How Judge Ketanji Brown Jackson handled Trump and executive privilege cases

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.”

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.

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.”