Monday, May 20, 2019

This Could Almost Be Fun



First:  there is no attorney/client privilege involved in Don McGahn testifying before any Congressional committee about his work as White House Counsel.  If there was, it was waived when McGahn testified to Mueller's investigators for over 30 hours.

There is also no ethical bar to complying with a Congressional subpoena:

In response to a Congressional subcommittee’s subpoena for a lawyer’s files pertaining to the representation of a current or former client and containing confidences or secrets that the client does not wish to disclose, the lawyer has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets. If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents. A directive of a Congressional subcommittee accompanied by a threat of fines and imprisonment pursuant to federal criminal law satisfies the standard of “required by law” as that phrase is used in D.C. Rule of Professional Conduct 1.6(d)(2)(A).

That opinion is not on "all fours" with the facts of this case, but it is instructive in the highlighted portion.  There is no ethical bar to disclosing subpoenaed material if the attorney faces penalties under law for failure to comply.  It's the penalties under law that is critical here:

For example, in D.C. Bar Opinion 83, we stated that a lawyer “is not obliged to run the risk of being held in contempt of court because of the client’s desire that confidences and secrets not be disclosed.” Similarly, in D.C. Bar Opinion 14, we stated that “the attorney is . . . free to comply with whatever directive the trial court gives.” In D.C. Bar Opinion 214, we stated “we conclude that the law firm . . . may comply with a final judicial order enforcing an IRS summons without seeking appellate review of that order, but only after giving its client notice of the court’s order and a reasonable opportunity to seek review independently of the firm.”
In short, Trump can tell McGahn not to comply with the subpoena (which, yes, sounds like an impeachable offense to me, but impeachment, like "fetch," is not happening).  McGahn can decide he won't, and then Congress can go to court to get the subpoena enforced which, contrary to popular opinion, really won't take that long.  But the White House can't go to court on this matter; they don't have a dog in this fight.  McGahn probably doesn't want to spend his time this way; it would be quicker and easier to testify and get it over with.

And then there's this:

That letter cites only opinions of the Office of Legal Counsel of the DOJ for the argument that McGahn can't be compelled to testify..  Such opinions have no weight of law, and are not binding on Congress or the courts.  Besides, as I said, McGahn has already testified for 30 hours on the subjects the Committee is interested in.  Whatever privilege or immunity the letter cites has been waived a long time ago.  Notice, of course, they say nothing about that in this letter, even though it is the crucial issue any court will start with in any hearing on a declaratory judgment action or any other action to enforce the subpoena.  They say nothing, because they got nothing.

Trump imagines he will tie this up in court for years.  As the trial courts so far have made clear, they have no intention of allowing that to happen.  Remember the other case to quash subpoenas against Deutsche Bank and Capital One is heard on Wednesday.  With the NYT report on Deutsche Bank and Trump's money, it's impossible to imagine Congress doesn't have a legitimate interest in those records.

McGahn may not testify tomorrow morning, but he will; soon enough.  But the next question is:  will he refuse to show up?  The NYT article thinks he's between a rock and a hard place:  testify, and face the wrath of a President.  Don't testify, and be found in contempt of Congress, which could be criminal.  So the question is:  how much weight does McGahn think Trump really throws?

But the answer is:  he has to testify, whether he wants to or not.  He did it once.  He can't refuse to do it again.

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