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Opinion A major impeachment development: Court may order McGahn’s testimony

Counsel Norman Eisen, left, speaks to House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.) during a break in testimony from former special counsel Robert S. Mueller III on Capitol Hill on July 24. (Andrew Harnik/AP)
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The Post reports:

The House Judiciary Committee asked a federal judge on Wednesday to compel testimony from former White House counsel Donald McGahn, whom lawmakers consider their “most important” witness in any potential impeachment proceeding against President Trump.
McGahn figured prominently in special counsel Robert S. Mueller III’s investigation of whether Trump obstructed justice during the Justice Department’s probe into Russian interference in the 2016 election. The committee subpoenaed him in April, but the White House blocked his testimony, claiming McGahn, who left the administration in October, had “absolute” immunity.
Lawyers for the committee’s Democrats call the claim “spurious” and say it has no grounding in case law.

Let’s be clear: This is part of an inquiry into impeachment. It’s right there in the complaint: “The Judiciary Committee is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel.” And in a letter to House Democrats, Speaker Nancy Pelosi (D-Calf.) praised this action, saying that it "follows the significant step taken last week when Chairman Jerry Nadler filed a petition to obtain the grand jury testimony underlying the Mueller report, for the House to ‘have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity — approval of articles of impeachment.’ No one is above the law.” Let’s dispense with the nonsense that Pelosi is still blocking impeachment. “That process is underway,” the complaint plainly states.

Harvard University professor Danielle Allen says it is wrong to discuss impeachment as a purely political question, not a legal, moral, or constitutional one. (Video: The Washington Post)

Although it is true that the House as a whole has not authorized impeachment, that is not a requirement for the Judiciary Committee to proceed. The lawsuit itself is a model of clarity. “In total, the [Mueller] Report provides evidence of ten separate episodes of potentially obstructive conduct by the President,” the complaint says. “As Special Counsel [Robert S.] Mueller [III] has emphasized, when a subject of an investigation obstructs that investigation or lies to investigators, it ‘strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.’ ”

From McGahn the committee hopes to get critical information directly bearing on the president’s alleged crimes:

The Report makes clear that McGahn witnessed multiple serious acts of potential obstruction of justice by the President—including demanding that McGahn himself have the Special Counsel removed and then create a false record to conceal the President’s obstructive conduct. Given his central role in these and other events outlined in the Report, McGahn is uniquely positioned to explain those events, bring additional misconduct to light, and provide evidence regarding the President’s intent.

Think of McGahn as a reluctant John Dean, the man who held the White House counsel role in the Nixon White House. McGahn has maintained that he does not want to be caught in the middle between the two branches of government, but there is no doubt he will comply with a court order to appear.

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The committee also outlines the flimsiness of the administration’s objections to McGahn’s appearance:

The President’s claim that McGahn is entitled to “absolute immunity” has no basis in law, and no court has ever accepted this type of blanket claim in response to a Congressional subpoena. McGahn thus must appear before the Judiciary Committee and answer all of its Members’ questions unless a valid basis for asserting executive privilege exists as to any specific matter. To date, the President has not formally attempted to invoke executive privilege. Moreover, by authorizing the public release of the Report and extensively commenting about its substance after its release, among other statements and actions, the President has waived any privilege about matters and information discussed in the Report.

The complaint goes on to recite key facts:

  • Trump’s campaign welcomed Russian interference and maintained ongoing, multifaceted contact with Russians (“The Report details well over 100 contacts between individuals associated with the Trump Campaign and Russian nationals or their agents during this period”).
  • Mueller’s report contains evidence of “ten separate episodes of potentially obstructive conduct by the President, ranging ‘from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation’: to demanding that McGahn create a false record; ‘to direct and indirect contacts with witnesses with the potential to influence their testimony’; to ‘encourage[ing] witnesses not to cooperate with the investigation.’”
  • The alleged actions were “'often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels.’ The most significant of these episodes, all of which McGahn directly witnessed or otherwise was involved in. ... ”
  • The most egregious actions included firing former FBI director James Comey; ordering McGahn to fire Mueller; demanding that McGahn create a false record to hide Trump’s order to fire Mueller; using McGahn and Cory Lewandowski to pressure former attorney general Jeff Sessions to unrecuse himself from the Russia investigation so as to curtail its scope; and attempting to limit or eliminate Paul Manafort’s cooperation with the government.

The complaint makes clear that McGahn is the key witness whose testimony is essential to determining whether there are grounds for impeachment. (Remember, McGahn has not contradicted anything in the Mueller report.)

The complaint also makes clear why the committee has engaged, since it served its original subpoena in late April, in extensive, laborious attempts to accommodate the White House’s concerns and to obtain the information by other means (e.g. trying to compel other witnesses’ testimony). This is critical because without this negotiation — about which many Democrats and pundits complained — the court constitutionally could and would not consider the case. (Courts don’t like to referee fights between the two other branches when they might resolve matters themselves.)

This case was filed as a “related case” with the same judge, Chief District Court Judge Beryl Howell, who is overseeing a separate filing asking for redactions to be removed from the Mueller report. In that latter case, Howell seems inclined to order the redactions removed. This assures that the judge with the most knowledge of the Mueller report will hear the case.

The prospects for success at the district court level are high, and may come more speedily than some have predicted. The judge should be able to decide forthwith if this is a related case and if the president’s absolute immunity and executive privilege arguments are sound. An appeal is sure to follow, and almost certainly consideration by the Supreme Court after that. Then the issue will be joined and the Supreme Court’s legitimacy will be tested: Can the president evade both prosecution and impeachment simply by stonewalling Congress? Nothing less than the principle of “no man is above the law” will be at stake.