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McGahn Ruling Changes Nothing

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McGahn Ruling Changes Nothing

McGahn Ruling Changes Nothing
December 02
14:16 2019

U.S. District Court Judge Ketanji Brown Jackson finally offered up her ruling as to whether White House Counsel Donald McGahn would have to appear at committee hearings in response to any subpoenas issued by Congress.

The essential question is whether a President can exert a broad blanket Executive Privilege in response to subpoenas from Congress – President Trump’s position – or is Executive Privilege limited – Congress’ position.  Though sensationalized by Democrats and the media as a huge defeat for Trump, this decision is neither unprecedented nor unexpected.  Most legal scholars predicted this outcome.

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To hear the initial analysis of Judge Jackson’s opinion by all those talking heads on CNN and MSNBC, we should soon be seeing a string of White House officials being interrogated by Congress any day now.  According to those reports, Jackson’s decision has opened the door for White House Chief-of-State Mick Mulvaney, Trump attorney Rudy Giuliani and former National Security Advisor John Bolton to be forced to testify at any number of hearings being simultaneously conducted by congressional Democrats.

However, if you are inclined to be a knee-jerk Trump hater, you are likely to be in for yet another disappointment. I am afraid that your news outlets of choice are misleading you … again.  Perhaps the reporters and those panels of parroting pundits did not read the entire 200-page decision, or they just wanted to spin the story to better fit their preconceived anti-Trump narrative. ( I am betting on the latter.)

While Judge Jackson did say that McGahn must respond to the congressional subpoena and APPEAR before any committee that subpoenas him, she also said that he can refuse to answer any question based on Executive Privilege as exerted by the White House.  It is the White House – not McGahn – that exerts the Privilege, so you can expect to see a White House lawyer sitting next to McGahn flagging off questions if and when he actually appears – and even if he does, it may be in the far distant future.

This decision is already under appeal.  It will go up to the Federal Circuit (Appellate) Court – and possibly to the Supreme Court.  That COULD put off any appearance well into 2020 – and even then, the limited definition of Executive Privilege preserved in the Judge Jackson decision would probably prevent any dramatic revelations.

We have seen this movie before.  You will recall that when Corey Lewandowski appeared before the House Judiciary Committee, he refused to answer a number of questions based on Executive Privilege.  Democrats came off with a lot of egg on their mugs.

I emphasized “could” put off an appearance, since it all depends if the decision will be “stayed” (not enforced) as the appeal process goes forward.  But even if McGahn does appear more expeditiously, he may still avoid answering questions based on even limited Executive Privilege.

The pretend barristers of the Fourth Estate have stated that Congress will prevail because of a “precedent setting case” in which Harriet Miers was forced to appear by a Federal District judge.  That case never was upheld by an Appellate Court – and under the rules, is therefore NOT a precedent.    I fear that our friends in the media are again propagating false information.

It is very possible that Trump’s opinion of Executive Privilege is a stretch too far – and will be trimmed back by the Supreme Court.  However, it is virtually assured that the Court will recognize some level of Privilege.  There is no impeachable abuse of power for a President who attempts to test or extend presidential powers – and to let the Supreme Court make the determination.

No one is violating the Constitution.  It is how the Constitution works.  Obama tried to make “recess appointments” when the Senate was merely off on the Christmas holidays.  The Supreme Court declared it an abuse of presidential power – and that was that.  The high Court expected to decide soon as to whether Obama had misused his powers when he gave Dreamers an extended stay in America.

If Democrats want to see a Senate trial before the next Autumnal Equinox, they will have to abandon all hope of getting a lot more information from those who have not testified.  The cement is starting to set on impeachment.

So, there ‘tis.

About Author

Larry Horist

Larry Horist

Larry Horist is a conservative activist with an extensive background in economics, public policy and politics. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, as well as the White House. He has testified as an expert witness before legislative bodies, including the U. S. Congress, and lectured at major colleges and universities. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at lph@thomasandjoyce.com.

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