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“However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires,” Judge Ketanji Brown Jackson wrote in her opinion, adding: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
That ruling is in the process of being appealed and could well end up before the Supreme Court. But in affirming the findings of lower courts, what Jackson did is send a clear signal that executive privilege cannot be claimed overly broadly to keep aides and former aides to speak about potential wrongdoing that they either witnessed or were a part of.
It’s in keeping with the argument put forward over the weekend by House Intelligence Committee Chairman Adam Schiff (California) regarding decisions by McGahn as well as acting White House chief of staff Mick Mulvaney and Trump personal attorney Rudy Giuliani to resist House subpoenas to testify on Ukraine.
While Trump allies insist that this fight is far from finished — and they’re right — it’s important to understand the psychological (not to mention the legal) impact of this decision on those members of the Trump administration who have continued to refuse to testify.
Giuliani and Mulvaney could possibly hang their hats on the idea that Trump’s broad claim of executive privilege could well apply to them as active employees in a way that courts have ruled it doesn’t apply to McGahn. Maybe! But that line of reasoning took a hit on Monday — and will force anyone with an outstanding subpoena from Congress to reconsider their position at least somewhat in the coming days.
One other ripple from the McGahn decision is this: Schiff now faces a tougher choice in whether to wait out some of these bigger-fish witnesses or move the impeachment process to the Judiciary Committee for the presumed writing of articles of impeachment against Trump.
“Yes, we’d love to have these witnesses come in, but we’re not willing to simply allow them to wait us out to stall this proceeding, when the facts are already overwhelming,” Schiff told Tapper on Sunday. “We’re going to continue our investigation. We are going to continue to pursue the documents.”
Monday’s ruling seemingly speeds up the timeline on the so-called “stalling” considerably. If McGahn is compelled to testify, there’s a precedent that would make it very difficult for Bolton to avoid testifying. And if McGahn and Bolton testify, suddenly the possibility of Mulvaney or even Giuliani testifying seems a whole lot more real.
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