Judge Rules Former White House Counsel Must Testify

and on Bloomberg dot com slash podcasts. The House Intelligence Committee is compiling a report from seventeen closed door depositions and five public hearings that will begin to outline whether President Donald Trump engaged in treason, bribery, or high crimes and misdemeanors by withholding nearly four hundred million dollars in foreign aid to pressure Ukraine for an investigation into his political rival. That report will be delivered to the Judiciary

Committee when Congress resumes. According to Committee Chair Adam Schiff, the Judiciary Committee has already scheduled impeachment hearings for December four. In the meantime, a DC federal judge has issued an opinion ordering former White House Counsel Don McGann to appear before the House to testify under a subpoena, an opinion that could there on other witnesses in the impeachment inquiry.

Here's House Intelligence Committee member Democrat Mike Quigley. I think it's a message to all the witnesses who are obstructed and the White House for telling them not to appear, it's time to show up. Joining me as former federal prosecutor Robert Mann's a partner at mcarter and English Bob. This was a thorough opinion that not only quoted from case law, but also from the federalist papers. Tell us

about it. In response to the Trump administration sweeping claimed that top presidential advisors are absolutely immune from being compelled to talk about their official duties, Judge Jackson issued one page opinion, a very thorough opinion in which she used some very strong language, saying no one is above the law. Presidents are not kings to really get issuing a stern rebuke to the administration saying that these witnesses have to

come before Congress and they have to testify. The judgment so far as to say that the same reasoning would apply to national security advisors, and then former National Secure Advisor John Bolton's attorney said this didn't apply to him, does it? Well? Mr Balton's attorney has been trying to draw a distinction between his client, who deals with national security issues, and Don McGann, who was White House counsel, saying there's an issue there because national security issues deserve

a higher degree of privilege. The judge here seemed to go out of her way to say that it really didn't matter whether it was a domestic issue or a foreign policy issue, that her ruling would be broad enough to say that all of those witnesses had to at least show up in front of Congress and appear to answer their questions. So this ruling doesn't necessarily mean that

President Trump's claims of executive privilege will be ignored. No, the only issue that was before the court here is whether or not these witnesses could ignore these subpoenas altogether, or whether they had to appear to answer questions. What it does not address, what it leaves unanswered are what

questions those witnesses will have to answer. They will still be able to assert executive privilege, And even though Congress ultimately wins this issue and forces them to appear, it's entirely unclear as to how many questions they'll answer, to what extent illistort executive privilege, And it's possible that this issue will wind up back in the courts again, and

of course the Justice Department will appeal this decision. Now McGann's testimony relates to the Mueller report, If the House calls him to testify, will they lose what was a laser like focus on the Ukraine issue and perhaps muddy the waters. Even though the House originally subpoena Don McGan to testify regarding the Mueller inquiry, it's not at all clear that that would be the limit of his testimony.

If he's actually called to testify before the House. I believe that the House would question him not only on the Mueller investigation, but on other conversations he may have had regarding the Ukraine issue, if in fact he has any information regarding that. So I don't think it would be limited to that issue. I think it would be

broader than that. But more importantly, this is simply the test case that has made its way to the courts that applies also arguably to John Bolton, to mc mulvady, and to others who have been subpoena in connection with

the Ukraine investigation. The argument that the House would make is that all of these people have to come in and at least show up to testify that the sweeping immunity claim that the Trump administration has attempted to assert over all top presidential advisors is simply too broad and they have to show up and answer questions. White House policy has been one of blanket opposition to anyone from the White House testifying or providing documents for the impeachment inquiry.

How does that compare to the way Presidents Clinton and Nixon handled their opposition to impeachment investigations. Well, the two prior impeachment proceedings were very different. In the case of the Nixon impeachment proceeding, those issues were ultimately decided by the court, and was when the Supreme Court decided that the tapes had to be turned over. That was really the turning point for Nixon. And remember, Nixon never was

actually impeached by the House of Representatives. The Judiciary Committee had voted articles of impeachment, but he resigned before the House voted on those articles, and of course there never was a Senate trial. In the case of the Bill Clinton impeachment, again very different than the facts we have here, because in that case you had Kenneth Star, the Independent Council, who essentially did all of the investigation for the House.

All of those interviews were conducted privately, depositions were conducted out of the public view, and then this report was packaged up and handed to the House Republicans, and that really was the basis for the articles of impeachment here in this instance, House Democrats have had to do all of the investigations themselves, some of which occurred behind closed doors by Intelligent Committee investigations, depositions and documents, and belover

into public hearings. Bob, turning to those two weeks of public hearings, what stood out to you? I think what was most riveting in the testimony was that you saw a series of civil servants and career diplomats who came in and painted a fairly consistent picture of what they

believed had gone on. And really what it came down to was these various witnesses, many of them who had spent many years in public service, warning the House Intelligence Committee that they were disturbed by what they believed was this pursuit of an investigation into the Bidens, which they thought undermined US foreign policy and wasn't in fact rooted in a sincere effort to crack down on correction or

criminal activity in the Ukraine. According to officials familiar with committee plans, the three articles of impeachment that they would be considering include bribery, abuse of power, and obstruction of Congress. Did you see foundation for those articles from the hearings? I think there has been evidence that has been brought before the Intel Agents Committee which could form the basis of at least three articles of impeachment bribery, abuse of power,

and obstruction of Congress. But it's important to remember that this is fundamentally a political process rather than a legal one. There is no definition for what constitutes an impeachable offense. So really what an impeachable offense is is whatever the House of Representatives decide it is. And then when it shifts over to a trial in the Senate, should the House of Representative vote articles of impeachment. That process is left entirely to the Senate in terms of how they

would like that process to proceed. So this is really a fundamentally political process where the House can decide what constitutes an impeachable offense, and the House can decide how to run the process that ultimately leads to the voting of articles of impeachment, and then it shifts over to the Senate, where they can decide how that process will run, how long the trial will run, how many witnesses will appear, and really control um what they expect to have happened

uh in that house, in that proceeding. So this is really going to be a process that unless we see a major shift in the politics of how the public is viewing this process, it is really a foreordained process where it is very likely the Democrats will vote the articles of impeachment and equally likely that there will be no conviction in the Senate, which is controlled by the Republicans. Thanks Bob, that's Robert Mints of mcarter and English. Thanks

for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg