President Donald Trump has no right to prevent Congress from obtaining the testimony of White House Counsel Don McGahn through a subpoena as the House pursues impeachment, according to a new legal filing made by twenty former Republican lawmakers, government officials, and legal experts.
The filing, as Politico reported, argues on an originalist and conservative basis that the president does not have the authority to unilaterally undermine congressional oversight. This position is in tension, somewhat, with Attorney General Bill Barr’s conservative legal view and disposition which favors expansive presidential powers and discretion — at least when a Republican is in the White House.
The argument takes the form of an amicus brief, which is filed by parties who are not subjects of the dispute but want to offer an opinion on the case. It was organized by Protect Democracy, a group that sprang up in response to Trump’s presidency.
“[The] broad immunity claims asserted in this case by the Executive Branch, if accepted, would severely disrupt the Constitution’s careful balance between that branch and Congress,” the filing said. “[The] existing executive privilege rules amply protect any Executive Branch confidentiality interests, obviating the need for absolute immunity for presidential advisors—let alone for former advisors. And in impeachment inquiries in particular, our constitutional system requires that Congress have access to key testimony and materials.”
Trump’s claim that he has absolute immunity to withhold documents and testimony from Congress, and that this immunity extends to his aides, “lack any Founding-era historical support, particularly in the context of impeachment,” it continued.
Though McGahn’s testimony is not directly related to the conduct for which Trump is being impeached, Democrats have said that it could be relevant as a part of their broader impeachment inquiry. He was a key witness to central events described in the Mueller report, including a particularly egregious instance of likely obstruction of justice.
But though Congress has subpoenaed him to testify, McGahn has so far refused and said he would like the courts to decide whether he has a legal obligation to comply.
George Conway, the husband to White House counselor Kellyanne Conway, is one of the notable figures who joined the filing. It also includes former Rep. Reid Ribble (R-WI), former Sen. Gordon Humphrey (R-NH), former Rep. Mickey Edwards (R-OK,) and former Rep. Jim Leach (R-IA).
Find the full list of signers below:
Steve Bartlett, Jack Buechner, Tom Coleman, George T. Conway III, Mickey Edwards, Stuart M. Gerson, Gordon J. Humphrey, Bob Inglis, James Kolbe, Steven T. Kuykendall, Jim Leach, Mike Parker, Thomas E. Petri, Trevor Potter, Reid J. Ribble, Jonathan C. Rose, Paul Rosenzweig, Peter Smith, J.W. Verret, and Dick Zimmer.
