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In a stinging setback to US president Donald Trump, a judge ruled on Monday that former White House counsel Don McGahn must comply with a congressional subpoena as lawmakers pursue an impeachment inquiry, rejecting the administration's assertion of immunity for such officials by declaring "no one is above the law."
US district Judge Ketanji Brown Jackson’s ruling concerns only Mr McGahn’s testimony to a House of Representatives committee. But by rejecting Mr Trump’s key legal argument for defying congressional subpoenas it could give other former and current officials, like his former national security adviser John Bolton, a legal basis for co-operating with the Democratic-led House impeachment inquiry against the Republican president, legal experts said.
In an important case about presidential powers, the judge rejected the Trump administration’s legal claim that current and former senior White House officials cannot be compelled to testify before Congress.
Mr McGahn, who left his post in October 2018, last May defied a subpoena from the House Judiciary Committee to testify about Mr Trump’s efforts to impede the now-completed special counsel investigation into Russian interference in the 2016 US election.
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“Executive branch officials are not absolutely immune from compulsory congressional process - no matter how many times the executive branch has asserted as much over the years - even if the president expressly directs such officials’ noncompliance,” Mr Jackson wrote, adding that “this result is unavoidable as a matter of basic constitutional law.”
The subpoena was issued months before the House opened an impeachment inquiry in September into Mr Trump’s actions concerning Ukraine. The committee sued Mr McGahn in August to try to enforce the subpoena.
The judge also wrote that “compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law.”
The judge said she was not addressing the separate issue of whether Mr McGahn could withhold information by citing executive privilege, which is intended to keep confidential the nature of discussions between a president and close aides.
The Trump administration has refused to co-operate with the impeachment inquiry as well as other Democratic-led investigations and has directed current and former officials to defy subpoenas for documents and testimony. There are other legal fights over subpoenas seeking Trump tax and financial records.
“We will appeal,” a justice department spokeswoman said by email.
“Don McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal,” said William Burck, a lawyer for Mr McGahn, in a statement.
Pivotal figure
Mr McGahn emerged as a pivotal figure in the 448-page report completed in March by former special counsel Robert Mueller that detailed Russian interference in the 2016 election, through a campaign of hacking and propaganda, as well as extensive contacts between Mr Trump's campaign and Moscow.
Mr Mueller’s report, released in redacted form in April, revealed about 10 instances in which Mr Trump took actions aimed at impeding the investigation. Mueller did not exonerate Trump of obstruction of justice, though attorney general William Barr, a Trump appointee, afterward decided that the president had not committed obstruction.
When the committee sued Mr McGahn in August, it said it needed to speak with him to help lawmakers decide whether to include Mr Trump’s actions toward the Mueller investigation as part of an impeachment inquiry.
According to the Mueller report, Mr McGahn told Mr Mueller’s team that Mr Trump repeatedly instructed him to have the special counsel removed and then asked him to deny having been so instructed when word of the action emerged in news reports. Mr McGahn did not carry out either instruction.
Mr McGahn’s relationship with Mr Trump was strained by events of the Mueller investigation. Mr Trump replaced him with Pat Cipollone, who still holds the job.–Reuters