President Trump’s attempt to stonewall investigations by House Democrats by preventing former aides such as White House counsel Don McGahn from testifying is an uphill legal battle.
The White House has signaled that it will assert executive privilege to block McGahn and others from testifying.
But Trump allowed McGahn to speak to special counsel Robert Mueller and permitted the release of the special counsel’s redacted report without asserting executive privilege, a decision that could make it hard to justify the new argument in court.
{mosads}“It’s unlikely that the White House would prevail in blocking any testimony of Don McGahn on the basis of executive privilege,” said Jonathan Turley, a George Washington University law professor who is a frequent contributor to The Hill.
“The problem for the White House is that the areas that Congress is most interested in were covered in detail by the special counsel,” Turley added.
Trump on Wednesday signaled he will take a hard line on all of the Democratic probes, vowing to reporters that he would fight “all the subpoenas” and saying he would take any effort to impeach him to the Supreme Court.
He cast Democrats as hopelessly mired in political games, arguing they were not after the truth.
“Look, these aren’t impartial people,” he said. “The Democrats are trying to win 2020. They’re not going to win with the people that I see, and they’re not going to win against me. The only way they can luck out is by constantly going after me on nonsense.”
Trump’s posture mirrors the hard-nosed legal strategies he employed during his business career.
And Trump’s team may not care if their legal argument ultimately falls in court if it ties up the Democratic oversight probes while drawing Democrats into a political fight that Republicans think they can win.
One former Trump White House official described it as an effort to “fight fire with fire” and turn Democrats’ tactics against them.
“These are political hearings,” the official said. “Trump got a legal and political colonoscopy by Mueller. If there was a ‘there’ there, we’d probably know about it. This is just Benghazi in reverse.”
Democrats are pressing for access to witnesses and documents related to Trump’s tax returns and financial records, White House security clearances and other matters, in addition to more information about the Russia investigation.
In seeking to block the McGahn subpoena on the basis of executive privilege, legal experts say the White House will likely argue Trump did not waive executive privilege when he allowed McGahn to speak with Mueller.
“Mueller is part of the executive branch and sharing information within the executive branch cannot waive the privilege,” said Sam Dewey, a former Republican congressional counsel and Washington-based lawyer.
Dewey said he believes the White House would have a good argument in court to distinguish between McGahn’s live testimony and his account as told by Mueller, but others say the decision to not make the privilege claim over Mueller’s report ahead of its publication is a big problem.
Attorney General William Barr even acknowledged the issue in remarks last Thursday before releasing the report.
“The office of the White House counsel requested the opportunity to review the redacted version of the report in order to advise the president on the potential invocation of privilege, which is consistent with long-standing practice,” Barr told reporters at a news conference.
“Following that review, 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,” Barr said.
Turley said it’s possible the White House could succeed in blocking some “undisclosed communications” between McGahn and Mueller but likely not those that are detailed in Mueller’s public report.
Seth Waxman, a former federal prosecutor and D.C.-based white collar criminal defense attorney, said there is a “strong argument” Trump waived executive privilege by allowing McGahn to speak with Mueller in the first place.
“They would have a difficult time successfully arguing executive privilege; however, it is something that could get tied up in the courts for a significant period of time,” Waxman said.
Any public testimony by McGahn could be explosive. Some say it could compare to the 1973 testimony of President Nixon’s former White House counsel, John Dean, who offered a damning account of the White House’s effort to cover up the Watergate burglary in televised hearing before a Senate panel.
McGahn and his lawyer have been publicly silent on the subpoena, but reports have indicated his attorney, William Burck, has been in discussions with the House Judiciary Committee regarding his possible testimony. Burck has not returned multiple requests for comment from The Hill since Monday.
A court struggle over whether McGahn’s testimony is protected by privilege could take months to resolve and potentially rise to the Supreme Court, though a judge could expedite the matter to resolve it more quickly than other disputes.
House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said Tuesday the White House’s chance to assert executive privilege to prevent the public from hearing McGahn’s testimony had “long passed” and described any effort to fight the subpoena as “one more act of obstruction by an administration desperate to prevent the public from talking about the president’s behavior.”
The White House on Tuesday blocked a former official from testifying in the House Oversight and Reform Committee’s sprawling probe into the administration’s security clearance process, triggering plans by Chairman Elijah Cummings (D-Md.) to hold the former official, Carl Kline, in contempt of Congress.
The White House has also denied the committee’s requests for files on specific individuals’ clearances and accused Democrats of overstepping their oversight powers.
Unlike the McGahn fight, Turley said it would be much easier for White House lawyers to slow down the clearance investigation to a “glacial pace” by making a number of separate privilege claims that would take a long time for the court to analyze.
“The White House may be successful in blocking some undisclosed communications, but it would likely be unsuccessful in blocking discussions of disclosures made in the special counsel’s report,” Turley said.
The Trump Organization also filed suit against an accounting firm seeking to quash a subpoena for eight years of Trump’s financial records, which Democrats are seeking in order to pursue allegations he exaggerated his wealth in order to obtain loans.
Trump also said he would challenge potential impeachment at the Supreme Court, even though there is little precedent to support the idea that the high court would rule on the proceedings.
Waxman noted that, historically, conflicts between the executive and legislative branches over witness testimony or documents have usually been worked out through agreement.
“Trump may be the first that simply stonewalls,” he said. “We’ve never really seen that happen to the degree that it may happen here.”