Update to White House jeopardizes US national security with security clearances. The official at the center of the scandal:
Carl Kline, is a former Pentagon employee who was installed as director of the personnel security office in the Executive Office of the President in May 2017. Kushner’s was one of at least 30 cases in which Kline overruled career security experts and approved a top-secret clearance for incoming Trump officials despite unfavorable information, the two sources said. They said the number of rejections that were overruled was unprecedented — it had happened only once in the three years preceding Kline’s arrival.
The sources, who spoke on condition of anonymity because of the sensitive nature of the information, said the Trump White House attracted many people with untraditional backgrounds who had complicated financial and personal histories, some of which raised red flags.
The White House has instructed Karl Kline to not comply with a House Oversight Committee subpoena demanding his appearance for an interview, the latest move by the Trump administration to thwart Democratic-led investigations into all aspects of the presidency. White House tells official not to comply with Democratic subpoena over security clearances:
Kline’s attorney, Robert Driscoll, said his client would listen to his employer.
“With two masters from two equal branches of government, we will follow the instructions of the one that employs him,” Driscoll said in a separate letter obtained by CNN.
In a statement Tuesday, Cummings said the White House and Kline “now stand in open defiance of a duly authorized congressional subpoena with no assertion of any privilege of any kind by President Trump.”
“The White House claims that ‘under no circumstance’ will it provide to Congress any information about any specific White House employee — regardless of whether that employee lied to federal investigators about communicating with the Russians or continued working in the White House after the FBI reported derogatory information involving domestic violence.”
Cummings said he will consult with lawyers and committee members about “about scheduling a vote on contempt.”
Following Cummings’ statement Tuesday, Driscoll issued a response saying that the Maryland Democrat is “zealously playing the role he should in our constitutional system and we bear no ill will towards him.”
“We will continue to review the proceedings and make the best judgments we can,” Driscoll said.
House Oversight Committee Chairman Elijah Cummings (D-MD) on Tuesday dropped the hammer on White House official for defying House subpoena:
After Kline said he would take the White House’s advice and defy a congressional subpoena, Cummings said that he intends to schedule a vote to hold Kline in contempt of Congress.
“The White House and Mr. Kline now stand in open defiance of a duly authorized congressional subpoena with no assertion of any privilege of any kind by President Trump,” Cummings said. “Based on these actions, it appears that the president believes that the Constitution does not apply to his White House.”
See Chairman Cummings full letter. White House Orders Former Security Director to Defy Oversight Committee Subpoena.
House Judiciary Chairman Jerry Nadler on Monday subpoenaed former White House counsel Don McGahn as part of his panel’s obstruction investigation into President Donald Trump, demanding that McGahn testify in public on May 21. Democrats subpoena ex-White House counsel Don McGahn.
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. White House plans to fight House subpoena of former counsel Donald McGahn for testimony on Mueller report:
The Trump administration also plans to oppose other requests from House committees for the testimony of current and former aides about actions in the White House described in special counsel Robert S. Mueller III’s report, according to two people familiar with internal thinking who, like others interviewed for this story, spoke of the plans on the condition of anonymity.
White House lawyers plan to tell attorneys for administration witnesses called by the House that they will be asserting executive privilege over their testimony, officials said.
It’s too late to assert executive privilege, it was waived. White House staff were encouraged to cooperate with the Special Counsel’s investigation, and Trump did not assert executive privilege. “Attorney General William Barr indicated that White House counsel reviewed the redacted version of the Mueller report and that President Trump elected not to assert executive privilege.” On Mueller Report, Barr Says No Executive Privilege Redactions. But Look for Assertion Later. Further, Barr asserted that “no material has been redacted based on executive privilege.”
Jessica Marsden and Andy Wright explain at Just Security blog:
What’s more, executive privilege can be waived, and it is important to understand how waiver works given some of President Trump’s and his associates’ statements. Prior disclosure of potentially-privileged White House communications results in a waiver of privilege as to those communications. Thus, to the extent that President Trump has, in his tweets and media interviews, described internal White House conversations — such as those he had with former FBI director James Comey about the investigation into Michael Flynn — his administration can no longer assert executive privilege over those communications. In addition, privileges over testimony and evidence provided to Mueller by White House aides who spoke to law enforcement voluntarily outside the express authorization of the White House — and thus outside the scope of any agreement referenced by Giuliani — would likely be waived. In other words, their information would not be covered by the privilege if they decided to communicate with Mueller beyond what the White House authorized them to do.
Moreover, President Trump’s legal team has already conceded they have waived executive privilege over documents provided to Mueller. In a January 29, 2018 memorandum to Mueller, they asserted: “In an effort to provide complete transparency, the president waived the obviously applicable privileges where appropriate in order to allow both the Congress and the Special Counsel to see all relevant documents.”
There is also United States v. Nixon, 418 U.S. 683 (1974) — the Watergate tapes case — in which a unanimous Supreme Court held that a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial cannot override the needs of the judicial process if that claim is based, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality.
Moreover, there is no attorney-client privilege for White House Counsel Don McGahn. The United States Court of Appeals for the District of Columbia Circuit, in In re Bruce R. Lindsey, an opinion the Supreme Court declined to review, has definitively held there was no attorney-client privilege between White House Counsel and President Bill Clinton that would protect advice or documents in Ken Starr’s criminal investigation, because White House counsel are not personal lawyers to the President. The appeals court ruled that the primary duty of White House lawyers is to uphold the law, not to protect the president. Why President Trump Couldn’t Have Stopped the White House Counsel From Talking to the Mueller Investigation.
So Trump’s assertion of executive privilege, or other privileges, for anything disclosed by witnesses in the Mueller Report is without any legal basis and without merit.
The Washington Post reports that Trump says he is opposed to White House aides testifying to Congress, deepening power struggle with Hill:
President Trump on Tuesday said he is opposed to current and former White House aides providing testimony to congressional panels in the wake of the special counsel report, intensifying a power struggle between his administration and House Democrats.
In an interview with The Washington Post, Trump said that complying with congressional requests was unnecessary after the White House cooperated with special counsel Robert S. Mueller III’s probe of Russian interference and the president’s own conduct in office.
“There is no reason to go any further, and especially in Congress where it’s very partisan — obviously very partisan,” Trump said.
Trump’s comments came as the White House made it clear that it plans to broadly defy requests for information from Capitol Hill, moving the two branches of government closer to a constitutional collision.
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White House lawyers plan to tell attorneys for administration witnesses called by the House that they will be asserting executive privilege over their testimony, according to two officials familiar with internal plans who, like others interviewed for this story, spoke on the condition of anonymity.
In his interview with The Post, Trump maintained that the White House Counsel’s Office has not “made a final, final decision” about whether it will formally assert executive privilege and try to block congressional testimony. But he said he opposes cooperation with House Democrats, who he claimed are trying to score political points against him.
“I don’t want people testifying to a party, because that is what they’re doing if they do this,” Trump said.
The president said Democrats should be satisfied with what McGahn and other officials told Mueller, calling his decision to allow them to meet with federal investigators an act of transparency that made further congressional cooperation unreasonable.
“I allowed my lawyers and all the people to go and testify to Mueller — and you know how I feel about that whole group of people that did the Mueller report,” Trump said. “I was so transparent; they testified for so many hours. They have all of that information that’s been given.”
“I fully understood that at the beginning. I had my choice,” Trump added of his decision to allow his aides to testify as part of Mueller’s probe. “I could have taken the absolute opposite route.”
Richard Nixon engaged in “stonewalling” the Watergate prosecutors by resisting their subpoenas in court. But each time, Nixon lost his case in court, and he eventually complied with a lawful subpoena.
There is every reason to believe that the lawless Donald Trump, who has no respect for the rule of law or courts that rule against him, will defy a court compelling him to comply, as did President Andrew Jackson:
[I]n Cherokee Indians case, Worcester v. Georgia (1832), Chief Justice John Marshall infuriated Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties. Jackson is famous for having responded: “John Marshall has made his decision, now let him enforce it.” Although the comment is probably apocryphal, both Georgia and Jackson simply ignored the decision.
I agree with Josh Marshall at Talking Points Memo, the White House isn’t engaged in the usual “stonewalling.” “It’s more accurately characterized as massive resistance.” Trump and Massive Resistance:
The Congress has a constitutionally mandated responsibility to oversee the executive branch. They are flatly refusing to comply with ordinary document production and testimonial requests across the board. It’s not a difference of degree but of kind. In itself it is an impeachment worthy refusal to follow the constitutionally mandated framework of American government. It’s up to Democrats to make this clear.
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The Congress will also need to try out some of its almost never used powers to literally compel testimony and document production.
But as much as anything else this is a political conflict: how to bring to heel a lawless President. The big error I see so far is that these joustings are being treated as legitimate legal processes which must be allowed to work their way through conventional processes and the courts. That’s not right and it gives the President free rein to try to run out the clock on any sort of oversight. Democrats need to find a language for the political debate that makes clear these are not tedious legal processes which will run their course. They are active cover-ups and law breaking, ones that confirm the President’s bad acting status and add to his and his top advisors legal vulnerability.
This is exactly the same contempt of Congress that led to Articles of Impeachment, Article III against Richard Nixon:
In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed 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. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.
In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.
Wherefore, Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.
He does so because he is confident that sycophant Republican senators will excuse any criminal misconduct and never vote to convict him in an impeachment trial. Republican senators are giving Donald Trump license to engage in ongoing criminal misconduct and abuse of power with impunity.
The news media and the American public need to hammer Republican senators for their ethical and moral bankruptcy.