They say bad facts make bad law. But here is a case of bad law making bad facts.
The United States Court of Appeals for the D.C. Circuit, in a rare ruling by the full court, held 7-2 Friday that former Trump White House counsel Don McGahn must honor a House subpoena issued in connection with the Judiciary Committee’s impeachment inquiry.
Nevertheless, this does not decide the issue that is actually important: What questions must McGahn answer?
Some readers may recall that I flagged this issue last November. That’s when an Obama-appointed D.C. district court judge, Ketjani Brown Jackson, issued a tendentious, occasionally incoherent 120-page decision holding that McGahn must honor the subpoena issued by the Judiciary Committee chaired by Jerry Nadler, D-N.Y., the Trump-impeachment crusader.
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Obviously, the committee wants to question McGahn about some of the episodes outlined in Volume II of the Mueller Report, which outlines the prosecutors’ obstruction investigation.
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For all the overwrought media coverage about how Judge Jackson had ordered that McGahn “must testify to Congress,” her opinion actually held only that McGahn must physically show up in the Capitol Hill hearing room — he couldn’t just blow off the subpoena.
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But McGahn was one of the president’s top advisers, the counsel who provided him with legal guidance; consequently, demands that he testify raised profound executive privilege and attorney-client privilege issues. In the litigation the parties sidestepped this essential aspect of the case, and Judge Jackson did not decide it.
The Trump Justice Department, like the Obama Justice Department before it (when fending off a House investigation of the Fast and Furious scandal), took the position that the court should stay out of this dispute between the political branches. The Constitution gives those branches, particularly Congress, their own arsenals for battling over access to executive information.
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