The Post reports, “The White House plans to fight a subpoena issued by the House Judiciary Committee for former White House counsel Donald McGahn to testify, according to people familiar with the matter, setting up another showdown in the aftermath of the special counsel report.”
This comes at the same time that Treasury Secretary Steven Mnuchin is sailing past another deadline imposed by the House Ways and Means Committee to turn over six years of President Trump’s tax returns, required under a statute directing that the Internal Revenue Service “shall” produce tax returns requested by the Ways and Means chairman.
To complete the trifecta of imperious disregard for Congress, another witness might defy a subpoena. The Post reports:
The House Oversight Committee moved Tuesday to hold a former White House personnel security director in contempt of Congress for failing to appear at a hearing investigating alleged lapses in White House security clearance procedures.
Rep. Elijah E. Cummings (D-Md.), chairman of the House Oversight Committee, said he would consult with the House counsel and members of the panel about scheduling a vote on contempt for former White House personnel security director Carl Kline. At the instruction of the White House, Kline failed to show up for scheduled testimony on security clearances.
The move marks a dramatic escalation of tensions between Congress and the Trump White House, which is increasingly resisting requests for information from Capitol Hill.
To remove any doubt, Trump told The Post he opposes letting his aides testify. In essence, he opposes our constitutional system.
These actions amount to blatant stonewalling and reflect a mind-set of utter disregard of legal process. Defiance of legal process now is the modus operandi of a lawless administration.
With regard to McGahn, House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.) is having none of the White House’s delaying tactics. “The Committee has served a valid subpoena to Mr. McGahn,” Nadler recounted in a written statement. “We have asked him to supply documents to the Committee by May 7 and to testify here on May 21. Our request covers the subjects described by Mr. McGahn to the Special Counsel, and described by Special Counsel Mueller to the American public in his report.” He continued that “for the White House to assert some privilege to prevent this testimony from being heard has long since passed.” He adds, “I suspect that President Trump and his attorneys know this to be true as a matter of law—and that this evening’s reports, if accurate, represent one more act of obstruction by an Administration desperate to prevent the public from talking about the President’s behavior.” He concludes,“The Committee’s subpoena stands. I look forward to Mr. McGahn’s testimony.”
Nadler is on firm legal ground. I asked constitutional scholar Larry Tribe if the ship had sailed on raising executive privilege. “That ship sailed — and came ashore on a coast Trump evidently finds hostile,” he says. “But executive privilege do-overs aren’t allowed. And there’s no attorney-client privilege here because McGahn as White House Counsel wasn’t Trump’s attorney; he was representing the United States Government and the presidency.” He adds, “There is thus no legal basis for Trump or his attorneys, or the current White House Counsel, to stop McGahn or shape or shave his testimony.” He adds that raising such a half-baked excuse “could plausibly be deemed yet more obstruction of justice by a president without respect for truth and desperate to be seen as a winner.”
Justice Department veterans agree. “They have waived the privilege by allowing him to testify and I think it’s important to note that even on the substance I think it’s completely meritless,” former federal prosecutor Mimi Rocah tells me. “Ordering someone to fire an investigator to stop an investigation and then to lie about it is not covered by executive privilege." Likewise, former Justice Department spokesman Matthew Miller says: “It’s a real stretch for the White House to assert executive privilege given that McGahn has already testified on these events and his testimony has been made public. This is more about delay than any real chance of success, and if McGahn wants to do the right thing, he’ll ignore the White House and testify. They can’t stop him. “
Trump’s brazenness is the natural result of his party’s refusal to defend the rule of law. They indulge him, his conduct gets worse and the cycle repeats.
This is a snippet of coming attractions should, God forbid, Trump be reelected. Freed from the prospect of another election and vindicated by reelection, a second Trump term could well devolve into an anti-constitutional nightmare. Voters have been forewarned.