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In a ruling which surprised exactly no one, US District Judge Ketanji Brown Jackson held yesterday that shouting ABSOLUTE IMMUNITY!!!!1!! while giving the finger to Congress does not, in fact or in law, nullify a congressional subpoena. Her Honor was similarly unimpressed with the Justice Department's argument that checks and balances is more of a suggestion than a rule, and thus it is UNLEGAL for the judiciary to decide any issue which touches the president because SEPARATION OF POWERS. In short, Donald Trump is not an absolute monarch, and there's no such thing as absolute immunity when it comes to his advisors, a total vindication of the House's argument to compel former White House Counsel Don McGahn to testify.

"Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings," Judge Jackson wrote in her 120-page ruling.


But don't break out the champagne yet, because the Justice Department has already noticed its appeal and moved to stay. And all these shifty White House grifters want is to delay, delay, delay. They know perfectly well that their argument is unconstitutional horseshit, and have no real expectation of a win at the Supreme Court. Nor do they really want one, since that would ensure that a future Democratic president could blow off congressional oversight the way Trump has. And then how would Trey Gowdy and Jason Chaffetz ever get it up again without ten thousand hours of Fox B-roll over the next Benghazi lie to fap to?

But if Chief Justice John Roberts could do the GOP a solid and put off that decision until after the Democrats have wrapped up the impeachment hearings, that's a big win for the Red Team. Which ... he probably will.

Among the many offensively stupid DOJ arguments, one of the most brazen is that the novelty of the issue is SCIENCE PROOF that The Founders never intended the judiciary to determine the validity of a legislative subpoena on the executive branch. In plain English, they're saying that because previous administrations routinely cooperated with congressional oversight without intervention of the court, ipso facto hocus pocus alley oop there's actually no enforcement mechanism in the law. Which is akin to someone who suddenly puts his children's beds on the roof and forces them to start sleeping rough, then argues no court has ever ordered people to let their kids sleep indoors so roof sleeping must be legal. Just because it never occurred to someone to break the law in quite that way doesn't mean it's legal!

Or, as Judge Jackson put it:

That is, "[t]he fact that past Congresses never resorted to the courts to resolve" to inter-branch disputes concerning the congressional requests for information (Def.'s Mot. at 33) merely means that, unlike the Judiciary Committee of today, they did not have to, because instead of reaching an impasse over the Executive branch's rank refusal to cooperate with congressional investigations, the Executive branch's concerns about the scope and intrusiveness of Congress' requests for information were resolved through "the centuries-old process of political negotiation[.]"

In fact, there is precedent for exactly this set of facts. During the George W. Bush administration, Congress subpoenaed White House Counsel Harriet Miers. US District Judge John Bates held that there was no such thing as blanket immunity for White House advisors and ordered Miers to testify, and, although the case was settled before the appeal was decided, it's still good law. McGahn, like Miers, has the right to invoke executive privilege over certain topics, but he can't just refuse to show up when subpoenaed.

Judge Jackson's opinion is a delightful smackdown, boiling the Justice Department's case down to its Orwellian basis that "All animals are equal but some animals are more equal than others." She also gives short shrift to the Office of Legal Counsel (OLC) memoranda that the White House cooks up to justify its own positions and then pretends are real legal precedent. In an obvious swipe at the OLC memos relied upon to support the DOJ position that a sitting president cannot be indicted, Jackson writes:

[C]ompulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their 118 proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth.

As Orwell might claim if he were writing today, all OLC memos are non-binding on the judiciary, but some OLC memos claiming that Donald Trump gets to make up a fiction of absolute immunity for the entire executive branch are more non-binding than others.

Unfortunately, none of this will go into effect until this stupid case makes its way through the appeals process. And for these assholes, a delay is as good as a win. Sorry, wish it were better news.

[Committee on the Judiciary v. McGahn]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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