Judge Ketanji Brown Jackson said the president "does not have the power" to excuse McGahn or any other current and former White House officials from testifying. The Justice Department is expected to appeal the decision by U.S. District Judge Ketanji Brown Jackson on the grounds that McGhan is shielded by the same executive privilege that protects Trump from testifying. : Federal District Court Judge Ketanji Brown Jackson said McGahn must appear before Congress but retains the ability to “invoke executive privilege where appropriate” during his appearance. “All the executive has to do is maintain the status quo and he prevails.”The Supreme Court cases concern requests for information from private firms. But Jackson called “absolute testimonial immunity” for senior-level aides “baseless” and a “fiction” from the White House legal counsel.“Now that the court has ruled, I expect him to follow his legal obligations and promptly appear before the committee,” Nadler said of McGahn.Jackson recognized that McGahn, as a White House counsel, had routine “unfettered access” to the president but said the Justice Department failed to prove how “daily contact with copious amounts of information” including materials classified for national security warrants absolute testimonial immunity.The probe receded behind Congress looking into whether Trump pressured Ukraine to investigate his political rival Joe Biden.
Updated on Friday at 12:26 p.m.
Acting White House Chief of Staff Mick Mulvaney sought to join the case but has since reversed course and said he will “rely on the direction of the president” to not testify.The Barack Obama appointee was also alarmed by the Justice Department claim that Trump may hold the authority to block current and past aides “for the remainder of their natural life” from speaking openly about their time in the White House.In a footnote, Jackson compares a country in which Trump makes “unilateral determinations” on who will testify to Congress to the world created by George Orwell in “Animal Farm,” including the line from the acclaimed work of fiction “All animals are equal but some animals are more equal than others.”House Democrats withdrew Kupperman’s subpoena on Nov. 6, saying “unless your lawsuit was admittedly only for the purposes of delay” he would by guided by the decision in McGahn’s case.House Judiciary Chair Jerry Nadler said in a statement on the ruling that he is pleased the court recognized the Trump administration has “no legal ground” to bar “critical” witness testimony.His lawyer Charles Cooper told lawmakers in a letter earlier this month that Bolton “was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies thus far.”Cooper did not respond Monday to a request for comment on the McGahn ruling. Ketanji Brown Jackson (born September 1970) is a United States District Judge of the United States District Court for the District of Columbia.In 2016, she was interviewed as one of Barack Obama's potential nominees for the U.S. Supreme Court vacancy created by the death of Justice Antonin Scalia. But they cannot, by order of the president, defy a subpoena to appear before Congress to testify.“Here, unlike McGahn, information concerning national security and foreign affairs is at the heart of the the [sic] Committees’ impeachment inquiry, and it is difficult to imagine any question that the Committees might put to Dr. Kupperman that would not implicate these sensitive areas…The same is true, of course, of Ambassador Bolton,” Copper wrote.McGahn, if he chooses to comply with the federal judge’s order Monday, is expected to provide key insight into efforts by Trump to fire former FBI Director James Comey and oust Mueller.Presidential aides, the judge added, have a legal obligation to respond to a subpoena to testify no matter how “busy or essential” they may be or “their proximity to sensitive domestic and national-security projects.”One of the legal battles over House subpoenas involves Bolton’s deputy Charles Kupperman, also represented by Cooper. But in his Nov. 8 letter to the House committee chairs steering the impeachment inquiry, the attorney said the decision would not automatically clear the way for testimony from his clients, both longtime Republican advisers with an inside look into White House dealings with Ukraine that are central to the probe.Closing out the letter by telling lawmakers that Kupperman “stands ready” to testify, as does Bolton, Cooper said the committee was mistaken to think his client sought to delay or obstruct “the Committees’ vital investigatory work” and hoped the House would allow the judicial branch to settle the dispute.
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