Obstruction of justice in plain sight: Trump orders Don McGahn to defy congressional subpoena (Updated)

President Trump on Monday directed his former White House counsel, Donald F. McGahn II – now a private citizen – to defy a congressional subpoena and skip a hearing scheduled for Tuesday, denying House Democrats testimony from the most important eyewitnesses to Mr. Trump’s attempts to obstruct justice in the Russia investigation. Trump Instructs McGahn to Defy Subpoena and Skip House Testimony:

The House Judiciary Committee had subpoenaed Mr. McGahn to appear. The White House, though, presented Mr. McGahn and the committee with a 15-page legal opinion from the Justice Department stating that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”

“Because of this constitutional immunity, and in order to protect the prerogatives of the office of the presidency, the president has directed Mr. McGahn not to appear at the Committee’s scheduled hearing on Tuesday,” Pat A. Cipollone, the current White House counsel, wrote in a letter to the Judiciary Committee.

I note at the outset the DOJ opinion relies almost exclusively on Office of Legal Counsel (OLC) opinions and memorandums to make the assertion that “While the Executive Branch has asserted for 75 years that senior presidential advisers may decline to testify before Congress, and has formally asserted an immunity for nearly 50 years, neither the Supreme Court nor any court of appeals has specifically addressed the question.” [Page 9].

DOJ asserts, “Only one district court has ever addressed the testimonial immunity of the president’s senior advisers, and that decision did not come until 2008. See Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d. 53 (D.D.D.C 2008). Although the district court held that presidential advisers were not entitled to absolute immunity from compelled congressional testimony, the court of appeals stayed that decision pending appeal, and the parties settled without any appellate decision on the merits.” [Page 9].

The DOJ opinion then claims that the president’s senior advisers are not bound by this district court opinion, and asserts an expansive “absolute” immunity.

(Note: Harriet Miers was White House Counsel to George W. Bush from 2005 to 2007.)

This assertion is not accurate, and fails to address relevant case law, in particular with respect to the White House Counsel, whose client is the office of the presidency, not the individual serving as president.

• • In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied sub. nom. (The Office of Independent Counsel (OIC) appealed from an order of the District Court denying the OIC’s motion to compel the production of documents subpoenaed by a federal grand jury.  The appellate court reversed and remanded.)
  • In re Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S. 996 (1998) (White House attorney may not invoke attorney-client privilege in response to grand jury subpoena seeking information on possible commission of federal crimes).
  • In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (deliberative process privilege is a common law agency privilege which is easily overcome by showing of need by an investigating body).
  • Office of the President v. Office of the Independent Counsel, 521 U.S. 1105 (1997) (claims of first lady of work product immunity with respect to notes taken by white house counsel attorneys rejected as inapplicable because the possibility of a congressional investigation did not satisfy the element of anticipation of litigation and trial).

Congress has subpoenaed documents and attorney work product (lawyer notes) of Don McGahn that he produced to the Special Counsel and to the grand jury, and for which the White House expressly waived any claim of privilege. The Mueller report extensively discloses McGahn’s notes of conversations with the president and others, thus destroying any claim of privilege over those publicly disclosed conversations or documents.

The legal basis for Congress’s right to refuse to recognize assertions of attorney-client privilege comes from its inherent constitutional authority to investigate and the constitutional authority of each chamber to determine the rules of its proceedings, under U.S.Const., Art.I, sec.5, cl.2. See, Common Law Privileges Available in Court Do Not Shield Witnesses from Complying with Committee Information Demands.

Trump lawyers are also asserting the bonkers theory that Congress does not have inherent constitutional authority to investigate the executive branch. This is unsupported at law, in practice, or history, and is made in bad faith.

The Times continues:

Mr. McGahn now technically faces a choice over whether to show up to the hearing and parry questions from Democrats or skip the session altogether. But Mr. McGahn has maintained throughout that he will follow the White House’s guidance, according to a person close to him.

The article, Common Law Privileges Available in Court Do Not Shield Witnesses from Complying with Committee Information Demands (citations omitted), addresses this issue:

In the absence of a definitive court ruling, the Legal Ethics Committee of the District of Columbia Bar issued an advisory opinion in February 1999. It directly addressed the limits of an attorney’s ethical duty of confidentiality to a client when the attorney is faced with a congressional subpoena for documents that would reveal client confidences. The opinion urges attorneys to press every appropriate objection to the subpoena until no further avenues of appeal are available, and even suggests that clients might be advised to retain other counsel to file a separate lawsuit to prevent compliance with the subpoena. But it does allow the attorney to relent and comply with the subpoena at the earliest point when he or she is in danger of being held in criminal contempt of Congress.

According to the D.C. Bar’s ethics committee, an attorney acting under the D.C. Code of Professional Conduct facing a congressional subpoena that would reveal client confidences or secrets must “seek to quash or limit the subpoena on all available legitimate grounds to protect confidential documents and client secrets.”

If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents. A directive of a Congressional subcommittee accompanied by a threat of fines and imprisonment pursuant to federal criminal law satisfies the standard of ‘required by law’ as that phrase is used in D.C. Rule of Professional Conduct 1.6(d)(2)(A).

The opinion represents the first and thus far the only bar in the nation to directly and definitively address this question.

If Don McGahn fails to respond to the subpoena, Congress should hold him in criminal contempt (and it can do so under its inherent power of contempt rather than proceed through delay in court). At that point, Don McGahn may produce the documents requested and testify.

Don McGahn should be a patriot and do his duty to comply with the subpoena. This is his Profiles in Courage moment.

The Times continues:

At the same time, if he defies the White House, Mr. McGahn could not only damage his own career in Republican politics but also put his law firm, Jones Day, at risk of having the president urge his allies to withhold their business. The firm’s Washington practice is closely affiliated with the party.

This is otherwise known as witness intimidation and constitutes obstruction of justice.

Even if Mr. McGahn, like Harriet Miers before him, ultimately does have to appear before Congress, the separate issue would remain of whether he could rely on a claim of executive privilege by Mr. Trump to avoid answering questions about his communications with the president — even though the Trump administration already disclosed the substance of those talks by making the Mueller report public.

No, McGahn cannot assert executive privilege. See, In Re Lindsey.  Moreover, there is the The Crime-Fraud Exception to the assertion of privilege, and the Mueller Report details ten factual situations of obstruction of justice — a crime — that relied heavily on evidence provided by Don McGahn.

There are now more than 900 former federal prosecutors who have signed onto the Statement by Former Federal Prosecutors which asserts that:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

Finally, House Speaker Nancy Pelosi needs to relent and seat a select committee for impeachment. This enhances the power of Congress to investigate and affords it greater deference from the courts in lawsuits.

UPDATE: House Judiciary Chairman Jerry Nadler has sent a letter to Don McGahn Monday warning he’d use “all enforcement mechanisms” to compel him to testify. Nadler’s letter correctly emphasizes (excerpts, citations omitted):

First, although the Justice Department’s Office of Legal Counsel (OLC) has produced an opinion purporting to excuse you from testifying, the opinion has no support in relevant case law, and its arguments have been flatly rejected by the courts. As Judge Bates previously explained, the notion that a former White House Counsel is ‘absolutely immune” from a congressional subpoena has been “virtually foreclosed by the Supreme Court,” which held several decades ago that senior White House aids do not enjoy such immunity even from civil damage suits. OLC’s most recent opinion — which relies almost entirely on its own prior opinions — offers no persuasive reasoning for distinguishing Judge Bate’s ruling or relevant Supreme Court case law.

Second, the Justice Department’s own longstanding policy is that “executive privilege … should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers.” Tellingly, the Department’s opinion ignores that policy entirely. … Despite the Department’s apparent efforts to catalogue every instance in which a White House aid has refused to testify before Congress, the Department can cite no example where Congress planned to ask the White House aid about possible crimes committed by the President. Perhaps that is because — until now — no President would have engaged in such a transparent effort to block his own formr aids from testifying about the President’s misconduct.

The third and fourth points are that the president has not invoked executive privilege, but asserts the “erroneous” view that McGahn has immunity and is “not legally required to appear and testify.” The fifth point is that McGahn is precluded from asserting attorney-client privilege under In Re Lindsey (above).

Nevertheless, Former White House counsel Don McGahn did not attend his House hearing. The hearing happened anyway.

“Our subpoenas are not optional,” Nadler said at Tuesday’s hearing. “Mr. McGahn has a legal obligation to be here for his scheduled appearance. If he does not immediately correct his mistake, this committee will have no choice but to enforce the subpoena against him.”

Nadler told CNN’s Chris Cuomo on Monday evening that if McGahn didn’t appear, “the first thing we’re going to have to do is hold McGahn in contempt.”

Nadler said Tuesday that he was prepare to go to court to obtain McGahn’s testimony.

Nadler also has the option of pursuing inherent contempt in the House.