Trump's assertion of "absolute immunity" is not supported by the U.S. Constitution or any judicial opinion or federal statute. It reflects only the opinion of the Department of Justice's Office of Legal Counsel (OLC), which is itself a part of the executive branch. Since the 1970s, the OLC has taken the position that "the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee."
"Absolute immunity," as defined by the OLC, is broader than executive privilege. Absolute immunity would relieve a witness from testifying at all. Executive privilege, on the other hand, prevents witnesses from answering specific questions relating to confidential communications. Trump has not invoked executive privilege regarding McGahn's testimony.
The only court to address absolute immunity rejected it. The issue arose in the 2008 case of Committee on the Judiciary v. Miers, which was brought by the House Judiciary Committee against President George W. Bush's former White House counsel Harriet Miers for defying a subpoena to testify about the termination of nine U.S. attorneys. The federal district court decided in favor of the House Judiciary Committee, stating, "Clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process." (The court in that case left open the possibility that it might reach a different result if national security or foreign affairs were at issue.) Nevertheless, the Miers case has no precedential value since it was settled before an appellate court could rule on the issue.
Damaging Testimony Despite Presidential BanThose who have already testified, notwithstanding Trump's order to defy subpoenas, have given damning testimony against him. Here are summaries of some testimonies already provided by key witnesses:
Lt. Col. Alexander Vindman, top Ukraine expert on the National Security Council, listened in on the July 25 call. He then twice complained to John Eisenberg, deputy White House counsel for national security affairs, expressing his alarm at Trump's attempt to get Zelensky to sully his political opponents.
William Taylor, acting ambassador to Ukraine, testified it was his "clear understanding" that U.S. aid would be withheld until Ukraine began to investigate Joe Biden.
Gordon Sondland, U.S. ambassador to the European Union, initially said he "never" thought there were preconditions on the assistance to Ukraine, but later contradicted his former testimony.
Kurt Volker, former State Department envoy to Ukraine, testified that he wasn't aware of a quid pro quo but said that Trump's personal lawyer, Rudy Giuliani, pressured Ukrainian officials to state publicly that they would investigate Trump's political rivals.
John Sullivan, deputy secretary of state and Trump's nominee for U.S. ambassador to Russia, testified that Trump's requests to Zelensky were improper.
Timothy Morrison, a senior National Security Council aide who resigned on the eve of his scheduled testimony, testified that he was on a call between Trump and Sondland, during which Trump denied seeking a quid pro quo but proceeded to "insist" that Zelensky publicly announce investigations into the Bidens and other Democrats.
Fiona Hill, Trump's former top adviser on Russia, testified that Sondland, Giuliani and acting White House chief of staff Mick Mulvaney were leading a dangerous shadow foreign policy. She said there was "wrongdoing" in U.S. foreign policy.
Several witnesses have obeyed Trump's command and refused to testify. They include John Eisenberg, who is a material witness to the cover-up surrounding the July 25 call. After Vindman expressed his concern about the call, Eisenberg ordered the records of the call transferred to a top-secret computer server used only for the most sensitive government information. Eisenberg is refusing to comply with a subpoena to testify.
Other subpoenaed witnesses who have refused to testify include Mike Ellis, Eisenberg's deputy; Robert Blair, senior adviser to Mulvaney; Russell Vought, acting director of the Office of Management and Budget; and Brian McCormack, associate director of the White House budget office.
Meanwhile, on November 1, the Office of Legal Counsel issued a guidance stating that subpoenaed executive branch witnesses need not testify in impeachment inquiries "about matters that potentially involve information protected by executive privilege without the assistance of agency counsel." Witnesses who are testifying before congressional committees in the impeachment inquiry may be accompanied by personal attorneys, but not government ones.
Whether senior presidential advisers enjoy "absolute immunity" if they refuse to comply with a congressional subpoena to testify at an impeachment inquiry will invariably be decided by the Supreme Court. Judge Jackson's decision in the McGahn case will be appealed to the Court of Appeals and then to the Supreme Court. This may prove to be one of the pivotal separation of powers cases of our time.
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