The Trump administration is doubling down on obstruction of justice today by going all out to prevent former White House Counsel Don McGahn from testifying before the House Judiciary Committee tomorrow as originally scheduled.
The White House has insisted that McGahn ignore the legally binding subpoena issued by the committee to compel his appearance and face the promised penalty of a contempt of Congress citation and whatever subsequent penalties that the House may decide to impose.
The administration had the now totally pliant Justice Department, now under the direction of Trump’s latest personal fixer, Attorney General William Barr, issue a legal finding that argues that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”
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The legal opinion is addressed to Trump’s current White House Counsel Pat Cipollone and cites five decades of precedent in its reasoning while quoting executive privilege assertions made by President Bill Clinton’s Attorney General Janet Reno in its arguments.
Besides forbidding even a former White House Counsel no longer in office from honoring a congressional subpoena, the Justice Department’s legal memorandum also argues that executive branch officials are shielded from contempt of Congress charges due to the Constitution’s doctrine of the separation of powers.
Now that the Trump administration has formally defied yet another congressional subpoena, Democratic leaders in Congress are contemplating their next steps.
It is now undeniable that the government has entered a major constitutional crisis and that the competing claims of the right and duty of Congress to oversee the actions of the executive branch and of the executive privilege being asserted by the White House will wind up in a long, drawn-out battle in the third branch of government, the judiciary, with the Republican-packed Supreme Court eventually weighing in on the issue — a process that could stretch on for years.
With the nexus of the constitutional crisis arriving when the House Judiciary Committee issues a contempt finding that the White House insists it is not subject to, the question will be whether — and how exactly — Congress will decide to enforce punishment for the defiance of its demands for information.
The latest strategy being bandied about in the halls of Capitol Hill is to use the congressional power of the purse to defund any executive branch departments that refuse to provide the information that they request.
With a cabinet filled with independently wealthy millionaires, simply levying a fine on the Trump administration officials who defy the legally issued subpoenas — and by extension, the entire rule of law — may not be enough of a penalty to compel them to change their course. The defunding of every activity conducted by areas of their departments, however, may be enough to make them stand up and pay attention, the thinking goes.
Whatever the Democrats decide to do, the next few weeks will indubitably be an interesting and exciting nail-biter of a ride. Hang on for all our lives.
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Original reporting by Andrew Desiderio and Kyle Cheney at Politico.