For someone loudly proclaiming “NO OBSTRUCTION,” President Trump is certainly committing a lot of obstruction in plain view in recent days.
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From fighting to prevent Congress from obtaining his tax returns to suddenly reversing his position and declaring that Special Counsel Robert Mueller should not testify in front of Congress to having his malleable Attorney General present a misleading view of the Mueller report to the public while refusing to release the unredacted version of the report and its underlying evidence to Congress, Trump has done everything in his power — as well as measures outside the boundaries of his authority — to prevent the full truth of his actions from becoming public knowledge.
The president took his campaign of obstruction another step further today, invoking executive privilege to keep former White House counsel Donald McGahn from delivering documents related to the special counsel’s investigation to Congress in accordance with the subpoena issued by the House Judiciary Committee.
Despite the opinion of most legal scholars that the material that Trump seeks to block Congress from obtaining is not subject to executive privilege because it had been already waived when the White House originally allowed McGahn to be interviewed by Mueller and his team, White House counsel Pat A. Cipollone now claims that McGahn does not have the legal right to comply with the Judiciary Committee’s subpoena of the documents.
“The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with the clear understanding that the records remain subject to the control of the White House for all purposes,” Cipollone wrote. “The White House records remain legally protected from disclosure under long-standing constitutional principles, because they implicate significant executive branch confidentiality interests and executive privilege.”
The move by the White House comes after its realization that McGahn could be the most potent witness to actions by the president that most would consider clear evidence of criminal obstruction of justice — including Trump’s pressuring McGahn to push for Mueller’s dismissal and his later efforts to convince McGahn to lie about that request.
While the Democrats now in control of the House Judiciary Committee will likely be further incensed by the additional attempts to block their investigation, it is still unclear what their next move regarding McGahn may be.
The White House has made clear its opposition to allowing any cooperation with congressional investigations by making dubious claims of executive privilege applying to the ability of witnesses who have already participated in the Mueller probe to testify before the committee.
Yet, the Trump administration has yet to formally file a claim of executive privilege regarding McGahn’s actual testimony, as opposed to the document production claim made today, preferring to continue to negotiate with the Judiciary Committee, according to a report in The Washington Post.
“William Burck, McGahn’s attorney, wrote the committee Tuesday that his client is caught between demands from the White House and Congress, and will not turn over the records at this point. Instead, he said, McGahn will allow the White House to proceed in its plans to negotiate directly with the committee over the subpoena for records,” The Post reported.
“”Where coequal 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. Please note Mr. Cipollone writes that his office will respond to the Committee about the White House documents,’ Burck wrote.”
Democrats have stood firm in declaring that Trump’s claims of executive privilege are invalid, having been waived by the public disclosure of the information in the redacted Mueller Report.
“The key waiver was the attorney general’s release of the Mueller report, that made it public” said former House counsel Irvin B. Nathan. “There’s no justification for executive privilege any longer — and there’s not a chance that any court would say that executive privilege has not been waived.”
“McGahn has every right to testify . . . He has a responsibility to testify,” said House Judiciary Committee member Jamie Raskin (D-MD). “Any relevant executive privilege [claim] was waived long ago when McGahn went and spent more than 30 hours being interviewed by the special counsel, so it’s very hard to imagine that you can put the toothpaste back in the tube.”
With the dispute over McGahn’s appearance before the committee likely to wind up adjudicated in the federal courts, political analysts are speculating that the White House strategy is to prolong the legal fight over providing information to the committees investigating him as long as possible to either pressure congressional Democrats into starting a potentially unsuccessful impeachment proceeding — given the difficulty they will have in getting enough votes in a Republican-controlled Senate to convict the president on the charges they may bring — or to extend the investigation until a point where the upcoming presidential election makes any investigation a moot point.
The biggest question to emerge from this latest conflict between Congress and the executive branch is what will the Democrats do in response to Trump’s defiance, and whether they will find the internal fortitude to exercise their powers to declare the people violating their subpoenas to contempt charges and the fines and imprisonment they could levy in retaliation.
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Original reporting by Rachael Bade. arol D. Leonnig, Josh Dawsey at The Washington Post