House Democrats have long sought to compel testimony from former White House counsel Don McGahn and even went to court to challenge an assertion of executive privilege by President Donald Trump to block his appearance.
Though a district court had initially sided with House Democrats and ordered McGahn to testify, that ruling was recently overturned by a three-judge panel of the D.C. Circuit Court of Appeals. Now House Judiciary Committee Chairman Jerry Nadler (D-NY) is demanding the full appeals court review the McGahn ruling, the Washington Examiner reported.
Battle over testimony
Nadler’s committee first issued a subpoena for McGahn’s testimony in April of 2019 in relation to the investigation and final report of then-Special Counsel Robert Mueller into alleged Russian collusion with the Trump campaign in 2016 and alleged obstruction of justice by the Trump administration.
The committee had hoped that McGahn’s testimony would somehow incriminate and undermine President Trump and lead to his removal from office. Of course, the White House blocked McGahn from testifying, and the legal battle over the subpoena ensued.
That fight continued on long after the Mueller report made it clear that there was no evidence of collusion or obstruction, with Nadler’s Democrats even continuing to push for McGahn’s testimony during the impeachment inquiry and trial on the unrelated and manufactured Ukraine “scandal.”
Nadler demands reconsideration
Nadler found no favor with the D.C. Circuit Court’s three-judge panel, however, and he has now requested that the entire federal appeals court review the case and, of course, reverse the panel’s ruling so that the committee’s subpoena may be enforced.
The congressman said in a statement, “The Committee’s petition argues that the panel’s ruling misread binding precedent and — if allowed to stand — would severely undermine the House’s ability to perform its constitutional functions as a check on the Executive Branch.”
“Two of the three judges on the panel strongly suggested that they would reject President Trump’s claim of ‘absolute immunity’ if they were able to reach the merits of the case,” Nadler added. “The full Court should promptly rehear this case and make clear, once and for all, that White House aides cannot ignore subpoenas from Congress.”
Key precedent at stake
Consider carefully for a moment what Nadler is asking the D.C. Circuit Court to do — abandon longstanding precedent relating to executive privilege and undermine the equally longstanding principle of attorney-client privilege, given McGahn’s role at the time as a lawyer representing the president in his official capacity.
Take a moment also to contemplate the full ramifications of what would happen if the full D.C. court decided to overrule the panel and force McGahn to testify. It would essentially mean that future presidents could no longer trust that necessarily candid discussions with close advisers and attorneys would be kept private, knowing that anything and everything said might eventually be revealed by way of congressional inquiry.
Nadler and the Democrats don’t like it one bit, but the D.C. panel was absolutely correct to rule against the enforcement of the subpoena of McGahn — not because that ruling protected President Trump, but because it protected the presidency as an institution and the separation of powers as a foundational concept of our system.
President Trump can take great satisfaction in watching Nadler squeal over this particular legal victory, and his laughter will be all the more sweeter when, hopefully, the full D.C. Circuit Court — if not eventually the Supreme Court — deals Nadler another loss in no uncertain terms.