I have scanned the opinion quickly and it is well written https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000
Finally, the Court turns to DOJ’s contention that, quite apart from the accepted
ability of a President to invoke executive privilege to protect confidential information
during the course of aides’ testimony before Congress, as a matter of law, it is the
President who controls whether such aide provides any testimony whatsoever. During
the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke
absolute testimonial immunity with respect to current and former senior-level aides
belongs to the President. (See, e.g., Hr’g Tr. at 42:15–16 (“[T]he President owns the
privilege here. So he is the owner of Mr. McGahn’s absolute immunity from
compulsion[.]”), 43:4–6 (“[T]he President owns the privilege as to former officials with
the same vigor with which he owns it to current officials.”), 125:5 (maintaining that
immunity is “the President’s to assert”).) And when asked whether this power of the
Executive is limited to such aides’ communications with Congress in particular, or also
extends to preventing his aides from speaking to anyone else (e.g., the media) even
after their departure from the White House, counsel indicated that while the Executive
branch has “not taken a position on that,” it was “definitely not disclaiming that.” (Id.
at 43:12–16.) This single exchange—which brings to mind an Executive with the power
to oversee and direct certain subordinates’ communications for the remainder of their
natural life—highlights the startling and untenable implications of DOJ’s absolute
testimonial immunity argument, and also amply demonstrates its incompatibility with
our constitutional scheme.
Stated simply, the primary takeaway from the past 250 years of recorded
American history is that Presidents are not kings. See The Federalist No. 51 (James
Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville,
Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans.,
Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound
by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of
liberty, it is indisputable that current and former employees of the White House work
for the People of the United States, and that they take an oath to protect and defend the
Constitution of the United States. Moreover, as citizens of the United States, current
and former senior-level presidential aides have constitutional rights, including the right
to free speech, and they retain these rights even after they have transitioned back into
private life.
To be sure, there may well be circumstances in which certain aides of the
President possess confidential, classified, or privileged information that cannot be
divulged in the national interest and that such aides may be bound by statute or
executive order to protect. But, in this Court’s view, the withholding of such
information from the public square in the national interest and at the behest of the
President is a duty that the aide herself possesses. Furthermore, as previously
mentioned, in the context of compelled congressional testimony, such withholding is
properly and lawfully executed on a question-by-question basis through the invocation
of a privilege, where appropriate. 34 As such, with the exception of the recognized
restrictions on the ability of current and former public officials to disclose certain
protected information, such officials (including senior-level presidential aides) still
enjoy the full measure of freedom that the Constitution affords. Thus, DOJ’s present
assertion that the absolute testimonial immunity that senior-level presidential aides
possess is, ultimately, owned by the President, and can be invoked by the President to
overcome the aides’ own will to testify, is a proposition that cannot be squared with
core constitutional values, and for this reason alone, it cannot be sustained.
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