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Noting That 'Presidents Are Not Kings,' Federal Judge Rules Don McGahn Must Submit to Congressional Subpoena

"This ruling means not only that McGahn must provide testimony, but so must a raft of administration officials who have been stonewalling Congress in attempts to protect this president."

White House Counsel Don McGahn listens to Judge Brett Kavanaugh as he testifies before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC. (Photo: Win McNamee/Getty Images)

White House Counsel Don McGahn listens to Judge Brett Kavanaugh as he testifies before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill September 27, 2018 in Washington, DC. (Photo: Win McNamee/Getty Images)

A federal judge ruled Monday afternoon that Don McGahn, former White House Counsel for President Donald Trump, must submit to a congressional subpoena and testify before members of the U.S. House of Representatives—a legal defeat for Trump who has tried to prevent the testimony.

In the ruling (pdf), U.S. District Judge Ketanji Brown Jackson, said "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings."

As such, Jackson continued, "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."

According to the Associated Press:

McGahn was a star witness in special counsel Robert Mueller’s investigation, and Democrats wanted to question McGahn about possible obstruction of justice by Trump. That was months before the House started an impeachment inquiry into Trump’s effort to get Ukraine to announce an investigation of former Vice President Joe Biden.

In May of this year, as Common Dreams reported at the time, Trump ordered McGahn not to appear after he was subpoenaed by the House Judiciary Committee.

While ordering that McGahn must appear, Jackson said this does not prevent him from claiming certain legal privileges. However, the judge pushed back against repeated claims by Trump that his administration is immune from congressional oversight or prosecution for alleged misconduct.

"To make the point as plain as possible, it is clear to this Court," Jackson stated, "that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist."

While the White House immediately said it would appeal the ruling, Marge Baker, executive vice president for Policy and Program at the People for the American Way, applauded the court's decision.

"This ruling comes as a timely reinforcement of our constitutional principles of separation of powers and checks and balances, which have been under relentless assault by the Trump administration," Baker said.

"It affirms the common-sense principle that Congress's power to subpoena the executive branch is essential to fulfill its duty of oversight," she added. "This ruling means not only that McGahn must provide testimony, but so must a raft of administration officials who have been stonewalling Congress in attempts to protect this president. Their failure to comply leaves congressional investigators no option but to assume that their testimony, if delivered, would incriminate the president who is ordering them not to testify." 

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