Trump White House Continues To Block Congressional Inquiries

In the latest example of the White House's ongoing effort to block Congress from exercising its duty to investigate the Executive Branch, the White House is blocking the former White House Counsel from testifying before Congress.

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

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    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.

    Which is why they need to start arresting the non-compliant. Seriously, just start hauling their asses away and let them sit without bail till the courts decide if Trump’s strategy is legal or not.

    The argument that it’s a little-used power and the precedent of taking this to the courts rather then Cell Block D is rooted in the logic that the WH is acting rationally under the law if not aggressively defiant. Trump and Co have shown they have no interest in precedent unless it binds their opponents hands and quite frankly feel free to flout Constitutional checks and balances at will. Some subpoenas can and should be fought but *all*, even down to the lowest flunkie or insignificant thing?

    He’s telling Congress they have no power over him and they should shut up and do as he says. He’s *daring* them to do something like the schoolyard bully he is. If they’re not man enough to impeach, then at least start slapping some cuffs on the recalcitrant bastards and them them ruminate from a cell. They owe democracy that much while they let it die with their cowardice.

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  2. Daryl and his brother Darryl says:

    Of course…because if you have nothing to hide, the proper course is to hide absolutely everything.
    It’s truly amazing the degree to which Baghdad Barr has completely whored himself out to this orange fuq-wad.
    Explain to me the logic that the President cannot commit a crime…but now we are going to investigate the former president for…wait for it…allegedly committing a crime?!?!?
    And meanwhile the Democrats are cowering in the corner while our system of government spirals into the abyss.

  3. Daryl and his brother Darryl says:

    Doug,
    IMHO…McGahn should be in jail by lunchtime, if he fails to appear. You or I would be.
    But if the DOJ isn’t going to act on Congressional Contempt…what alternatives are there?
    Subpoena means “under penalty”…but under penalty of what, exactly, if the DOJ is corrupt and is doing the Presidents bidding?

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  4. gVOR08 says:

    @Daryl and his brother Darryl: Hiding everything is the proper tactic, so as to not flag the thing you’re really trying to hide. But in Trump’s case. I suspect almost everything is incriminating and/or embarrassing.

    Explain to me the logic that the President cannot commit a crime…but now we are going to investigate the former president for…wait for it…allegedly committing a crime?!?!?

    I cannot. This mess flows from an opinion that the prez cannot be indicted. IANAL, but to a layperson that opinion is facially stupid. IIRC it has never been tested in court. You can pay a lawyer for an opinion whichever way you want. It may or may not stand up. There is a story that the lawyer who wrote the opinion called an aide to the AG to say he could go either way and asked which way he wanted it. This situation is freaking ridiculous.

  5. Kathy says:

    I must have missed the coronation of King Cheeto, First of that Name. Was it held at the National Cathedral, or at Trump Tower?

  6. KM says:

    @gVOR08:

    To be fair, I do understand the logic behind not wanting to push the boundaries on Presidential indictment / arrests. Thar be dragons in that uncharted land, indeed. Constitutional crisis are never good but neither is sticking your head in the sand to ignore the one brewing. Trump’s the kind of asshat who will keep pushing and pushing till it all breaks around him – he’s going to cause a crisis they can’t ignore simply by doing what he does.

    People are desperately trying to hold on to norms and the sanity that if they just ride this out, things will go back to normal. NO IT WON’T. Even if Trump’s out of office, his adoring cult persists, his appointed flunkies will still have office and we have no guarantee we won’t get someone just as bad or worse. Once the house is doused in gasoline, you are not safe even if the kid with the match wanders away. It soaks into the wood and furniture and you will forever be concerned you’ll go up in flames. Act like nothing’s happened and it definitely will.

    Too many rationalize letting Trump get away with things as protecting our system from a temporary aberration. A dangerous assumption, especially with the way the GOP is now. The precedent set now is the one the next criminal President will cite – and this one won’t be as dumb or incompetent.

  7. Paul L. says:

    Enjoy being on the other end of the same type of stonewall of documents as the Obama administration did with Fast and Furious and IRS targeting of Tea Party groups.

    Dismiss as Whataboutism.

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  8. michael reynold says:

    Look, it’s just how totally INNOCENT people behave: they fight tooth and nail to keep proof of their innocence from ever coming out.

  9. JKB says:

    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.

    How does permitting a close Presidential advisor speak with other Executive Branch employees as part of fully cooperating with an investigation equate to losing all objection to that person being subjected to questioning from the Legislative Branch? Even permitting the summary of Executive Branch conversations doesn’t waive any Executive privilege.

    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.

    That’s a lie. The small number of redactions are required by the laws passed by Congress. This minimum-required-by-law copy of the Mueller report has been available to key member of Congress but as of yet, no Democrats have availed themselves of the access.

  10. Daryl and his brother Darryl says:

    @Paul L.:

    Enjoy being on the other end of the same type of stonewall of documents as the Obama administration did with Fast and Furious and IRS targeting of Tea Party groups.

    So Paul…are you are saying that Fast and Furious and the IRS were all perfectly fine and so Dennison Obstructing Justice is perfectly fine?
    Or are you saying those things were fuqed up, so Dennison is entitled to do fuqed up things too?
    Your logic is just dumb.
    Beyond that your recollection of history is dumb; both F&F and the IRS were fully investigated by Congress. The HC on Oversight and Government Reform found nothing actionable. Holder appeared at 7 hearings on F&F alone. Seven, you dumb fuq. Nothing illegal was found. After two years on Congressional investigation, some supervisors were disciplined.
    You gotta stop harping on the same ol’ shit in order to defend your cult leader. It only serves to show what an ignoramus you are.

  11. grumpy realist says:

    @JKB: ….pretty obvious you haven’t studied law….

  12. Daryl and his brother Darryl says:

    @JKB:

    How does permitting a close Presidential advisor speak with other Executive Branch employees as part of fully cooperating with an investigation equate to losing all objection to that person being subjected to questioning from the Legislative Branch?

    You apparently have an infinitesimally small knowledge re: Executive Privilege, which I guess explains your rabidly held opinion re: Executive Privilege.

    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.
    That’s a lie.

    No…that is exactly what has happened.
    Unless you can provide a link that somehow proves that the Administration has made a full un-redacted copy of the SC report to Congress…you should just STFU, because clearly you don’t have a clue.

  13. Paul L. says:

    both F&F and the IRS were fully investigated by Congress.

    Nope. Obama used Executive privilege to stonewall and run out the clock.
    The IRS just stonewalled using Taxpayer Privacy and destroyed the evidence.

  14. DrDaveT says:

    @Paul L.:

    the same type of stonewall of documents as the Obama administration did with […] IRS targeting of Tea Party groups

    You mean, the ‘stonewall’ in which the IRS released literally millions of subpoena’d documents (which they had to individually redact, as required by law) at ludicrous taxpayer expense and disruption to normal IRS operations, in order to show that in fact everyone was basically doing their jobs correctly? The ‘stonewall’ in which IRS personnel testified endlessly at Congressional hearings? That ‘stonewall’?

    Does it physically hurt to be that stupid, or is it all kind of numb?

  15. Daryl and his brother Darryl says:

    @Paul L.:

    Nope. Obama used Executive privilege to stonewall and run out the clock.

    Dude…you are delusional. Run out the clock to what?
    Republicans investigated for two years and in the end singled out 5 ATF Supervisors.
    The OIG investigation found no evidence that higher officials at the Justice Department in Washington had authorized or approved of the tactics used in the Fast and Furious investigations, it did fault 14 lower officials for related failures.
    Seriously. Get some professional help, before Republicans completely dismantle Obamacare and you can no longer afford professional help.

  16. An Interested Party says:

    Was it held at the National Cathedral, or at Trump Tower?

    No, at a strip mall in West Virginia…