Former White House counsel Don McGahn. | Saul Loeb/Pool Photo via AP
Lawmakers have been fighting to bring in former White House counsel Don McGahn for questioning since he showed up repeatedly at the center of anecdotes detailing President Donald Trump’s potential obstruction of justice in the special counsel’s final report. But the Justice Department has tried to block McGahn’s testimony, arguing that the ex-Trump aide can essentially ignore a congressional subpoena related to his time in the White House, and that the courts shouldn’t weigh in on a dispute between Congress and the executive branch.
“So what does checks and balances mean?” Jackson, an appointee of President Barack Obama,asked at one point during the court arguments.
James Burnham, arguing for the Justice Department, replied that the dispute between the House Judiciary Committee and McGahn should not be resolved through litigation. He argued that the Constitution and more than two centuries of interactions between the White House and Congress hadn’t required courts to weigh in. And Jackson shouldn’t now, he said.
Facing a barrage of skeptical questions from Jackson, Burnham later conceded, “If you don’t think the president has absolute immunity, that’s a serious problem for my argument.”