Tuesday, May 07, 2019

Yeah, it doesn't really work that way....


Dear Chairman Nadler:

I write in reference to a subpoena issued by the Committee on the Judiciary (the
"Committee") to Donald F. McGahn II on April 22, 2019, which requests the production of documents by 10:00 a.m. on Tuesday, May 7.

The subpoena seeks certain White House records provided to Mr. McGahn while he was
Counsel to the President that are related to Special Counsel Robert S. Mueller, Ill's investigation.  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 ofthe White House for all purposes. The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.

Because Mr. McGahn does not have the legal right to disclose these documents to third
parties, I would ask the Committee to direct any request for such records to the White House, the appropriate legal custodian. The Acting Chief of Staff to the President, Mick Mulvaney, has directed Mr. McGahn not to produce these White House records in response to the Committee's April 22 subpoena. The Department of Justice is aware of and concurs with this legal position.  My Office will respond to the Committee concerning its interest in the records.

Please do not hesitate to contact me directly if you have any questions or would like to
discuss this matter.
That's the relevant text from the letter to Rep. Nadler from the White House Counsel.  The legal reasoning on who has possession, custody, and control of the records sought is perhaps a bit stronger than the executive privilege claim.  It may be the subpoena needs to go to Mick Mulvaney, as "the appropriate legal custodian."  Either way, there's no privilege claim to be raised now, since they've let those documents out to a third party:  Robert Mueller & Co.

Once you release documents to a third party, with rare exception, you've waived any privilege to keep those documents from anyone else.  This is why corporate documents procured in discovery can get on the internet:  it's not because the lawyers who got the documents become "journalists" because they publish on a website; it's because the privilege in those documents (if any, and unless they were sealed by the court) is waived.  Once out, they are accessible to anyone.

Trump made the decision not to assert executive privilege when then White House Counsel Don McGahn spoke to Mueller for over 30 hours.  His new White House Counsel says so in this letter.  The "clear understanding" he mentions is horseshit.  The White House cannot release those documents to a criminal/counterintelligence investigation, and then claim they can't be seen by Congress looking into the investigation Congress authorized by funding it.  Nice work if you can get it, but they can't get it now.  Sure, it ties things up a bit, but Nixon tried to block the White House tapes from being released, and he was out in '74 after being elected in '72.  Some issues move more rapidly through the courts than others, and where the Office of the President is involved, there is often preference shown to the importance of the case.

Trump digging in his heels and refusing to cooperate with any Congressional investigation is not the delaying tactic he imagines it to be.  One court decision against him, that whole house of cards of legal defenses he is raising (which rests basically on "NO COLLUSION!  NO OBSTRUCTION! NO FAIR!"), comes tumbling down.

And don't tell me the Roberts Court will do something brazen, in line with Barr's ridiculous testimony to the Senate, or Mnuchin's refusal to follow black letter law.  Even Supreme Court Justices can be impeached and removed from the bench, and if the Roberts Court puts too heavy a thumb on the scales, that kind of bridge-burning could come back to bite them.  It would be a very bad day for the American Republic if such fires of retribution were kindled, but the Court fully recognizes its authority rests on its appearance of judiciousness and impartiality.  If the Court begins to act against the Congress so bluntly, the Court may soon find itself with four or five new members, appointed by a new Democratic President.

It seems unlikely and unprecedented; but then, so is the Presidency of Donald J. Trump.


The raw id version of the Trump legal defense.  Yeah, that doesn't work, either.
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