Jurisprudence

Democrats Should Never Have Pinned Their Hopes on Don McGahn

Donald McGahn
White House counsel Donald McGahn listens as Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill on Sept. 27.
Saul Loeb - Pool/Getty Images

On Tuesday, yet another deadline for someone in Trump’s orbit to respond to a congressional subpoena came and went with noncompliance. This time it was former White House counsel Don McGahn, who declined to turn over documents related to allegations he made in his testimony to special counsel Robert Mueller that President Donald Trump sought to have Mueller fired and then asked McGahn to help cover up that effort.

In declining to turn over the documents, McGahn’s lawyer cited a letter from his successor, Pat Cipollone, which said that the records in question can’t be turned over because they “remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.”

President Donald Trump has not asserted executive privilege to keep those documents uncovered—a case he might lose in court if he were to make it—but McGahn still used the White House’s wishes as an excuse not to obey the subpoena.

“[McGahn] continues to owe certain duties and obligations to the President which he is not free to disregard,” his lawyer Bill Burck wrote in a letter to the House Judiciary Committee, which had issued the subpoena. “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.”

The upshot? The Judiciary Committee will likely not get the documents willingly from McGahn. In response, Judiciary Chairman Rep. Jerry Nadler wrote a stinging rebuke to Burck and McGahn Tuesday evening demanding either compliance with the subpoena or a privilege log offering specific claims of executive privilege by the president that could then be contested in court. The letter promises to hold McGahn individually in contempt if these demands are not met—an outcome that is looking more and more inevitable.

Democrats should never have pinned their hopes on McGahn to willingly cooperate in the first place. Further, they shouldn’t expect him to cooperate with the other part of the subpoena, which demands that he appear before the committee by May 21 and answer questions about the episodes in the Mueller report, even with contempt proceedings looming in the background. Expect McGahn to come up with other, similar excuses in order to avoid testifying about Trump’s alleged abuses of power.

McGahn was arguably the Mueller report’s most prominent figure—having been mentioned more than 150 times and acting as the key witness in some of the most straightforward potential obstruction charges against Trump—and after its release, some argued that McGahn could be the star witness in any Democratic impeachment case against the president.

This was always a long shot. While McGahn directly and credibly implicated the president in obstruction of justice during his more than 30 hours of conversations with the Special Counsel’s Office, he has evinced no desire to take any further steps that might be damaging to the president unless he is forced to by legal obligation.

Indeed, after the release of the Mueller report, McGahn’s own lawyer was making excuses for the president’s behavior. As the New York Times reported shortly following the release of the report:

Mr. Burck said his client was simply telling the truth under threat of perjury, not accusing the president of illegally obstructing justice.

“Clients sometimes approach their lawyers with bad ideas,” Mr. Burck said. “That’s not obstruction—it just comes with the territory. Don did his job. Mueller was not removed.”

The Washington Post also reported at the time that McGahn was showing no eagerness to publicly implicate the president:

“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,” said one person close to McGahn, who described private discussions on the condition of anonymity. “He doesn’t want to be in contempt of Congress; nor does he want to be in contempt of his ethical obligations and legal obligations as a former White House official.”

Essentially, McGahn appears to be trying to avoid politically hurting the president more than he already has. Trump may ultimately help that effort with an executive privilege claim. And such a claim might work, at least as a stalling tactic while the courts decide whether the claim is valid.

During the Watergate scandal, the Supreme Court ruled in U.S. v. Nixon that a general assertion of executive privilege—as opposed to one justified by military or diplomatic confidentiality—cannot justify the withholding by the president of relevant evidence. The Nixon ruling was in the context of a criminal case, though, which is not so with Trump. Historically, the courts have sought to find accommodation between Congress and the executive branch in interbranch fights over executive privilege.

Many legal observers—including George Conway and Watergate prosecutor Richard Ben-Veniste—have argued that any executive privilege has been clearly waived by McGahn having taken part in conversation with Mueller, and then by the publication of the Mueller report itself. However, there is a case to be made that the president has waived privilege only for the portions of McGahn’s testimony that are already public. Privilege claims about the rest of McGahn’s testimony and additional obstruction details not laid out in the report would have to await litigation by the courts. That fight would be politically charged and could take many months, even if the Supreme Court’s principle that no person “is so high that he is above the law,” cited by Mueller in his report, would normally imply that Congress should prevail.

During any lengthy court fight—if it goes that route—the Judiciary Committee might only be able to compel McGahn to come forward and publicly state things he already said under penalty of perjury that were true. As a public spectacle, it’s hard to imagine that testimony being particularly dramatic. McGahn could also find other ways out of testifying, perhaps citing the bipartisan executive branch doctrine that current and former White House officials cannot be compelled to testify before Congress. The previous White House, for one, argued that Obama’s officials are “immune from congressional compulsion to testify on matters relating to [their] official duties.” Trump might make this case to keep McGahn from talking about anything, including the portions of his testimony where privilege has seemed to be waived.

Given McGahn’s past, no one should be surprised at his unwillingness to play ball with Congress, despite his star testimony in the Mueller investigation. As Leon Neyfakh wrote in Slate in 2017, McGahn has made a career out of using elaborate and sometimes implausible legal loopholes to get out of procedures he “loathes [as] unnecessary rules.”

McGahn doesn’t need to love his old boss to end up protecting him.