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Judge Delivers Blow To White House: McGahn Must Testify


What follows is a quote from a federal court ruling - "The primary takeaway from the past 250 years of recorded American history is that presidents are not kings."

A judge directed those scathing words at the current president of the United States. She was striking down a White House effort to keep officials from testifying before Congress. The White House in this specific case sought to block a congressional subpoena directed at Don McGahn, who is the former White House counsel. The ruling is a big deal since the president has kept a lot of current and former officials from testifying, including several witnesses in the impeachment inquiry. So how far-reaching could this ruling be?

On the line from Nashville is Jonathan Shaub, who served as attorney - an attorney at the Office of Legal Counsel from 2014 to 2017. That's a part of the Justice Department that has a lot to say about that issue. He is now Tennessee's assistant solicitor general. Welcome back to the program.

JONATHAN SHAUB: Thanks for having me.

INSKEEP: What, according to the judge anyway, did the White House get wrong?

SHAUB: Well, the White House, the view - and it's his long-standing one - is that close presidential advisers are absolutely immune from having to testify before Congress. And the judge essentially said, no, this is a government with three branches that are coequal, and when Congress issues a subpoena, that is binding on even the - an executive branch official who is close to the president. They have to show up - and so sort of rejected the idea that the president has the last word about whether a senior adviser will testify or not.

INSKEEP: I think people will have probably heard - some people, anyway - the phrase executive privilege. That was the claim the White House made. What does it mean, and is it real at all?

SHAUB: So it's important to distinguish here because the precise claim issue in the case is this immunity of the senior adviser, and the judge actually said McGahn can come and appear and assert privilege, but he has to appear. And the White House was saying he doesn't have to appear at all. And so he still would actually have the opportunity to appear and to say this is privilege, which means it's the information that the president has determined, you know, shouldn't be disclosed - sensitive information that the president...

INSKEEP: Oh, OK. So essentially, the White House was saying, we can blow off this entire thing. And the judge said, no, you've got to show up and negotiate this, work this out question by question, and we'll see what you're allowed to say and what you're not allowed to say.

SHAUB: Right.

INSKEEP: The Office of Legal Counsel, for which you once worked, had a very different view of this, a much more sweeping view of presidential power. What did the judge have to say about the Office of Legal Counsel?

SHAUB: Well, she didn't mince words. She said the - well, see - his long-held view that presidential aides have absolute immunity is neither precedential nor persuasive and basically said the Office of Legal Counsel has kind of been repeating itself for many years, but that didn't make it the law. And so she went back to the beginning and essentially rejected the whole concept of immunity and the idea that there should be some people that Congress can't compel to testify and said, no, they all got to show up.

INSKEEP: Is this an example of the old maxim that where you stand is determined by where you sit? You have people who are inside the executive branch, and they naturally - no matter how professional they try to be, they naturally end up with an expansive view of presidential power.

SHAUB: I think it is. I think it's an example of the executive branch having a doctrine and getting sort of broader and broader and broader and never went before the courts. And now that it has, the court is pushing back and saying, no, that's too extreme.

INSKEEP: And it's really interesting; a lot of presidents and Congresses have avoided too many court rulings on this very question because I think both sides are a little afraid of what they might find - have an adverse ruling that would bind future presidents or bind future Congresses.

But in this case, Congress really wanted to hear from McGahn. He was White House counsel until a year or so ago. He was in the president's inner circle. He was part of the president's resistance or alleged obstruction of the Robert Mueller probe involving Russian interference in the 2016 election. That's why they want to talk to him. And now they're going to have an argument, it sounds like, before Congress about how much he can say. But then the bigger question...

SHAUB: Well, I...

INSKEEP: Oh, go on. Go on.

SHAUB: Just the - firstly, that he will have an opportunity to appeal and try to stay the decision. So he may not actually have to appear if he continues the appellate process.

INSKEEP: Oh, good point. We may yet not be there. But then the bigger question is, what does this mean for witnesses in the impeachment inquiry that centers on Ukraine? Because there's a whole constellation of current and former officials who've been told by the White House not to show up.

SHAUB: Well, this opinion pretty clearly rejects those claims of immunity as well. It's not as narrow as it could be. It says this immunity doctrine would not apply, even if it's national security involved, such as, you know, Bolton or Kupperman are dealing with. So it really rejects the legal basis on which many of them have to date refused to testify. It still can be tested on appeal, of course. So they don't have to comply immediately, but it definitely impacts their legal argument.

INSKEEP: If one of those potential witnesses in the impeachment inquiry called you up for a little legal advice today, what might you tell them?

SHAUB: Well, you know, I don't think it's clear - and that's what they're saying that they have to do since they've got these directions from both sides. But this opinion could provide them cover if they were inclined to testify. They could say, this opinion's been issued, and I'm going to follow it and come and comply with the subpoena.

INSKEEP: Oh, so if you're John Bolton, say, the former national security adviser, you could say, this is enough, or you can say, no, I want to hear my own court case first.

SHAUB: Right. Yeah, he basically can choose which way to do it.

INSKEEP: Mr. Shaub, thanks very much for your insights, really appreciate it.

SHAUB: Thanks for having me.

INSKEEP: Jonathan Schaub served as an attorney at the Office of Legal Counsel in the U.S. Justice Department and is now the Tennessee assistant solicitor general. Transcript provided by NPR, Copyright NPR.