Trump's subpoena-defying claims legally flawed, ex-GOP lawmakers argue

Twenty former Republican lawmakers, officials and legal experts are urging a federal appeals court to reject President Donald Trump’s claim that his former White House counsel, Don McGahn, can ignore a House subpoena.

The slate of prominent GOP figures is arguing that the country’s founders did not intend for presidents and their advisers to enjoy such untrammeled authority to reject congressional oversight. House Democrats are pushing for McGahn to testify about episodes that special counsel Robert Mueller investigated as potential obstruction of justice.

While many right-leaning lawyers like Attorney General Bill Barr have asserted that the founders’ view of the Constitution mandates an expansive, muscular view of executive authority and executive privilege, the new friend-of-the-court brief argues that a truly “originalist” view of the showdown calls for the courts to force McGahn to appear, especially given the ongoing impeachment fight.

“The idea that a president and his current and former advisors enjoy absolute immunity from subpoena — particularly during impeachment proceedings — finds no support in early American practice,” the GOP ex-officials contend. “During the early republic, Congresses and presidents recognized that Congress had nearly untrammeled authority to request documents and testimony to support impeachment proceedings.”

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