Coleman Joins Amicus Brief to Require White House Counsel Don McGahn to Testify Before Congress

U.S. Court of Appeals, District of Columbia Hears Oral Arguments on January 3, 2020

Statement by Former Congressman Tom Coleman (R-MO)
I am pleased to have played a role in the filing of the amicus (friend of the court) brief in the Court of Appeals, District of Columbia regarding the case brought by the House Judiciary Committee to enforce their subpoena issued to former White House Counsel, Don McGahn. Fourteen of my former congressional Republican colleagues joined me in supporting our brief. In addition there were former Republican Executive Branch officials who also signed on. Our view, as expressed in the brief, is that the broad immunity claims asserted by the Executive Branch, if accepted by the court, would severely disrupt the Constitution’s careful balance between that branch and Congress.

We do not believe Mr. McGahn’s assertion of a claim of broad immunity from testifying before Congress is valid. The subpoena issued by the House Judiciary Committee compelling him to testify regarding statements he made to the Special Prosecutor relevant to the president’s conduct in directing McGahn to fire the Special Prosecutor is valid and necessary under the authority given to the Legislative Branch in the U.S. Constitution.

Our arguments focused on historical sources from the early years of our nation that demonstrated that the Constitution was not understood at ratification to provide the president, let alone his advisors, absolute immunity from subpoena.

We pointed out the Supreme Court has explained time and again, in separation of powers cases, the Court has often placed significant weight upon historical practices. And that historical practice reinforces our belief that Congress may compel the testimony of a former presidential advisor in an impeachment inquiry.

As noted in our brief, John Quincy Adams stated it would be a mockery of the Constitution’s impeachment power for Congress to have the power to impeach but not the power to obtain evidence and proof on which its impeachment was based.

The historical precedent of support cited for our position came from none other than America’s first president, George Washington. Washington had sent Chief Justice John Jay to negotiate a treaty with England in 1794. The House of Representatives passed a resolution demanding the president disclose his instructions to Jay. Washington responded in writing explaining that the treaty did not require the approval by the House of Representatives, and, therefore, did not relate “to any purpose under the cognizance of the House of Representatives, except that of impeachment, which the House resolution had not expressed.”

To put an exclamation point on our argument we related how Chief Justice John Marshall issued subpoenas to President Thomas Jefferson and in doing so held that the president is not a “king” exempt from compulsory process. Marshall observed that he did not know of “any court of the United States” that had “decided that a subpoena cannot issue to the president.”

I want to thank the attorneys at the non-profit organization, Protect Democracy for their time and efforts for those of us who joined as plaintiffs on the Amicus Brief.

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Tom Coleman is a former Republican Member of Congress from Missouri and has served as an adjunct professor at New York University’s Robert F. Wagner Graduate School of Public Service and at American University.