Trump impeachment: Judge’s ruling may mean John Bolton and Mick Mulvaney have to testify – USA TODAY

Chris Truax, Opinion contributor Published 10:14 a.m. ET Nov. 26, 2019 | Updated 11:48 a.m. ET Nov. 26, 2019

Impeaching a U.S. president might not be the be-all-end-allfor their career. We explain why this is the case. Just the FAQs, USA TODAY

Chairman Adam Schiff recently announced that the House Intelligence Committee would wrap up impeachment proceedings. He might want to rethink that now.

A ruling in Don McGahns lawsuit could not have come at a worse time for the Trump administration.

Back in April, McGahn, a former White House counsel who resigned in October of 2018, was issued a subpoena by the House Judiciary Committee who wanted him to testify about President Donald Trumps efforts to get him to fire Special Counsel Robert Mueller. President Trump, claiming an absolute privilege to prevent his current and former subordinates from testifying, ordered McGahn to ignore the subpoena. McGahn, finding himself in a constitutional no-mans land between an executive branch claim of privilege and a legislative branch subpoena, opted to let the courts sort out the competing claims.

On Monday, a federal district court did just that, categorically rejecting President Trumps claims and finding that McGahn had a duty to comply with the Judiciary committees subpoena and to appear before Congress to testify. [T]he President does not have (and, thus, cannot lawfully assert) the power to prevent his current and former senior-level aides from responding to congressional subpoenas.

The court observed that the duty to appear and offer testimony was completely separate from whether a witness could use an appropriate assertion of executive privilege or some other privilege to avoid answering a particular question. White House aides can withhold the kinds of confidential and privileged information that distinguishes them from everybody else; they can do so by asserting an appropriate privilege if needed, when legislators ask questions that probe too deeply."

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In this Sept. 4, 2018 file photo, White House counsel Don McGahn, listens as he attends a confirmation hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Capitol Hill in Washington.(Photo: Jacquelyn Martin, AP)

Now it gets interesting. There is no wiggle-room in Judge Jacksons decision. On the question of an administration officials duty to comply with a subpoena, it is as clear as it is possible to be. This is immensely consequential for John Bolton, Rudy Giuliani, Mick Mulvaney and a host of others. While this case will almost certainly be appealed, there is no certainty that either Judge Jackson or the Court of Appeals will issue a stay of the order requiring McGahn to testify. In fact, there are good reasons why a court wouldnt do so in this case. McGahn has already said he will respect Judge Jacksons order and appear to testify if a stay isnt issued.

To make matters worse or better Judge Jacksons discussion of executive privilege is in the context of a normal legislative subpoena. Thats because this case began on August 7th, long before the House opened a formal impeachment proceeding.

While this has never been directly tested by a court, most legal scholars agree that there is no such thing as executive privilege in the context of an impeachment proceeding. When the House is investigating what it believes is impeachable conduct, the president cannot simply refuse to provide information that it doesnt want Congress to have. For obvious reasons, it cant be left up to the target of an investigation to decide what information the investigators are allowed to see. As Judge Jackson observed, [T]he primary takeaway from the past 250 years of recorded American history is that presidents are not kings. Indeed they are not. They are subject to the laws and to congressional oversight just like everybody else.

In other words, not only are all of the presidents aides legally required to testify before Congress, since this is now an impeachment inquiry, they will not be able to refuse to answer questions based on executive privilege. They most certainly will not be allowed to refuse to answer questions based on the lazy version that has become so popular over the last few years even without an express claim of privilege by the White House. I cant disclose my personal conversations with the president. Its those personal conversations that are now at the very heart of the impeachment inquiry.

So Judge Jacksons opinion opens up whole new vistas of inquiry from what were previously unobtainable witnesses. No doubt many of them will refuse to testify no matter what. But some of them, like Don McGahn himself, may well decide to come in from the cold. Chairman Adam Schiff recently announced that the House Intelligence Committee would be wrapping up its part of the proceedings shortly after returning from the Thanksgiving recess. He might want to rethink that now.

Chris Truax, an appellate lawyer in San Diego, is an adviser to Republicans for the Rule of Law and amember of USA TODAY's Board of Contributors.

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Trump impeachment: Judge's ruling may mean John Bolton and Mick Mulvaney have to testify - USA TODAY