How Judge Ketanji Brown Jackson handled Trump and executive privilege cases
By Joan Biskupic, CNN
Judge Ketanji Brown Jackson has already ruled in epic battles between Congress and former President Donald Trump, rebuffing efforts to shield White House testimony and records.
President Joe Biden’s Supreme Court nominee, who begins Senate hearings on Monday, twice sided with US House committees trying to wrest information from Trump and his top aides. She endorsed a robust role for judges to resolve clashes between the legislative and executive branches, putting her at odds with GOP-appointed judges who found such politically charged controversies beyond the realm of judicial power.
“What I don’t understand,” Jackson said during a 2019 hearing over testimony sought from former White House counsel Don McGahn, “is this notion that the judiciary can’t play its traditional role in deciding what the law is between these other branches. The Constitution itself sets the system in that way.”
Jackson is certain to face new conflicts between congressional investigators and Trump, as well as with Biden and his successors. Ongoing cases involving Trump and the powers of government could land before her, including disputes over whether Congress can access Trump’s financial records and whether Trump could be held accountable by private litigants for the January 6 insurrection.
Jackson’s cases testing the checks and balances between the branches, among the most important from her nine years on lower courts, offer a window into her judicial method and courtroom style.
Overseeing the McGahn case, she showed a take-charge approach, sprinkled with lighthearted moments.
She announced at the outset that she did not intend to “truncate” the hearing, which ended up going four hours. “It’s not my practice to impose time limits,” said Jackson, then a US district judge. “I find them distracting.” As the hours wore on that October 31, 2019, she expressed regret for keeping the lawyers from getting home for Halloween.
When she asked a Department of Justice lawyer to speak slower, she added, “You’re an excellent advocate, but I’m just trying to latch on.” The lawyer said he appreciated the compliment because his mother was watching. She rejoined, “He’s very good.”
In the end, Jackson’s 120-page opinion in Committee on the Judiciary v. McGahn went against the Department of Justice, which had taken up Trump’s effort to prevent the former White House counsel from testifying. The House Judiciary Committee was looking at the time into possible Trump obstruction of special counsel Robert Mueller’s Russia investigation and had subpoenaed McGahn testimony.
“Simply stated, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote in her November 2019 opinion, denying the Trump claim of immunity. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
In a second relevant case, which came before the US Court of Appeals for the District of Columbia Circuit after Jackson’s 2021 appointment to that bench, Jackson joined a decision letting the House select committee investigating the January 6 riot at the US Capitol obtain Trump White House materials from the National Archives. The court described the episode that occurred as Congress was certifying Biden’s victory “the most significant assault on the Capitol since the War of 1812.”
The House January 6 committee is continuing to investigate Trump’s role in trying to overturn the 2020 presidential election, including as he appeared at a January 6 rally and told his followers to march toward the Capitol and “fight” for their country.
Jackson was an active questioner during the November 2021 oral arguments leading up to the ruling in Trump v. Thompson. She emphasized that a congressional interest in preserving records and restoring public confidence could outweigh a “limited intrusion into executive confidentiality.”
McGahn case likely to come up at hearings
Jackson spent eight years on the US district court in Washington and the past year on the US appellate court for the District of Columbia Circuit, often referred to as the DC Circuit.
When she was up for that DC Circuit position, GOP senators questioned her actions in the 2019 McGahn case and are likely to repeat that focus in the upcoming hearings.
At the time, the House Judiciary Committee was considering a Trump impeachment and sought McGahn’s testimony related to possible Trump obstruction of the Mueller probe.
Jackson expressed sympathy with the House position during oral arguments, saying, “How can the legislature actually exercise oversight with respect to the executive unless it has some ability to enforce its inquiries, its commandments with respect to … information.”
She chastised the Trump administration lawyer for appearing to seek a superior role for the executive branch.
“What you’ve just suggested is that the President of the United States, not the judiciary, gets to decide when privileges are appropriate, when people can testify or not, and that doesn’t seem to me to be sort of in the purview of the executive under our constitutional scheme.”
When Jackson ruled a month later, she referred to the Trump assertion that a president could unilaterally determine whether aides should defy a subpoena.
“For a similar vantagepoint,” she wrote in a footnote, “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.'”
Jackson’s decision issued in November 2019 represented the first major check on the former President’s efforts to elude congressional demands for testimony or other information. Her ruling relied heavily on precedent requiring testimony from White House officials during George W. Bush’s presidential tenure.
She was reversed three months later, however, when a DC Circuit panel declared judges lack the authority to intervene in the McGahn dispute and said Jackson “gave short shrift to the separation-of-powers principles at stake.”
“In this case, the dangers of judicial involvement are particularly stark,” then-US appellate Judge Thomas Griffith wrote. “Few cases could so concretely present a direct clash between the political branches.”
The full DC Circuit, however, then reheard the case and reinstated the Jackson position that the House case against McGahn was subject to judicial review. Litigation continued, and the two sides eventually reached an agreement in 2021 and McGahn testified before the House Judiciary Committee.
Griffith, who stepped down from the DC Circuit in 2020, recently sent a letter of endorsement to the Senate Judiciary Committee referring to the controversy:
“Judge Jackson and I occasionally differed on the best outcome of a given case. And in one important case involving the former President, I was one of the two judges on a three-judge panel who voted to overturn her decision. However, I have always respected her careful approach, extraordinary judicial understanding, and collegial manner, three indispensable traits for success as a Justice on the Supreme Court.”
Griffith also referred to Jackson’s “historical and exceptional nomination.” If confirmed, Jackson would be the first Black woman ever to sit on the high court.
Senate Republicans who focused on the case during her 2021 hearings are likely to bring it up again. Sen. Chuck Grassley of Iowa challenged her declaration that “presidents are not kings,” suggesting she was engaged in a kind of hyperbole.
“Did the Department of Justice claim monarchical powers for the President in that case?” Grassley, an Iowa Republican, said in one of his written questions to the judge last year.
Jackson sidestepped the query and pointed to the administration’s argument: “In McGahn, the Department of Justice claimed that the President has the power to prevent certain former staff members from appearing for questioning in response to a valid legislative subpoena, even against (the) will of the former staff member to whom the subpoena is directed—i.e., even when the former staff member would otherwise be required by law to respond to the subpoena, would willingly do so, and would be able to invoke executive privilege in the context of such questioning, where appropriate.”
Picking up on another rhetorical flourish from the Jackson opinion, Grassley then asked, “Did the Department of Justice claim blood loyalty on the part of Don McGahn?”
Jackson referred Grassley to her earlier answer characterizing the administration’s position.
Jackson part of trio that rejected Trump National Archives claim
The second major Trump case Jackson handled arose more recently, in the context of the ongoing House investigation of the January 6 siege of the Capitol. The former President tried to assert executive privilege to block the National Archives from turning over the White House documents to the committee.
Biden had refused to assert executive privilege, contending the records were crucial to the January 6 investigation. As in the McGahn case, Jackson during those oral arguments showed regard for the House investigative mission, drilling down on whether a former president would ever be able to eclipse the judgment of a sitting president.
Joining her for the panel arguments were US Appellate Court Judges Patricia Millett and Robert Wilkins, and the session went more than three hours.
In their decision, written by Millett, the trio unanimously rejected Trump’s effort to shield the materials, finding that Trump had failed to provide grounds to override Biden’s judgment and the agreement between the White House and congressional investigators over the documents.
“Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.”
When Trump appealed to the Supreme Court in January, the justices by an 8-1 vote declined to take up Trump’s case. Only Clarence Thomas dissented, offering no explanation.
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