“Unfortunately for DOJ... these contentions about the relative power of the federal courts, congressional committees, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths...”

— Ketanji Brown Jackson

Committee on the Judiary, United States House of Representatives, Plaintiff, v. Donald F. McGahn II, Defendant. (Nov 25, 2019)

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Ketanji Brown Jackson10

United States District Judge 1970

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“Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.”

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Committee on the Judiary, United States House of Representatives, Plaintiff, v. Donald F. McGahn II, Defendant. (Nov 25, 2019)

“What is missing from the Constitution’s framework as the Framers envisioned it is the President’s purported power to kneecap House investigations of Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.”

Ketanji Brown Jackson (1970) United States District Judge

Committee on the Judiary, United States House of Representatives, Plaintiff, v. Donald F. McGahn II, Defendant. (Nov 25, 2019)

“Legislative flexibility on the part of Congress will be the touchstone of federalism when the capacity to support combustion becomes the acid test of a fire extinguisher. Congressional flexibility is desirable, of course - but only within the bounds of federal power established by the Constitution. Beyond those bounds (the theory of our Constitution goes), it is a menace.”

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“Pure and absolute truth can only be found beyond all its possible expressions; these expressions, as such, cannot claim the attributes of this truth, their relative remoteness from it is expressed by their differentiation and multiplicity, by which they are strictly limited.”

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“It has always been denied by the republican party in this country, that the Constitution had given the power of incorporation to Congress. On the establishment of the Bank of the United States, this was the great ground on which that establishment was combated; and the party prevailing supported it only on the argument of its being an incident to the power given them for raising money.”

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“This Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.”

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Committee on the Judiary, United States House of Representatives, Plaintiff, v. Donald F. McGahn II, Defendant. (Nov 25, 2019)

“It is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, thus far shalt thou go and no further. But in the absence of a constitution, men look entirely to party; and instead of principle governing party, party governs principle.”

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Source: Soundings and Silences (2016)

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