Osler's Razor

Yesterday, DC District Court Judge Katanji Brown Jackson issued a 120 page opinion (whew!) that supported her ruling that the White House could not assert executive privilege in a way that completely blocks former White House Counsel Don McGahn from testifying under subpoena to House investigators in the impeachment proceeding.

It was a push-back against a novel argument presented by the President: that he can categorically bar employees and former employees from even showing up in response to a subpoena from Congress. The ruling was explicitly rooted in the reasoning of a 2008 case from the DC District involving a subpoena issued to GW Bush-era former WH Counsel Harriet Miers. That earlier decision doesn't have the power of a controlling precedent (since it is from another judge on the same court), but it does mean that the judge is not flying solo.

In short, the ruling means that McGahn--and others, including John Bolton-- would be able to use the opinion as legal cover to appear and testify subject to the subpoenas. They would retain the ability to claim executive privilege in response to individual questions once they are there, but it is up for speculation whether or not they would do so. Bolton, who is thoroughly alienated from the WH, might not.

The decision will be appealed. But it seems unlikely that the subpoena will be stayed pending that appeal, so I would keep a close eye on this one over the next week.

John Bolton knows a lot. And he is not happy.