The Nadler imperative

District of Columbia United States District Court Judge Ketanji Brown Jackson has upheld the subpoena issued by the House Judiciary Committee to former White House counsel Don McGahn in the nattering Nadler spinoff of the Mueller probe. Although obviously relevant to current issues in the Schiff show, the opinion already feels something like a walk down memory lane. The Dems nevertheless won’t let their dream of impeachment die.

Judge Jackson upheld the House Judiciary Committee subpoena yesterday in one of those interminable judicial lectures to which we have become accustomed in the age of Trump. She rejected the claim of absolute testimonial immunity asserted by the Department of Justice on behalf of McGahn (based on an opinion of the Department of Justice Office of Legal Counsel). I have embedded Judge Jackson’s magnum opus below, via the FOX News story on the opinion.

The ruling is subject to appeal, although it requires a stay in order to avoid immediate enforceability. Moreover, McGahn remains free to assert executive privilege in response to specific questions. The doctrine of executive privilege remains undisputed in the litigation.

Judge Jackson’s opinion relies in part on the federal district court decision Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). The District of Columbia Court of Appeals owes the Miers case no deference. It is the job of the Court of Appeals to review such rulings de novo. Indeed, the Department of Justice argued before Judge Jackson that Miers was wrongly decided. Judge Jackson also cites Court of Appeals and Supreme Court case law that setting forth constitutional jurisprudence that bears on the issue, she says, “in many respects” — i.e., in some respects.

McGahn ordered to testify by Fox News on Scribd