In her speech on the House floor, Speaker Nancy Pelosi (D-Calif.) argued that central to Congress’s powers and obligations is “oversight of the executive branch and all of the areas essential to the well-being of the American people. ... To conduct that oversight, the Congress is both constitutionally obligated and legally entitled to access and review materials from the executive branch, which it can subpoena. Yet, the president and the administration have shown an unprecedented and unjustifiable refusal to furnish Congress with that information.” She concluded: “As members of Congress, we have a responsibility to honor our oath of office, strengthen the institution in which we serve for the people. We have a responsibility under the vision of our Founders and the text of the Constitution — ensure that the truth is known. No one is above the law.” Years from now, Republicans who have been opposing legitimate investigation into Trump’s criminality will be found entirely wanting — disturbing evidence of the dangers of elevating partisan tribalism over constitutional fidelity.
Now, Barr has begun to provide some documents — Robert S. Mueller III’s investigation files — so a court action against him will be suspended. The same should not be expected in McGahn’s case. “The Judiciary panel could move swiftly to ask a judge to order testimony from McGahn, who was a key witness in Mueller’s investigation into whether Trump obstructed justice during the probe,” The Post reports. “The committee could also petition a federal judge to release protected grand-jury materials gathered in the probe, which underpin many of the key sections that Justice Department officials redacted from Mueller’s report.”
To be clear, McGahn is not the problem here; it is the White House interposing itself between McGahn and the House that has caused the legal conflict. McGahn chooses to stay out of it, waiting for a court order that would presumably give him cover to testify about events that he witnessed and previously described to Mueller, an account that was documented in the obstruction-of-justice section of Mueller’s report.
Unlike expert witnesses who appeared on Monday before the Judiciary Committee, McGahn has direct knowledge of incidents in which Mueller found all elements for an obstruction charge. As Mueller said in his report, there was an obstructive act (instructing McGahn to fire Mueller based on a bogus conflict-of-interest charge already dismissed by Justice Department lawyers), a nexus to Mueller’s investigation (Trump tweeted his complaints about the investigation contemporaneously) and corrupt intent (“Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct — and, most immediately, to reports that the President was being investigated for potential obstruction of justice.”)
Hearing McGahn, the president’s chosen White House counsel, recollect Trump’s persistent orders and affirm that he was being told to get rid of the prosecutor precisely because Trump wanted the investigation to end would be powerful evidence of criminal conduct from an authoritative source. Sure, the information is in the Mueller report, but as we know, unless it is on TV the information lays dormant and lacks persuasive power.
Even more compelling, McGahn will be able to testify to the coverup of Trump’s order. Here, McGahn has told Mueller that Trump “through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel. Each time he was approached, McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed.” In addition, “The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel. McGahn refused and insisted his memory of the President’s direction to remove the Special Counsel was accurate. In that same meeting, the President challenged McGahn for taking notes of his discussions with the President and asked why he had told Special Counsel investigators that he had been directed to have the Special Counsel removed.” In other words, Trump attempted to drag McGahn into a conspiracy to cover up Trump’s misdeeds and bludgeoned him for keeping notes that undercut Trump’s false denial.
This was a classic case of witness intimidation and conspiracy to obstruct the investigation. (“The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.”) Mueller found, “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”
Telling the White House counsel to lie on one’s behalf in order to defeat an inquiry into his own wrongdoing is illegal conduct — even in Barr’s telling (at his confirmation hearing).
There is little wonder that the White House is raising all manner of spurious excuses to prevent a clear accounting of the president’s misconduct. We have reached the point where Trump is attempting to obstruct a House investigation into his attempt to obstruct Mueller’s investigation (telling McGahn to lie) of his obstruction (the attempt to fire Mueller). Got that?
The courts to date have rejected the Trump legal team’s frightful assertion of immunity from congressional investigation with regard to documents. In upholding the House’s ability to extract critical information from McGahn, the courts would be reinforcing the central premise of our legal system: No one is above the law.
The House cannot defend the Constitution all by itself. The courts must play their role, and now they will be presented with the opportunity to curtail a president whose conception of his own power is fundamentally at odds with our constitutional system.