Let McGahn testify
It’s no surprise Trump is fighting the subpoena, but it’s in his interest to let the truth come out.
In February of last year, President Trump was steaming mad over press reports that he’d ordered White House counsel Don McGahn to have special counsel Robert Mueller fired. Worried it made him look bad, Trump demanded McGahn issue a statement and write a memo for White House files saying the reports were false.
McGahn, an otherwise loyal and highly effective Trump aide, refused, according to a heavily footnoted account contained in the Mueller report.
Over the next few days, Trump told other aides McGahn was a “lying bastard” and threatened in a message delivered to McGahn that if he didn’t proclaim the reporting fake, “maybe I’ll have to get rid of him.”
When McGahn insisted The New York Times and other outlets were right about the demand to fire Mueller, Trump summoned him to the Oval Office. That Feb. 6 meeting now stands at the center of a constitutional clash between the White House and Congress. Just as importantly, it is Exhibit A for why so many Americans believe Trump’s claims to have “cooperated fully” with Mueller’s investigation are false.
It also explains why Trump has been unable to resolve questions of whether he’s guilty of obstruction of justice, an impeachable offense, despite Attorney General William Barr’s misleading declaration that the president had been exonerated.
Mueller’s investigation is over. He found no evidence supporting the most hair-raising suspicions about Trump and Russia. But on a second point — whether Trump obstructed justice — Mueller was inconclusive. That gave Barr, a Trump appointee, the last word on whether Trump had broken the law. But Barr can decide that question only for the Department of Justice not for the Congress, which alone has the constitutional authority to decide if presidential conduct warrants impeachment.
That’s why, naturally, the House wants to learn for itself the extent to which Trump pressured McGahn to fire Mueller. At the very least, McGahn’s statements appear to contradict Trump’s claims of cooperation.
It should be no surprise either that the Trump administration has objected to McGahn testifying before the House judiciary committee. Previous presidents have reacted similarly.
Usually, such disputes resolve themselves through compromise. That seems unlikely in today’s environment where tensions are high enough to recall the battles over presidential power during President George W. Bush’s second term and the fights over subpoenas that helped spur President Nixon’s resignation.
Deciding to fight, rather than compromise, the Office of Legal Counsel — a unit within the Justice Department — on Monday issued a 21-page memo claiming aides like McGahn enjoy “absolute immunity” from such pressure. Citing the memo, Trump ordered McGahn not to answer Congress’ summons.
The reasons why both sides have escalated this fight are easy to understand. McGahn’s testimony could be explosive and Democrats want to question him, particularly about last year’s Oval Office meeting. When McGahn arrived, chief of staff John Kelly also was present. The president began by “telling McGahn that The New York Times story did not ‘look good’ and McGahn needed to correct it,” according to an account of the meeting included on page 113 of the second volume of the Mueller report.
“I never said to fire Mueller. I never said ‘fire,’” Trump told McGahn, according to statements included in Mueller’s findings. “This story doesn’t look good. You need to correct this.”
McGahn stood his ground. “What you said is,” he told his boss, “‘Call Rod (Rosenstein), tell Rod that Mueller has conflicts and can’t be the special counsel.’” Rosenstein was Mueller’s boss at the DOJ.
If McGahn’s account is true, the House may well have grounds to conclude that rather than cooperate with the Mueller investigation, he went to extraordinary lengths to shut it down. Whether that’s important enough to trigger impeachment hearings will be up to the House. It certainly fits a pattern on the part of Trump.
Trump’s order that McGahn not testify is unsurprising. But the legal arguments put forth by the OLC to support it are flimsy. Only once has a federal judge ruled on this question of immunity from congressional summons, and in that 2008 case U.S. District Judge John Bates, a George W. Bush appointee, rejected the White House claims that Bush’s former White House counsel had immunity from a congressional subpoena. Any claim of executive privilege would have to be raised question-by-question during the hearing, Bates ruled, but she could not refuse the summons.
That 2008 decision was appealed, and put on hold pending a full hearing. Before that could happen, Bush and Congress worked out a compromise that rendered the case moot.
So it’s not clear how a court might rule today should the current impasse end up back before a judge, as appears likely. But Bates’ ruling lays out a perfectly clear rebuttal of arguments contained in Monday’s OLC memo.
This much is true regardless: So long as Trump works overtime to keep the truth from the people, the challenge we’re confronting will be more than a constitutional crisis. It’s a crisis of confidence in our president for those Americans, at least, who still have some to lose.