Since the release of the Mueller Report, the White House and the Democrat-controlled House of Representatives have been deadlocked in a showdown as Democrats seek to expand their investigations into the findings in the Special Counsel’s report and other matters,
The first manifestation of this came when the report itself was released and, instead of turning the report over to Congress, Attorney General William Barr sent Congress a written summary that purported to summarize the findings of the report. With members of both the House and Senate complaining at the time that Barr’s letter was insufficient the Justice Department ultimately provided Congress with a redacted copy of the report. It quickly became clear from even the redacted report that Barr had substantially misrepresented the contents and conclusions of the report, something that became a focus of his appearance before the House Judiciary Committee in April. As of yet, the Administration has yet to make a full unredacted copy of the Special Counsel’s report available to Congress, claiming that it is covered by Executive Privilege. Barr, meanwhile, has been held in contempt by the House Judiciary Committee, although there has yet to be any formal action on this front.
In addition to playing games with the Special Counsel’s report, the Administration has been refusing to comply with seemingly legitimate requests for copies of documents. The most notable example of this came in response to the request of the Chairman of the House Ways and Means Committee for copies of the President’s tax returns. Initially, and despite a Federal law that seems to clearly authorize the Chairman to make such a request, Treasury Secretary Steve Mnuchin refused to comply with the request, arguing that it lacked a “legitimate legislative purpose.” When the committee followed up with a subpoena for the tax returns, Mnuchin repeated his objection and again refused to provide the committee with copies of the requested documents, meaning that the matter is likely leading to Mnuchin being held in contempt and probable litigation on the part of the committee to enforce its subpoena and its rights under the relevant provision of the U.S. Code and enforce its subpoena.
In yet the latest example of this stonewalling, the White House is refusing to allow former White House Counsel Don McGahn, who had been the primary contact between the Trump White House and the Special Counsel’s office for the better part of the first two years of Trump’s Presidency, to testify before the House:
The White House on Monday blocked former counsel Donald McGahn from testifying to Congress, the latest act of defiance in the ongoing war between House Democrats and President Trump.
McGahn, who Democrats hoped would become a star witness in their investigation into whether Trump obstructed justice, was subpoenaed to testify Tuesday morning. The former White House counsel delivered critical testimony in several instances of potential obstruction by Trump detailed in special counsel Robert. S. Mueller III’s report.
“The Department of Justice has provided a legal opinion stating that, based on long-standing, bipartisan, and constitutional precedent, the former counsel to the president cannot be forced to give such testimony, and Mr. McGahn has been directed to act accordingly,” said White House press secretary Sarah Sanders in a statement. “This action has been taken in order to ensure that future presidents can effectively execute the responsibilities of the office of the presidency.”
Trump, speaking to reporters Monday evening, called the directive “a very important precedent. And the attorneys say that they’re not doing that for me. They’re doing it for the office of the president. So we’re talking about the future.”
The 15-page legal opinion written by Assistant Attorney General Steven A. Engel argues McGahn cannot be compelled to testify before the committee, based on past Justice Department legal opinions regarding the president’s close advisers.
The memo says McGahn’s immunity from congressional testimony is separate and broader than a claim of executive privilege.
The immunity “extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser – as a function of the independence and autonomy of the president himself,” Engel wrote.
That immunity, the memo insists, does not evaporate once the adviser in question leaves the government, because the topics of interest to Congress are discussions that occurred when the person worked for the president.
As a private citizen no longer in the government, McGahn is not necessarily bound by the White House directive, or the OLC memo, to refuse to comply with the subpoena. In a letter to the committee obtained by The Washington Post, McGahn’s lawyer, William A. Burck, said the former counsel would not testify.
“Mr. McGahn remains obligated to maintain the status quo and will respect the President’s instruction,” Burck wrote.
Testifying could jeopardize business and professional standing for McGahn, who works for Jones Day, a Republican law firm with close ties to the Trump campaign and electoral politics. Jones Day will still be involved in the reelection campaign but will have a reduced role from 2016, campaign officials say, when they were the main firm.
The move to bar McGahn from answering lawmakers’ questions angered House Democrats already eager to hit back at what they view as White House stonewalling. The defiance raises the possibility that the House will hold McGahn in contempt of Congress, as House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) has threatened.
“It is absurd for President Trump to claim privilege as to this witness’s testimony when that testimony was already described publicly in the Mueller report,” Nadler said in a statement. “Even more ridiculous is the extension of the privilege to cover events before and after Mr. McGahn’s service in the White House.”
The chairman said the committee would still meet on Tuesday morning, and “Mr. McGahn is expected to appear as legally required.”
While the White House is free to invoke Executive Privilege with respect to specific conversations between McGahn and the President or his senior advisers, the idea that the White House has the authority to completely block McGahn from testifying at all is quite simply absurd.
As a preliminary matter, it’s important to note that McGahn’s conversations with the President or his advisers are not covered by the attorney-client privilege. This is because, as a Federal employee rather than being one of Trump’s private attorneys, McGahn has no attorney/client relationship with Donald Trump the person. Instead, his “client,” such as he had one during the time he was serving as White House Counsel, was (and remains) the Presidency as an institution and the White House generally. Since there is no attorney/client relationship, and thus no privilege.
Second, while Executive Privilege may apply in some specific circumstances as I noted above, it cannot be used to bar McGahn’s testimony as a whole because it’s clear that not all of McGahn’s activity falls within the confines of that privilege. This is especially true regarding testimony regarding McGahn’s interactions with the Special Counsel’s office, which is clearly not covered by any conceivable privilege.
Finally, it is important to note that McGahn has already spoken to third parties regarding many of the subject matters that the Judiciary Committee would be questioning him about. Specifically, I am referring to his conversations and interviews with Special Counsel Mueller and his team of investigators. These interviews reportedly totaled more than thirty hours and were conducted with the full approval of the White House and are set forth in unredacted portions of the Mueller Report made available to Congress. In that respect, it is arguably the case that the White House has waived any possible objection to McGahn testifying before Congress.
For these reasons, it seems clear to me that the effort to block McGahn from testifying at all is without legal justification.
Notwithstanding the fact that McGahn’s attorney has made clear that his client will not appear this morning, the House Judiciary Committee still intends to meet as scheduled. At that point, assuming that McGahn does not appear, the committee will face the same options that other House Committees have been presented with in the face of this pattern of stonewalling.
None of this is new, of course, it is instead part of a strategy that the White House has engaged in for the past two months to block legitimate Congressional inquiries. It is rooted, of course, in Trump’s vow to resist “all” subpoenas by House Democrats, a strategy that the White House has complied with in full to the point that even routine requests for cooperation from House committees that have been complied with in the past by both this Administration and those preceding it.
While it has been true that there have been fights between the Legislative and Executive Branches over some specific document or testimonial requests in the past, this blanket strategy of refusing to comply with any request from Congress is without precedent. I would call it Nixonian, but even Nixon didn’t stonewall Congress to this extent, and it is worth noting in that regard that Article III of the Articles of Impeachment that were approved by the House Judiciary Committee against President Nixon covered the President’s failure “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. ” This is the same pattern of behavior that the Trump Administration is engaging in.
They can, of course, hold McGahn in contempt, but this avenue is somewhat moot given the fact that the Justice Department will obviously choose not to prosecute any such contempt citation. Alternatively, they can go to Court seeking to compel McGahn’s appearance before the committee. More broadly, the Committee and Congress as a whole have the option of pursuing the ultimate sanction by opening an impeachment inquiry against the President notwithstanding the fact that neither public opinion nor the current makeup of the Senate, where any Articles of Impeachment would be tried, support such a move. As a political matter, I’ve noted that this is a strategy that Democrats ought to avoid, but at some point, it seems as if it will become the only option left for Congress to move forward with the investigations that it is Constitutionally entitled and obligated to undertake.
Here’s the memorandum from the Department of Justice’s Office of Legal Counsel regarding McGahn’s testimony:
Memo From DoJ Office of Leg… by on Scribd
