McGahn wants to be able to travel in respectable society, or at least Washington, after this. Whatever gets him there, he’ll do. I think he’s looking for plausible deniability one way or the other. He just doesn’t have the stones to make his own decisions and wants other people to do it for him.
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and so is Tierney
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It seems to me this could be avoided if McGahn had even a tenth of the honor and integrity career civil servants are demonstrating. I don’t believe there is anything preventing him from testifying, other than that wingnut welfare he’s banking on.
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We’ll see where this goes, but Burnham, arguing for DOJ, is not making a lot of head-way right now.
Unsurprising, because the judge is not an idiot.
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I had a law professor who repeatedly admonished us to be “the most reasonable advocate in the room.” Sounds like Attorney Barbero is doing that and DOJ is trying to toe that “unlimited power” line like Messer Cippolone has been lately. Judges don’t often cotton to that kind of radicalism.
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Judge Jackson appears to be pushing back, sometimes forcefully, on aspects of his argument.
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If Burnham isn’t careful, he’s going to force the judge to endorse Congress’s power to arrest and imprison people for non-compliance.
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In this case the wingnut welfare extends well beyond McGahn individually:
“The Republican National Committee last month paid $2 million to a law firm that employs the former White House counsel Donald McGahn and serves as the Trump campaign’s main legal firm . . . Jones Day is the main legal firm for the Trump campaign, which has paid the firm $5.6 million between January 2017 and March 2019 for legal consulting.” - WaPo, May 21, 2019
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This argument illuminates the basic stance of the WH under its present leader: The Executive is supreme. No one may investigate, criticize, punish or resist it. That includes the courts and Congress. Period.
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In the old days the name partners were several and the work was slightly more honorable.
Times have changed.
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“The Department, which is representing McGahn, claims that because he served as a close advisor to the President, he is protected by an “absolute” immunity that prevents the House from enforcing the subpoena.”
Wow. Even the NAZI architects of the Holocaust tried at Nuremburg never thought of that one. I mean they did claim they were just following orders but they never said they had immunity because they worked for HItler.
As a disclaimer, I am not trying to compare this to the holocaust or undercut the deadly serious nature of latter - but I am just appalled at these absurd and specious defenses.
The separations and checks and balances in the Constitution specifically give the Federal Court system jurisdiction over disputes between Congress and the executive branch.
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“When Burnham argued that the House was seeking testimony about his work for the executive branch, he prompted skepticism from the judge as well, who wondered if such an argument [for absolute immunity]“sweeps so broadly” that it would prevent an ex-official from going on TV to discuss his time in the administration.”
Burnham replied: “Oh no, Judge. Of course not. Going on TV or the radio or a right-wing podcast and telling the partial truth or outright lies or whatever would be perfectly fine. We just don’t want anyone testifying to Congress or the courts under oath, where … you know, they might feel compelled to tell the truth.”
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If Judge Jackson weren’t so … judicious, she might be telling Jim Burnham to go back to law school.
She doesn’t actually need to say it, of course, because even Burnham knows his position is nuts.
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OT: Wonder if Trump can continue to give money and support to ‘jurors’ (Republican Senators) after he is ‘indicted’ (impeached).
This is a bribe.
Richard W. Painter
Any other American who offered cash to the jury before a trial would go to prison for felony bribery.
But he can get away with it?
Criminal.
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So, if SCOTUS ultimately rules that the courts can’t get involved in a dispute between Congress and the POTUS, does that mean that they won’t get involved when an officer of the House grabs McGahn and beats him silly?
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the jurisdictional arguments are basically pro-forma. I’m surprised the judge even mentioned them.
What was far more significant to my ear was this part…
“The House is suing Don McGahn!” Brown Jackson said, later adding, “I don’t understand what you mean that the House is suing the executive branch.”
I’m pretty sure that the judge is going to let the case continue, and may even rule in favor of summary judgement for the House based on McGahn’s “private citizen” status. This is not a dispute between the executive branch and the House, its a private citizen denying a House subpoena.
And this is what I’ve been saying about the Kupperman case as well – that the House should be arguing that a President has no power to stop Kupperman (or McGahn) from showing up to respond to a subpoena.
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Holee crap!!
Bribe? Feh! Normal behavior for trump would be throw money at the problem to make it go away. Only in this situation that will not work real well.
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I’m surprised the Repus didn’t demand that Ketanji Brown recuse herself because she is a black person and McGahn and Trumpo and his band of sicko-phants are white.
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Not yet, anyway.
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I am troubled by the slow pace of judicial proceedings.
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