said Bolton “stands ready . . . to testify if the Judiciary resolves the conflict in favor of the Legislative Branch's position respecting such authority.”) In the wake of the McGahn ruling, House Intelligence Committee Chair Adam Schiff called on potential witnesses to heed Jackson's words, arguing that the ruling has “made it absolutely clear . . . that absolute immunity is not a legitimate basis by which to prohibit senior White House officials from testifying before Congress.”

“The witnesses who have defied Congress at the behest of the president will have to decide whether their duty is to the country, or to a president who believes that he is above the law,” Schiff said.