Jackson concluded, “This Court has no doubt that further delay of the Judiciary Committee’s enforcement of its valid subpoena causes grave harm to both the Committee’s investigation and the interests of the public more broadly.”
The judge also knocked down the argument that the House didn’t really need McGahn’s testimony because it really only cares about the Ukraine scandal. “For one thing, it is the Judiciary Committee, and not DOJ, that gets to establish the scope of its own Article I investigation, and the Committee has repeatedly represented that it is, in fact, reviewing the Mueller Report as part of the House’s impeachment inquiry.” She added, “DOJ also does not, and cannot, deny that whatever additional information that the Committee (and the public) might glean from McGahn’s live testimony will be lost if the Judiciary Committee does not have an opportunity to question him prior to any House vote on impeachment.”
Her initial opinion on McGahn’s testimony was blistering, and her opinion on the stay evidences obvious frustration, if not contempt, for the frivolous arguments Trump’s DOJ insists on making. Her opinion is a telling reminder that when facts and the law — rather than bogus talking points for the Fox News audience — matter (as they do in a courtroom), Trump’s defenses crumble.
McGahn still may raise executive privilege when he appears in response to individual questions, but he’s got no excuse now absent a lightning-quick reprieve from the court of appeals. Other witnesses (e.g., John Bolton) holding out for a higher-court ruling on the subject should take note. They should not be able to hide behind a ludicrously weak absolute immunity defense, and their attorneys as officers of the court should shy away from making patently frivolous arguments.
McGahn’s appearance could well affect the scope of the articles of impeachment. Depending on what the court of appeals and/or Supreme Court decide, Jackson’s ruling might unleash a torrent of new evidence and witnesses, both in the Russia/Mueller report case and in the Ukraine matter.
If anyone was “irreparably harmed" here, it was the DOJ’s crumbling credibility on the watch of an attorney general convinced his job is to ignore replete evidence contradicting Trump’s conspiracy theories and make any argument, no matter how lacking in merit, in Trump’s defense.
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