https://www.nationalreview.com/2019/11/theres-less-to-the-mcgahn-ruling-than-meets-the-eye/
Contrary to popular belief, the former White House counsel has been ordered to show up, not to testify — and even that is being appealed.
You might assume that the girth of the nearly 120-page opinion Judge Ketjani Brown Jackson issued Monday means that an issue of great consequence to the House impeachment inquiry has been decided. But you’d be wrong. And you’d be further misled if you put much stock in the headlines breathlessly announcing that the federal district court in Washington, D.C., has ordered that former White House counsel Don McGahn “must testify to Congress.”
What Judge Jackson actually ordered is that McGahn must show up in compliance with the House Judiciary Committee’s subpoena. She did not direct him to provide any actual testimony. That is, the ruling sidesteps the question that actually matters: To what extent may McGahn invoke executive privilege (in addition to other potential privileges) to avoid answering lawmakers’ questions?
The ruling is nevertheless being appealed.
The case involves the Mueller Report’s obstruction volume. Yes, I know it seems like two or three impeachment gambits ago, but House Democrats still want to impeach President Trump over several incidents that the special counsel described as possible obstruction but did not recommend indictment for (and that Attorney General Bill Barr and then-deputy AG Rod Rosenstein concluded did not establish obstruction). McGahn was a central witness on this part of the investigation. He was interviewed extensively by Mueller’s team and provided memoranda of his interactions with Trump. The White House has always taken the position that making McGahn available to a prosecutor (i.e., an intra-executive-branch exchange) did not waive any privilege claims the president may have if Congress seeks information from McGahn (i.e., an inter-branch demand).