UPDATE Feb 28, 2020 – Trump wins appeal. McGahn cannot be subpoenaed by the House Democrats. https://nypost.com/2020/02/28/trump-wins-don-mcgahn-appeal-limiting-democrats-power-to-summon-aides/
U.S. District Court (lower federal court) Judge Ketanji Brown Jackson, an Obama appointee, ruled that Don McGahn must testify to Congress about his time as the White House’s top lawyer.
That ruling goes against hundreds of years of Common Law, Multiple Supreme Court rulings, and the 6th Amendment to the US Constitution.
Says Judge Jackson in a stunning example of Orwellian Doublespeak:
“DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards,” Jackson wrote in her 120-page opinion. “In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny.”
Jackson called absolute immunity “a fiction” that has been propagated by a succession of presidential administrations by simply repeating it as a fact while avoiding testing the principle in court.
The person who has it exactly backwards and WILL have her ruling overturned on appeal is Judge Jackson.
Wikipedia explains this as well as any:
Deliberative process privilege is the common-law principle that the internal processes of the executive branch of a government are immune from normal disclosure or discovery in civil litigations, Freedom of Information Act requests, etc.
The theory behind the protection is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions, resulting in better decisions for society as a whole. The deliberative process privilege is often in dynamic tension with the principle of maximal transparency in government.
The right to have legal deliberation and for an executive to get advice from people without people giving advice being persecuted for doing so is in the public interest. It has been asserted by kings and Presidents alike since before the United States existed.
Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution. However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its own area of Constitutional activity.
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon in the context of a subpoena emanating from the judiciary, instead of emanating from Congress.
Chief Justice John Marshall ruled that there is no exception for The President in the 6th Amendment, which means that the right to legal counsel and have such communications privileged applies to the President. You have heard of Attorney-Client privilege – well that is what this means.
Democrats have waged a direct assault on the rights of the accused to defend themselves. Can you imagine what the country would look like if they had their way with due process and YOU stood accused? Take a look at Cuba, Venezuela, the former USSR or Maoist China for example.