Today, 20 Republican legal experts, former government officials, and former members of Congress filed a friend of the court brief explaining that the president and his aides cannot declare themselves immune from congressional oversight. The brief, which was filed in the House Judiciary Committee’s lawsuit against former White House Counsel Don McGahn, shows that the Founders understood and intended that Congress has the authority to subpoena the president and his aides, and that the president and his aides must comply. The Founding-era examples described in the brief demonstrate that there is no basis to this administration’s claim that the president and his aides are absolutely immune from having to appear before, or produce documents to, Congress. The signatories are represented by the nonpartisan nonprofit Protect Democracy. The brief is available here.
Reid Ribble, former U.S. Representative for Wisconsin, said, “Placing the president and his aides above the law would be truly un-American. Early U.S. Congresses and courts subpoenaed presidents, and the presidents complied with those subpoenas. That should remain the case today.”
“A fundamental element of our constitution – one that has kept us a free people for more than two centuries – is its separation of powers with three co-equal branches, each able to check the excesses of the others. The power of Congress to subpoena and receive information from the president or his agents in an impeachment investigation was well understood by the Framers and deeply embedded in our legal tradition,” added Stuart Gerson, former Acting U.S. Attorney General.
The House Judiciary Committee filed its lawsuit in August to enforce a subpoena against McGahn, who refused to testify in the House’s impeachment proceedings. The Trump administration argued in court that McGahn, as a former aide to Trump, had “absolute immunity” from appearing. Last month, a judge ruled that even senior presidential aides must comply with congressional subpoenas, writing that “Presidents are not kings” and White House officials owe their allegiance to the Constitution, not the president. The Department of Justice (DOJ), representing McGahn, appealed that decision. This case is one of several in which the Trump administration has argued that the president and his close advisors cannot be compelled to provide information to Congress, even in investigations of possible executive wrongdoing. The issue could escalate to the U.S. Supreme Court next year.
The authors of the brief cite historical practice to show that the Founders would have disagreed with the administration’s claims of immunity. “During the early republic,” they write, “Congresses and presidents recognized that Congress had nearly untrammeled authority to request documents and testimony to support impeachment proceedings. Otherwise, as John Quincy Adams noted, it would make a ‘mockery’ of the Constitution’s impeachment power for Congress to have the power to impeach but ‘not the power to obtain the evidence and proofs on which their impeachment was based.’”
“The Founders’ wisdom should guide us here,” said Cameron Kistler, Counsel for Protect Democracy. “President Trump is not a king, and his aides are required to comply with subpoenas just like anyone else in America.”
The signatories are (in alphabetical order): Steve Bartlett, Jack Buechner, Tom Coleman, George T. Conway III, Mickey Edwards, Stuart M. Gerson, Gordon J. Humphrey, Bob Inglis, James Kolbe, Steven T. Kuykendall, Jim Leach, Mike Parker, Thomas E. Petri, Trevor Potter, Reid J. Ribble, Jonathan C. Rose, Paul Rosenzweig, Peter Smith, J.W. Verret, and Dick Zimmer.
The brief is available here.