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Federal Judge Rejects DOJ’s Argument Over Don McGahn Subpoena in Court


Attorneys for the Department of Justice and House Democrats appeared in federal court on Thursday for oral arguments over a subpoena issued to former White House counsel Don McGahn. The eventual decision could impact impeachment proceedings against President Donald Trump, as it would address whether the White House can regulate testimony of former administration officials who are now private citizens.

Based on early feedback from the judge at the proceedings, it appears that things did not go well for the Trump administration. House counsel filed the lawsuit after the White House claimed “absolute immunity” and McGahn refused to appear despite being issued a subpoena in April. The DOJ made an argument as recently as Wednesday that raised some eyebrows.

According to CNN, U.S. District Judge Ketanji Brown Jackson “expressed disbelief” at DOJ attorney James Burnham’s contention that the White House had the authority to regulate the testimony of former employees subpoenaed by the House of Representatives.

“We don’t live in a world where your status as a former executive branch official somehow shields you or prevents you from giving information,” Judge Jackson said in response to Burnham’s argument. “I see almost everyday people who are former executive branch officials giving information to the media. People are out there talking; people are saying things.”

Burnham reportedly responded by arguing House Democrats only filed the lawsuit to get McGahn to testify about his capacity as an official working for the executive branch, claiming President Trump would be able to assert executive privilege over such content.

Attorneys for House Democrats pointed out that Trump publicly contradicted what McGahn told former special counsel Robert Mueller. They argued that the circumstances required in-person testimony from McGahn regarding the president’s attempts to discredit him. Trump claimed McGahn lied under oath to make himself look like a good lawyer.

Burnham additionally contended that the issue of McGahn’s testimony was not one that should be litigated in court, stating that the House had “political tools” at its disposal. He asserted that “fierce political combat” was a feature of the U.S. Constitution.

An increasingly incredulous Judge Jackson reportedly responded by asking Burnham if such “fierce combat” would include sending the sergeant of arms to arrest Don McGahn.

Reporter Tierney Sneed summed up the White House’s rough day by noting that Judge Jackson made one of the DOJ attorneys reaffirm that he still believed in judicial review, the foundational power of the courts to evaluate the constitutionality of the legislative and executive branches’ actions, as established in 1803.

“A DOJ attorney just had to assure a federal judge that he’s ‘with her’ on Marbury v. Madison, if you’re wondering how things are going for the Trump administration in the McGahn subpoena lawsuit,” Sneed tweeted about the exchange.

[Don McGahn via Saul Loeb-Pool_Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.