Separation of Powers

3 Dec

Judiciary Committee v. Donald McGahn

The Constitution of the United States strictly segregates the power of the federal government and sets its branches in perfect equipoise—i.e., the Legislature, the Executive, and the Judiciary are entirely distinct, completely independent, and unfailingly co-equal.

This article paraphrases the 120-page opinion by United States District Court Judge Kentaji Brown Jackson to illustrate the U.S. Constitution’s separation of powers. You can download the full memorandum opinion free from Legal.com by clicking on the first line:
COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES
Plaintiff,
v.
DONALD F. MCGAHN II,
Defendant.

United States District Court for the District of Columbia
Civ. No. 19-cv-2379 (KBJ)

The Mueller Report handed Congress the question, “Whether any of the conduct described in the Special Counsel’s Report warrants the Committee in taking any further steps under Congress’ Article I powers . . . includ[ing] whether to approve articles of impeachment with respect to the President or any other Administration official.” On March 4th 2019 the Judiciary Committee of the United States House of Representatives opened an investigation into allegations that President Trump and his associates had engaged in “possible malfeasance, abuse of power, corruption, obstruction of justice, or other misconduct on the part of the President or other members of his Administration” during the lead up to the 2016 presidential election and in the years since.

On May 20, 2019, President Donald J. Trump directed former White House Counsel Donald F. McGahn II to decline to appear before the Judiciary Committee in response to a subpoena that the Committee had issued to McGahn in connection with its investigation of Russia’s interference into the 2016 presidential election and the Special Counsel’s findings of fact concerning potential obstruction of justice by the President.

Months of negotiations ensued, which produced no testimony from McGahn, and on August 7, 2019, invoking Article I of the U.S. Constitution, the Judiciary Committee filed the instant lawsuit to “[d]eclare that McGahn’s refusal to appear before the Committee in response to the subpoena issued to him was without legal justification.”

2008 opinion sets precedent

COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES
Plaintiff,
v.
HARRIET MIERS, et al.,
Defendants.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 08-0409 (JDB)
Senior District Judge John. D. Bates

The more things change, the more they stay the same

Referring to Committee on Judiciary, U.S. House of Representatives v. Miers, Judge Kentaji Brown Jackson wrote, “One who doubts that history repeats itself need look back no further than an investigation that the Judiciary Committee conducted in 2007, with respect to the forced resignation of seven United States Attorneys, to prove the point. In that dispute, the Executive branch likewise refused to comply with voluntary requests, and following an authorizing vote, the Judiciary Committee issued a subpoena to Harriet Miers, former White House Counsel to President George W. Bush. The Judiciary Committee’s subpoena required that Miers produce documents and appear before the Committee to give testimony regarding any influence that the White House may have exerted over DOJ’s decision to request the resignations of various United States Attorneys, some of whom were in the process of investigating prominent politicians or had rebuffed requests from Republican officials to undertake certain investigations.”

“The Judiciary remains the ultimate arbiter of an executive privilege claim, since it is the duty of the courts to declare what the law is.”

Miers at 91
See also United States v. Nixon, 418 U.S. at 703-05;
Marbury v. Madison, 5 U.S. (1 Cranch) at 177

In Miers, Judge Bates resolved the parties’ contentions in a detailed, 93-page slip opinion that ultimately denied the Executive branch’s motion and granted the Committee’s motion, thereby requiring Miers to appear and testify. The Miers Memorandum Opinion and Order remain in effect and that case represents the only definitive legal ruling on the question of whether senior-level presidential aides are absolutely immune to compelled congressional process between 2008 and the present.

… what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The Federalist No. 51 (James Madison)

The Framers carefully crafted a constitutional scheme that contained institutional checks over the exercise of the powers they had divided, and thus implicitly endorsed the exercise of authority by the branch that was vested with power to break a legal stalemate. The Court finds it noteworthy that DOJ does not provide a single authority that actually stands for the proposition that the Constitution is violated whenever the federal courts entertain any kind of dispute between the Legislature and the Executive branch.

Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.

The United States of America has a government of laws and not of men. The Constitution and federal law set the boundaries of what is acceptable conduct, and for this reason, as explained above, when there is a dispute between the Legislature and the Executive branch over what the law requires about the circumstances under which government officials must act, the Judiciary has the authority, and the responsibility, to decide the issue.

This result is unavoidable as a matter of basic constitutional law, as the Miers court recognized more than a decade ago. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law.

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