Ex-White House lawyer de­fies House sub­poena for Mueller docs

The Tribune (SLO) - - Front Page - BY MARY CLARE JALONICK AND LISA MAS­CARO

WASH­ING­TON

A for­mer White House lawyer de­fied a con­gres­sional sub­poena Tues­day, set­ting the Trump ad­min­is­tra­tion on course for an­other col­li­sion with the Demo­cratic-led House over its pur­suit of doc­u­ments re­lated to the Rus­sia in­ves­ti­ga­tion.

Don McGahn’s re­fusal to pro­vide the doc­u­ments to the House Ju­di­ciary Com­mit­tee came at the in­struc­tion of the White House, which sug­gested they could be sub­ject to ex­ec­u­tive privilege. Such a claim can shield some pres­i­den­tial ma­te­rial from disclosure. Pres­i­dent Don­ald Trump has de­fied re­quests from House Democrats since the re­lease of spe­cial coun­sel Robert Mueller’s report last month. Repub­li­cans have largely united be­hind the pres­i­dent, with Se­nate Ma­jor­ity Leader Mitch McCon­nell on Tues­day declar­ing “case closed” on Mueller’s Rus­sia probe and po­ten­tial ob­struc­tion by Trump. McCon­nell said Democrats are “griev­ing” the re­sult.

Mueller said he could not es­tab­lish a crim­i­nal con­spir­acy be­tween the Trump cam­paign and Rus­sia, but did not reach a con­clu­sion on whether Trump ob­structed jus­tice. Mueller didn’t charge Trump but wrote that he couldn’t ex­on­er­ate him, ei­ther.

Democrats say the case is

any­thing but closed and are con­duct­ing their own re­view of Mueller’s in­ves­ti­ga­tion of Russian elec­tion in­ter­fer­ence . The Ju­di­ciary panel wants to speak to McGahn and re­view cer­tain doc­u­ments, in part be­cause he was a vi­tal wit­ness for Mueller, re­count­ing the pres­i­dent’s out­rage over the in­ves­ti­ga­tion and his ef­forts to cur­tail it.

White House coun­sel Pat Cipol­lone said McGahn does not have any “le­gal right” to the ma­te­ri­als be­cause they are con­trolled by the White House. Cipol­lone did not in­voke ex­ec­u­tive privilege in a let­ter to House Ju­di­ciary Chair­man Jer­rold Nadler, D-N.Y., but strongly sig­naled the op­tion is on the ta­ble. He said the records Democrats are seek­ing “re­main legally pro­tected from disclosure un­der long­stand­ing con­sti­tu­tional prin­ci­ples.”

Ex­ec­u­tive privilege is the pres­i­dent’s power to keep in­for­ma­tion from the courts , Congress and the pub­lic to pro­tect the con­fi­den­tial­ity of the Oval Of­fice de­ci­sion-mak­ing process. There is no ref­er­ence to ex­ec­u­tive privilege in the Con­sti­tu­tion, but the Supreme Court has held that it de­rives from the pres­i­dent’s abil­ity to carry out the du­ties the com­man­der in chief holds un­der the Con­sti­tu­tion.

Be­sides doc­u­ments, the House Ju­di­ciary Com­mit­tee’s sub­poena asked McGahn to tes­tify later this month. Trump has sig­naled he will try to block McGahn from ap­pear­ing. McGahn’s lawyer said that he will “maintain the sta­tus quo” and wait for the White House and the com­mit­tee to reach an agree­ment.

“As you will ap­pre­ci­ate, Mr. McGahn, as a for­mer as­sis­tant to the pres­i­dent and the most se­nior at­tor­ney for the pres­i­dent in his of­fi­cial ca­pac­ity, con­tin­ues to owe cer­tain du­ties and obli­ga­tions to the Pres­i­dent which he is not free to dis­re­gard,” wrote at­tor­ney Wil­liam Burck.

The strug­gle over McGahn’s tes­ti­mony is play­ing out against the back­drop of a larger de­bate on Capi­tol Hill about what ac­tion – if any – to take fol­low­ing the con­clu­sion of Mueller’s in­ves­ti­ga­tion.

McCon­nell, in his most sig­nif­i­cant pub­lic com­ments yet on the in­ves­ti­ga­tion, opened the Se­nate on Tues­day with a speech dis­cussing how Mueller’s “ex­haus­tive” probe is now com­plete.

“It’s fi­nally over,” the Ken­tucky Repub­li­can said. He called Mueller’s find­ings “bad news for the out­rage industrial com­plex but good news for the rest of the coun­try.”

The speech drew swift re­but­tals from Democrats. House Speaker Nancy Pelosi and Se­nate Demo­cratic leader Chuck Schumer is­sued a joint state­ment call­ing it “a stun­ning act of po­lit­i­cal cynicism and a brazen vi­o­la­tion of the oath we all take.”

After McCon­nell’s speech, Mas­sachusetts Sen. El­iz­a­beth Warren, a Demo­cratic pres­i­den­tial can­di­date, made her own trip to the Se­nate floor to say the House should be­gin im­peach­ment pro­ceed­ings – a step that Pelosi has so far re­sisted. Yet Pelosi also said Trump seems to be “mak­ing the case” for his im­peach­ment by brazenly ob­struct­ing in­ves­ti­ga­tions.

“He’s just try­ing to goad us into im­peach­ment,” Pelosi said in a talk at Cor­nell’s In­sti­tute of Pol­i­tics and Global Af­fairs.

The dis­pute with the White House over McGahn is among sev­eral re­quests be­ing re­sisted by the ad­min­is­tra­tion. The Ju­di­ciary Com­mit­tee is also ne­go­ti­at­ing with the Jus­tice Depart­ment over ob­tain­ing a full, unredacted ver­sion of Mueller’s report. At­tor­ney Gen­eral Wil­liam Barr re­leased a redacted ver­sion to the pub­lic last month, but Democrats want to see the full doc­u­ment, plus un­der­ly­ing doc­u­ments, and have sched­uled a com­mit­tee vote Wed­nes­day to hold Barr in contempt for not pro­vid­ing it.

Staff mem­bers from the House Ju­di­ciary Com­mit­tee were meet­ing with Jus­tice Depart­ment of­fi­cials Tues­day for fi­nal ne­go­ti­a­tions be­fore the contempt vote. Nadler said late Mon­day that he hopes to make “con­crete progress” to­ward re­solv­ing the dis­pute over gaining ac­cess to the report.

If the talks fail and the com­mit­tee ap­proves the contempt res­o­lu­tion against Barr, it would head to the full House for fi­nal ap­proval. But that step is un­likely to lead to crim­i­nal charges. A House vote would send a crim­i­nal re­fer­ral to the U.S. at­tor­ney for the District of Co­lum­bia, a Jus­tice Depart­ment of­fi­cial who is likely to de­fend the at­tor­ney gen­eral.

Demo­cratic House lead­ers could also file a law­suit against the Jus­tice Depart­ment to ob­tain the Mueller report, an op­tion that could take months or even years to re­solve. Some com­mit­tee mem­bers have sug­gested they also could fine Barr as he with­holds the in­for­ma­tion.

Repub­li­cans have lam­basted the Demo­cratic tac­tics as over­reach. The top Repub­li­can on the Ju­di­ciary Com­mit­tee, Rep. Doug Collins of Ge­or­gia, said “Democrats have launched a proxy war smear­ing the at­tor­ney gen­eral” when their anger ac­tu­ally lies with the pres­i­dent.

Don McGahn

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