Jurisprudence

What Congress Should Do Next With the Mueller Report

Don McGahn on Capitol Hill on Sep. 6, 2018.
Then–White House counsel Don McGahn on Capitol Hill on Sept. 6, 2018.
Drew Angerer/Getty Images

Finally, the American people have heard from Robert Mueller. Now it’s time we hear from former White House counsel Donald McGahn II and other eyewitnesses to President Donald Trump’s most blatant attempt at obstruction of justice, as laid out by the special counsel in the 448-page document released on Thursday.

The ball is in congressional Democrats’ court. House Speaker Nancy Pelosi, House Judiciary Committee Chair Jerrold Nadler, and other members of the lower-chamber majority will ultimately face a difficult decision as to whether they should move forward with a bill of impeachment against the president.

The game plan for House Democrats, however, is—or should be—rather obvious, beginning with Nadler’s decision on Friday to issue a subpoena to Attorney General William Barr for the full Mueller report and all underlying material. Second, Democrats should zero in on the most damaging details of the special counsel’s report, which can be found in pages 113–120 of the second volume. There are lots of embarrassing revelations across Mueller’s two volumes and four appendices, but none so serious as what the special counsel churns up in that eight-page span, covering Trump’s response to public revelations that he had ordered White House counsel Don McGahn to fire Mueller.

Third, the scandal needs a name. Call it “Counselgate,” which more or less sums it up: The president ordered the White House counsel to fire the special counsel, and then ordered the White House counsel and other underlings to create a fake paper trail to cover up the initial order.

Fourth, the scandal needs a face, and it has one: Don McGahn, the longtime Republican Party operative who spent 21 tempestuous months as Trump’s White House counsel. The closest historical analogue to McGahn is John Dean, who was White House counsel under Nixon before becoming a star Watergate witness. But unlike Dean, who pleaded guilty to one count of obstruction of justice, McGahn appears to have kept his hands clean and so won’t have his integrity clouded by a felony conviction.

Finally, the scandal needs a main event, beamed onto televisions in living rooms across the country and livestreamed onto millions of mobile phones. Nadler, the House Judiciary head, can make that happen by holding a hearing where he calls McGahn and other key characters in Counselgate to testify. The witness list should also include former White House staff secretary Rob Porter and current White House press secretary Sarah Huckabee Sanders—who played central roles in Counselgate—as well as former White House chief of staff John Kelly and former White House communications director Hope Hicks, whose parts were more peripheral. And it should include Barr and his deputy, Rod Rosenstein, who now have a lot of explaining to do.

Here’s what we already know about Counselgate, as laid out in Mueller’s thorough report. In June 2017, Trump almost certainly ordered McGahn to have Mueller removed. McGahn refused. That episode came to public light on Jan. 25, 2018, when the New York Times ran a front-page scoop by the Pulitzer Prize–winning duo of Michael Schmidt and Maggie Haberman. Trump was livid. He ordered his personal attorney to tell McGahn to issue a statement denying the Times story. McGahn—speaking through his own private lawyer—refused. Trump then asked Sanders, the White House press secretary, to relay a similar message to McGahn. McGahn again rebuffed the president. Then, on Feb. 5, Trump instructed Porter, the staff secretary, to talk to McGahn himself.

Trump’s directive to McGahn via Porter may be the closest that the Mueller report comes to an obstruction-of-justice “smoking gun.” According to Mueller, Trump “directed Porter to have McGahn create a record denying that the President had tried to fire the Special Counsel.” This looks like textbook obstruction. Even Barr, in his now-infamous June 2018 memorandum urging the Justice Department to restrict Mueller’s inquiry, acknowledged that “if a President knowingly … commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.” Ordering a subordinate to fabricate an evidentiary record almost certainly so qualifies.

McGahn declined to do what Trump had ordered, even after Porter conveyed the president’s threat to fire McGahn otherwise. That led Trump to haul McGahn into the Oval Office the next day. Trump then made the same demand directly to McGahn in a testy tête-à-tête. Trump did not prevail upon McGahn, but not for lack of trying.

Elsewhere, Mueller’s report reveals uncertainty as to the facts and agnosticism as to the illegality of Trump’s actions. The analysis of the Counselgate episode reads quite differently. Mueller shows little doubt that Trump pressed McGahn to sign his name to a story that McGahn knew to be untrue. Trump did so at a time when he knew that a grand jury inquiry was underway and that McGahn was in contact with the Special Counsel’s Office. And according to Mueller, “[s]ubstantial evidence indicates” that the president acted not on the basis of any legitimate motive but “for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.” This is the stuff of a strong obstruction case.

Trump, to be sure, might muster a number of defenses. For example, he might say that he forgot about his June 2017 attempt to remove Mueller (though if so, it would not say good things about our septuagenarian president’s mental capacity that one of the most dramatic episodes of his tenure had slipped his mind only eight months later). Or Trump might say that he wanted McGahn to mislead the media, not to mislead Mueller (though if so, why did Trump want McGahn to manufacture a false paper trail rather than simply order McGahn to reach out to the Times?). Or Trump might say that McGahn and Porter—the two apparent sources for Mueller’s detailed account—are both mistaken in their recollection of events, even though Kelly and Hicks appear to have corroborated key details in their own statements to the special counsel. That’s a “he said, they said” situation in which very few fair-minded people are likely to take Trump’s side.

Given what we know already, what will a House Judiciary Committee hearing accomplish? First, it will allow members of Congress to confirm for themselves what Mueller’s report finds: that Trump ordered the top White House lawyer to fabricate records related to a matter that was material to the special counsel’s inquiry.

Second, it will give the committee an opportunity to dig deeper into details that Mueller didn’t develop. What records, exactly, did Trump tell Porter to tell McGahn to create? And is there any possible explanation for Trump’s order other than that the president wanted to be able to undermine testimony that McGahn might have given or might later give to the special counsel?

Third, it will allow the committee to hear from outside experts—including former prosecutors and law professors—about the legal standards for obstruction. How does Trump’s order to McGahn fit into the statutory and doctrinal framework? The likely answer, it seems, is that it squarely meets the obstruction criteria.

Fourth, the hearing should include Barr and Rosenstein, who say they carefully reviewed Mueller’s report and cleared Trump of obstruction allegations. How did they conclude that Counselgate wasn’t a case of obstruction of justice? Congress and the country deserve an explanation from the attorney general and his No. 2.

Will all of this ever persuade a critical mass of GOP senators to vote to convict Trump of obstruction in an impeachment trial? Probably not. But hearing McGahn—a dyed-in-the-red Republican—testify that Trump told him to create a fake paper trail will rattle even some of Trump’s stalwart supporters. Will it change minds at the ballot box in 2020? Maybe. But more importantly, it will make clear to anyone with an open mind what Trump has tried mightily to hide: the truth.