You may have read that a judge has ordered that Don McGahn, the former White House counsel, must testify in response to a Congressional subpoena. What you probably didn’t read in the impeachment press is that the sweeping ruling essentially eliminates a right to confidentiality between a President and his most senior advisers.
“The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” wrote Judge Ketanji Brown Jackson in a ruling late Monday that was hailed far and wide as a victory over President Trump’s claim that close advisers have immunity from testifying.
The judge doesn’t stop there. She embraces a doctrine of Congressional supremacy that essentially says that even the President’s closest advisers must appear on Capitol Hill more or less on command. “With respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist,” Judge Jackson writes.
These aides may be able to withhold some “confidential, classified, or privileged information” in the national interest. But that doesn’t protect advisers like the general counsel from appearing on Capitol Hill, under penalty of contempt, to respond to the priorities of the current Congressional majority.
You don’t have to be a constitutional scholar to see the risks here. If advisers can be forced to appear before partisan opponents on demand, White House discussions are likely to become more circumspect. Presidents are likely to get less honest advice, and advisers will get less candid insight into a President’s views.
Judge Jackson’s 118-page opinion blows past these concerns and dismisses long-time Office of Legal Counsel (OLC) memos on adviser immunity as mere “aspirational assertions” about presidential power. This includes William Rehnquist’s 1971 OLC memo that has been relied on by Presidents of both parties.
Judge Jackson relies instead almost entirely on a 2008 ruling known as Miers by another federal district judge that she claims as a definitive precedent. But such a lower-court ruling cannot be a binding precedent. In any case it was never enforced, and its logic was never tested on appeal because the executive and Congress settled the dispute after President George W. Bush left office.
The Trump Administration says it will appeal, and we hope this goes to the Supreme Court. The Constitution’s separation of powers assumes co-equal branches that would each vigorously defend its own interests. It does not imagine that Presidents or their aides are vassals of Congress. The doctrines of executive privilege and adviser immunity were developed to protect Presidents from the encroachments of Congress. That immunity has its limits, but it can’t be that it “does not exist.” The risks here are to all future Presidents, not merely to the current unpopular one.