House Judiciary Committee chairman Jerrold Nadler (D-NY) issued a subpoena to former White House Counsel Don McGahn for documents he provided to the Special Counsel — his response is due today — and for his testimony related to the committee’s obstruction of justice investigation, setting a May 21 hearing date.
CNN reports that the White House has directed Don McGahn not to comply with the subpoena for documents from the House Judiciary Committee today, the latest in a series of ongoing obstruction of justice by the Trump administration pursuant to it’s policy of “total obstruction” of Congress. White House instructs McGahn not to comply with Democrats’ subpoena:
McGahn’s decision not to comply with the subpoena could push Nadler to hold McGahn in contempt of Congress, just as he’s moving to do with Attorney General William Barr after the Justice Department defied a subpoena for the unredacted Mueller report and underlying evidence.
McGahn’s attorney William Burck told Nadler in a letter Tuesday that McGahn was deferring to the White House’s position that it maintains control of the documents Nadler had set a Tuesday deadline for McGahn to turn over.
“Here, the Committee seeks to compel Mr. McGahn to produce White House documents the Executive Branch has directed that he not produce,” Burck wrote. “Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the Committee and the Executive Branch can reach an accommodation.”
White House Counsel Pat Cipollone wrote to Nadler Tuesday directing the committee to request the documents from the White House, and not McGahn.
“Because Mr. McGahn does not have the legal right to disclose these documents to third parties, I would ask the Committee to direct any request for such records to the White House, the appropriate legal custodian,” Cipollone wrote. “The Acting Chief of Staff to the President, Mick Mulvaney, has directed Mr. McGahn not to produce these White House records in response to the Committee’s April 22 subpoena.”
Cipollone added that the documents in question were still protected by executive privilege “because they implicate significant Executive Branch confidentiality interests.”
The White House has not invoked executive privilege over the material, however.
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House Democrats have argued that McGahn and other former White House officials have waived executive privilege by speaking to Mueller’s team. Nadler also says that the documents he’s seeking are not covered by executive privilege because they were turned over to attorneys outside the White House.
But the White House counsel’s office has countered that it still has the right to invoke executive privilege with respect to congressional investigations, arguing that waiving executive privilege for Mueller’s criminal investigation is not the same thing as doing so for a separate branch of government.
While the White House said it would not allow McGahn to turn over documents, the White House has not relayed its position on whether it would seek to block McGahn’s testimony, too, according to a person familiar with the matter.
CNN earlier reported Trump says McGahn should not testify before Congress:
“I’ve had him testifying already for 30 hours and it’s really — so I don’t think I can let him and then tell everybody else you can’t, ” Trump said Thursday. “Especially him, because he was a counsel, so they’ve testified for many hours, all of them, many, many, many people. I can’t say, ‘Well, one can and the others can’t.’ I would say it’s done.”
Jonathan Shaub at Lawfare Blog explains in detail Executive Privilege and Compelled Testimony of Presidential Advisers: Don McGahn’s Dilemma (excerpts):
[Don] McGahn thus faces a dilemma. As “one person close to McGahn” told the Washington Post, “He’s not eager to testify. He’s not reluctant. He got a subpoena. It compels him to testify. But there are some countervailing legal reasons that might prevent that.”
The only “countervailing legal reason” identified is executive privilege, which the administration reportedly plans to invoke over McGahn’s testimony. McGahn’s dilemma raises several interesting legal questions about executive privilege and the compelled congressional testimony of senior presidential advisers that the courts have only seldom, if ever, addressed.
First, no matter how McGahn, Congress or the press frames the issue, the choice of what to do will ultimately be McGahn’s. Reports suggest he “has expressed frustration” about the situation, and his attorney is “trying to help him navigate the difficult situation of being pulled by two branches of government.”
There is no doubt that he will be asked to testify about his personal interactions and conversations with the president—communications that the Supreme Court has expressly recognized as protected by executive privilege. If the White House decides to object to his testimony on the basis of executive privilege (or to his attendance on the basis of immunity, as described below), it could take one of two actions. It could direct McGahn not to answer questions or, if immunity is the claim, not to attend the hearing. Or it could indicate that there are executive privilege issues the president is still considering and request that McGahn refrain from answering any question that may implicate confidential information until the president has had an opportunity to decide whether to assert privilege … the “President owns” the privilege and indicating that she would “need to consult with the White House” before disclosing any privileged information.
As former White House and congressional lawyer Andy Wright ably explained with respect to the dispute between Sally Yates and the administration, “the White House does not have effective control” of former officials who are set to testify. The administration faced the same problem when former FBI Director Comey agreed to testify voluntarily … Former officials are not formally subject to the direction of the president or other superior executive branch officials, nor are they are subject to termination for defiance of a superior’s order. As a result, it is not at all clear that the executive branch has authority to control their speech, particularly considering the potential First Amendment implications. Moreover, when testimony is not voluntary but compelled by a subpoena, the former official may feel obligated to respond because the official lacks a countermanding direction by a superior officer not to comply.
[T]he executive branch can thus cite the privileges and even purport to direct a former official to adhere to them. And, in its view, it has the authority to issue such directions. But compliance is not assured. Nor is the direction certain to hold up in any subsequent judicial proceedings.
The executive branch’s legal authority is even weaker if the president has not invoked his constitutional authority expressly by asserting executive privilege or claiming immunity [as in this case]. The only real way to ensure compliance by a former official would be to ask a court to enjoin the testimony. The Department of Justice has taken this approach only once, when Congress attempted to get national security information from AT&T: The department sued AT&T asking the court to enter an injunction against AT&T prohibiting compliance with the subpoena … But the Justice Department has not filed such an action since, certainly not against an individual.
In the end, then, McGahn will decide what to do, not the White House.
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Has Executive Privilege Been Waived?
First ‘Waiver’: Allowing McGahn to Testify
In a memorandum Trump’s personal attorneys sent to Mueller on Jan. 29, 2018, they indicated the president would “waive the obviously applicable privileges where appropriate” and allow the special counsel’s office to interview close presidential advisers in the course of its obstruction investigation. They did so, it appears, in order to bolster their legal argument that Trump himself need not testify because any information he could convey would now be “practically available from another source.” Accordingly, Trump allowed McGahn to testify for over 30 hours about confidential conversations, “waiving” any potential executive privilege.
“Waiver” in this context, however, means only that the president allowed McGahn to talk to the special counsel … An invocation of executive privilege is neither necessary nor relevant to intrabranch disclosures … The president did not need to “invoke” executive privilege; he simply could have directed McGahn not to testify or not to provide particular information.
[D]oes Trump’s decision not to prevent McGahn from testifying “waive” his ability to assert executive privilege later? In other circumstances, the answer would be yes; the voluntarily disclosure of privileged information to an outside party serves to “waive” the privilege entirely, meaning the privilege holders may no longer claim the privilege to prevent its disclosure. For example, disclosure to an outside party of information protected by attorney-client privilege waives the privilege for not only the information disclosed but also “to all other communications relating to the same subject.” And an individual who begins to answer questions on a particular subject without invoking her Fifth Amendment right against self-incrimination may waive her ability to claim the privilege in response to questions on that subject matter.
But such a broad waiver doctrine has never been applied to information protected by executive privilege; instead, it has been repeatedly rejected in this context, both by past administrations and by the judiciary. As an initial matter, there likely has been no waiver because McGahn did not disclose information to an “outside party”; his was an intrabranch disclosure. Under the executive branch’s understanding of executive privilege, the president maintains control of the dissemination of this information, both within and outside of, the executive branch. Thus, even if the president allowed McGahn to disclose to the special counsel information that falls within the scope of executive privilege, the president retains the constitutional authority, discussed below, to prevent that material from being disclosed further or released to Congress.
OLC previously addressed a similar situation, concluding that the president could assert executive privilege over information gathered by Special Counsel Patrick Fitzgerald in the course of his investigation into the disclosure of Valerie Plame Wilson’s identity …The OLC opinion argues that “[w]ere future presidents, vice presidents or White House staff to perceive that such voluntary cooperation would create records that would likely be made available to Congress (and then possibly disclosed publicly outside of judicial proceedings such as a trial), there would be an unacceptable risk that such knowledge could adversely impact their willingness to cooperate fully and candidly in a voluntary interview.”
[O]ne note of caution, however. An intraagency disclosure could in effect “waive” executive privilege by undermining the executive branch’s interest in confidentiality. Executive privilege is a qualified privilege, and each attorney general opinion justifying the assertion of the privilege balances the executive branch’s need for confidentiality against Congress’s need for the information. If a disclosure is so extensive that it destroys the confidentiality of information, then the executive branch’s constitutional interests protected by executive privilege are no longer applicable and the balance favors disclosure to Congress. In other words, executive privilege only protects confidential information; once the information has been disclosed widely, it is no longer a candidate for an assertion of executive privilege. As preeminent constitutional law scholar Alexander Bickel put it during the Watergate controversy, “the issue is not whether the President has waived his privilege … if a document or a tape is no longer confidential because it has been made public, it would be nonsense to claim that it is privileged.”
Here, however, there is no indication that McGahn’s testimony was distributed beyond the special counsel’s office and other select officials at the Department of Justice. Nor would have the administration expected wide disclosure of his testimony at the time. Prior to the release of the report, there were reports of what McGahn had said, but the testimony remained confidential.
Second ‘Waiver’: Disclosure of the Mueller Report
At Barr’s press conference just prior to the release of the Mueller report on April 18, Barr said that “the President confirmed that, in the interests of transparency and full disclosure to the American people, he would not assert privilege over the Special Counsel’s report…. Accordingly, the public report I am releasing today contains redactions only for the four categories that I previously outlined, and no material has been redacted based on executive privilege.”
[T]wo things are particularly important about Barr’s statement. One, Barr states that the president was not asserting privilege over the “report”; he did not make any statements about the underlying information collected by the special counsel but not included in the report. Two, he noted that no material had been redacted “based on executive privilege.” The Justice Department has long taken the position, spelled out in a 1989 memo issued by Barr when he was the head of OLC, that the president need not assert executive privilege “except in response to a lawful subpoena.” … The fact that no redactions were “based on executive privilege” at the time Barr made the report public does not mean the president has “waived” his ability to assert executive privilege over the material that has not yet become public. In the executive branch’s view, when Barr released the redacted report, executive privilege had not yet become relevant for the redacted material because Congress had not yet subpoenaed that material—and the executive branch generally will not decide whether or not to assert executive privilege until a contempt vote for noncompliance with the subpoena has been scheduled … Now that Barr has refused to comply with the House judiciary committee’s subpoena for the full unredacted report and underlying materials, the committee may consider contempt. If they do, an assertion of executive privilege remains viable under executive branch doctrine.
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But unlike the disclosure to an outside party of attorney-client information, the disclosure of some information protected by executive privilege does not waive the privilege for related materials. The most forceful statement of this position occurs in an opinion by the U.S. Court of Appeals for the D.C. Circuit addressing whether the now defunct office of the independent counsel could enforce a subpoena seeking documents from the White House counsel’s office. Similar to what has occurred here, the White House counsel had released a final report about its investigation into former Agriculture Secretary Mike Espy, but claimed that the documents generated in the course of producing that report remained privileged. The court agreed, distinguishing the waiver doctrine applicable to attorney-client privilege and opining that such an “all-or-nothing approach has not been adopted with regard to executive privileges generally.” Instead, “release of a document only waives these privileges for the document or information specifically released, and not for related materials.”
During the Watergate disputes, the D.C. Circuit reached a similar conclusion, holding that President Nixon had not waived his ability to assert executive privilege over the tape recordings of his conversations with advisers even though he had stated explicitly, as did the White House here, that executive privilege would not be invoked to prevent their testimony to the special counsel. And OLC has also reiterated that position, relying on those cases and others, in the context of an executive privilege claim.
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In short, substantial precedent—both judicial and from past administrations—establishes that a disclosure of material to Congress or to the public “waives” executive privilege only as to that specific information disclosed. The public release of the report thus likely waived executive privilege only as to the specific aspects of McGahn’s testimony explicitly contained in the report. Additional context for or further details about the testimony he provided or the events he described to the special counsel’s office would remain protected by executive privilege, assuming the information fits within the scope of the privilege. According to the D.C. Circuit, waivers of executive privilege “should not be lightly inferred,” in part, because doing so would discourage the government from disclosing any information for fear of waiving potential privilege claims over related information.
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In fact, according to executive branch doctrine, and contrary to the suggestion of some of the reporting on McGahn, the disclosure of some information does not weaken a later assertion of executive privilege over related information but strengthens it. Giving Congress some information, such as the redacted Mueller report, arguably satisfies its informational needs, at least for the most part. Because executive privilege is a qualified privilege, that disclosure in turn makes it more difficult for Congress to demonstrate that it still has a legitimate need for the specific information not released and that any such need is sufficiently important to outweigh the executive branch’s need to preserve confidentiality.
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If Executive Privilege Has Not Been Waived, Can McGahn Refuse to Appear?
Based on the above precedent, McGahn and his attorney could reasonably agree with the White House that at least some aspects of his testimony continue to be protected by executive privilege under existing executive branch doctrine. Specifically, any otherwise privileged information that is not expressly disclosed in the report remains subject to an assertion of executive privilege.
But could they then conclude—based on that fact alone—that he does not have to show up for the hearing at all? Probably not. If the only issue is executive privilege, then the traditional practice would be to attend the hearing but decline to respond to any questions that implicate executive privilege … [D]eclining to show up at all in defiance of the subpoena would not advance any constitutional interest in confidentiality that could not also be protected by appearing and invoking privilege.
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Perhaps McGahn or the administration will seek to argue that noncompliance here would be acceptable because all of the subject areas potentially implicate executive privilege. But that would be a novel position, and one that would be difficult to defend. The breadth of the subject matters listed in the subpoena, and the amount of information about those subjects that has already been released—effectively mooting executive privilege for that specific information—makes it quite possible to imagine a number of questions to which he could respond, consistent with executive privilege.
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Executive privilege is not the only doctrine relevant, here, however. A related doctrine—the immunity of senior presidential advisers—could provide McGahn with a legal rationale and historical precedent for refusing to comply with the subpoena. Barr appeared to reference this doctrine in his testimony before the Senate Judiciary Committee, asserting he would object to McGahn testifying because McGahn is a “close adviser to the president,” but that the decision was ultimately the president’s to make.
On at least three occasions, the Justice Department has opined publicly that the counsel to the president is immune from compelled congressional testimony—twoopinions during the Clinton administration and another during the George W. Bush administration. The third opinion, addressing a subpoena to Harriet Miers, concluded that Miers’s status as a former counsel did not alter the analysis.
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The fact that this position has been asserted by administrations of both parties does not, of course, make it valid. Indeed, the only court to have addressed a claim of presidential adviser immunity has resoundingly rejected both the claimed absolute immunity and a qualified immunity. But the 2014 OLC opinion makes it clear the executive branch does not accept the analysis in that nonprecedential decision. Thus, the administration and McGahn may decide to claim immunity, particularly given the unlikelihood that the resulting court dispute, and its appeals, would be resolved quickly.
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The White House thus does have a path—and one based on precedents from administrations of both parties—to instruct McGahn not to appear at all before the House committee. Immunity was the difference between Harriet Miers and Sara Taylor when they were subpoenaed to testify about the firing of U.S. attorneys: Miers did not appear at all in accordance with the 2008 OLC opinion and the White House’s instruction on immunity. But Taylor did appear, as required by the subpoena, and simply declined to answer numerous questions, citing the White House’s direction on executive privilege.
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Whether such an immunity claim would withstand judicial scrutiny is not clear. As noted, one court has already rejected it. And it seems somewhat unlikely that the courts would accept an absolute privilege of immunity given that even executive privilege itself is only a qualified privilege.
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As I and a number of others have explained in recent days, the chances of this or other congressional oversight subpoena disputes being resolved by an appellate court before the next election are slim. So the executive branch view may again prevail by default. Whether McGahn’s dilemma is resolved in this way or another, it further illustrates the current imbalance of power between the branches. And, despite some suggestions to the contrary, that is not wholly the result of decisions by this particular administration. It has been evolving over a much longer period of time.
So the Tump strategy is: (1) total obstruction of Congress, (2) tie it up in the courts with dilatory legal actions, and (3) run out the clock to the next election.