Judge Ketanji Brown Jackson, of the U.S. District Court for the District of Columbia. (Photo: Diego M. Radzinschi/ALM)

U.S. District Judge Ketanji Brown Jackson didn't hold back in her ruling that former White House counsel Donald McGahn must comply with a House Judiciary Committee subpoena for his testimony as part of the impeachment probe.

The 120-page opinion drew on a variety of sources, such as a past court opinion determining that former White House counsel Harriet Miers similarly had to comply with a congressional subpoena. It also included a significant number of citations from "The Federalist Papers," and even a reference to George Orwell's "Animal Farm."

Jackson found that courts have the authority to rule on the enforcement of a congressional subpoena of a former executive branch official and that McGahn must comply with the subpoena in order for the House to be able to conduct its oversight duties.

The Department of Justice, which is defending McGahn in the case, filed a notice of appeal Tuesday morning. The agency and the House Judiciary Committee have agreed to a seven-day administrative stay of Jackson's order, per a court filing.

Here are six passages from the opinion that stood out and may find their way into future arguments and opinions on the power of congressional subpoenas.

"Presidents are not kings."

"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. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life."

"To be sure, there may well be circumstances in which certain aides of the President possess confidential, classified, or privileged information that cannot be divulged in the national interest and that such aides may be bound by statute or executive order to protect. But, in this Court's view, the withholding of such information from the public square in the national interest and at the behest of the President is a duty that the aide herself possesses….Thus, DOJ's present assertion that the absolute testimonial immunity that senior-level presidential aides possess is, ultimately, owned by the President, and can be invoked by the President to overcome the aides' own will to testify, is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained."

Absolute immunity "appears to be a fiction."

"To make the point as plain as possible, it is clear to this Court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation."

"And because the contention that a President's top advisors cannot be subjected to compulsory congressional process simply has no basis in the law, it does not matter whether such immunity would theoretically be available to only a handful of presidential aides due to the sensitivity of their positions, or to the entire Executive branch. Nor does it make any difference whether the aides in question are privy to national security matters, or work solely on domestic issues."

"Hard to imagine a more significant wound."

"Thus, blatant defiance of Congress' centuries-old power to compel the performance of witnesses is not an abstract injury, nor is it a mere banal insult to our democracy. It is an affront to the mechanism for curbing abuses of power that the Framers carefully crafted for our protection, and, thereby, recalcitrant witnesses actually undermine the broader interests of the People of the United States."

"Thus, DOJ's hand-waving over the Judiciary Committee's purported failure to establish a 'cognizable' injury for standing purposes masks the substantial harm that results from an Executive branch official's defiance of a congressional subpoena. But it is hard to imagine a more significant wound than such alleged interference with Congress' ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States."

"Transgress core constitutional truths."

"Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts, congressional committees, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions)."

"By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials."

An "Animal Farm" comparison.

"Meanwhile, says DOJ, the President has the authority to make unilateral determinations regarding whether he and his senior-level aides (both current and former) will respond to, or defy, the subpoenas that authorized House committees issue during constitutionally authorized investigations of potential wrongdoing within his administration."

Footnote: "For a similar vantagepoint, see the circumstances described by George Orwell in the acclaimed book Animal Farm. ('All animals are equal but some animals are more equal than others.')"

"Not the lifetime pass."

"It is also the case that the other rationale that such senior-level presidential aides might hope to rely on—'I'm too busy'—is unavailable in the wake of the Supreme Court's conclusion that even the President himself must find the time. In any event, no such excuse could possibly apply to former senior-level aides, who have long departed from the White House, because such individuals no longer have proximity to power. What, then, justifies their right to be excused from the duty to respond to a call from Congress, especially when other private citizens have no choice?"

"At a minimum, this perplexing question raises the following conceptual conundrum: if the purpose of providing certain senior-level presidential aides with absolute testimonial immunity is that the practicalities of their special roles demand it, then what justifies allowing that entitlement to follow them when they return to private life? As a matter of pure logic, it would seem that if one's access to the Oval Office is the reason that a categorical exemption from compelled congressional process is warranted, then that trump card should, at most, be a raincheck, and not the lifetime pass that DOJ proposes."

Read more:

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