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Court Rules Against McGahn Subpoena — And Exposes GOP Fraud

Former White House Counsel Don McGahn can't be forced to testify by the judicial branch, a D.C. federal appeals court ruled Friday in a split 2-1 decision.

The majority, led by two Republican-appointed judges, sided with President Donald Trump's effort to block McGahn's testimony, subpoenaed by the House of Representatives as part of Democrats' oversight efforts. As a key witness in Special Counsel Robert Mueller's investigation, McGahn could provide illuminating testimony to describe some of the most damning episodes of what could constitute criminal obstruction of justice by the president.

But the administration has sought to block McGahn's testimony, claiming he has "absolute immunity" from testifying. In court, the Justice Department has argued that the judicial branch shouldn't be involved at all in an effort by Congress to compel testimony from an administration official. On Friday, the court agreed.

"The [House Judiciary] Committee's suit asks us to settle a dispute that we have no authority to resolve," the opinion said. "[We] lack authority to resolve disputes between the Legislative and Executive Branches until their actions harm an entity 'beyond the [Federal] Government.' … Without such a harm, any dispute remains an intramural disagreement about the 'operations of government' that we lack power to resolve."

This is a highly dubious position, and many legal experts have argued that it is wrong. The courts should be able to compel executive branch officials to comply with congressional subpoenas unless they have a credible legal argument in their favor. Democrats will likely continue to appeal the case up to the Supreme Court.

But putting aside the merits of the court's view, its argument — which was promoted by Trump's Justice Department — completely undermined one of the key defenses of the president during his impeachment trial.

Trump was charged by the House of Representatives with abusing his power in the Ukraine scandal as the first article of impeachment. But the second article of impeachment charged Trump with obstructing Congress's investigation into the scandal, by blocking witnesses from coming forward and withholding documentary evidence. Many of the president's defenders dismissed the obstruction of Congress charges, saying that the House should have tried harder to obtain witnesses and evidence by going through the courts. Republican Sen. Marco Rubio of Florida even called the article fo impeachment "frivolous."

At the time, though, the House impeachment managers pointed out that even as Trump's lawyers made this argument, Justice Department lawyers were making the opposite argument. The Justice Department said, as D.C. Court of Appeals has now agreed, that the courts were an inappropriate venue for the dispute and that Congress and the executive should work it out between themselves.

Trump's overall position, then, was either a contradiction or an assertion of near-absolute power. He was essentially saying there was no way for the Congress to obtain the evidence it needed to impeach him.

But in the new ruling on Friday, the court explicitly listed impeachment as one of the remedies Congress can turn to in order to resolve the dispute without turning to the judicial branch:

The absence of a judicial remedy doesn't render Congress powerless. Instead, the Constitution gives Congress a series of political tools to bring the Executive Branch to heel. … Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President's nominees, harness public opinion, delay or derail the President's legislative agenda, or impeach recalcitrant officers. … And Congress can wield these political weapons without dragging judges into the fray.

If this is right, then the GOP arguments for acquitting Trump on the obstruction of justice charge were entirely bogus.

This fatal flaw in the impeachment defense was evident at the time, but Republicans simply refused to acknowledge or address it. Now that the impeachment process is over, of course, they'll surely insist the matter is history or just continue to ignore it altogether. But the new ruling highlights the corruption of the GOP, and helps forever stain the impeachment trial of Trump as an outright fraud.

House Votes To Enforce Subpoenas Of Barr And McGahn

House Judiciary Committee Chairman Jerry Nadler can go to court to force two key members of Trump’s inner circle to comply with congressional subpoenas, after the House voted Tuesday to approve that maneuver.

The House voted 229 to 191 along party lines to let Congress enforce subpoenas against Attorney General William Barr and former White House counsel Don McGahn, who have refused to follow legally binding subpoenas from the House Judiciary Committee by turning over documents related to former special counsel Robert Mueller’s investigation.

“Mr. Speaker, when a congressional committee issues a subpoena, compliance is not optional,” Nadler said in a speech on the House floor urging House members to vote for the resolution. “We expect witnesses to testify when summoned. We expect the Administration to comply with subpoenas and to provide us with the materials we require to do our jobs.”

Refusing to comply with a subpoena is an affront to the rule of law.

Congressional subpoena powers are key to enforcing the constitutional mandate of Congress to carry out oversight and conduct investigations. And by refusing to comply, Barr and McGahn are creating a bad precedent that could hinder the legislative branch from doing its job for years to come.

But both Barr and McGahn’s trampling of the rule of law is consistent with the behavior of the man both have worked for.

Trump has been systematically trying to obstruct congressional investigations to try to avoid facing any repercussions for his lawless and corrupt conduct — including the conduct Mueller investigated, as well as other unethical things Trump has done while in the White House.

Trump has ordered everyone from McGahn, to former White House Communications Director Hope Hicks, to a former White House official in charge of security clearances not to comply with legally binding congressional subpoenas.

House Speaker Nancy Pelosi said Trump’s attempt to stonewall congressional oversight amounts to obstruction of justice. And it’s led dozens of Democratic members of Congress to call for impeachment proceedings against Trump.

Tuesday’s vote, however, allows Congress to enforce its oversight agenda without launching an impeachment inquiry.

If Trump and his aides continue to obstruct investigations, however, an impeachment inquiry could be the next step.

Published with permission of The American Independent. 

IMAGE: Former White House counsel Don McGahn. 

On ‘Impeachable Conduct,’ Justin Amash Is Right

Rep. Justin Amash (R-MI) thinks Donald Trump is guilty of “impeachable conduct,” and he is absolutely right. Impeachable conduct is whatever the House of Representatives decides it is, a point the president’s defenders and some of his critics seem determined to obscure.

The House impeached Bill Clinton for lying under oath about oral sex, and the conduct described in special counsel Robert Mueller’s report is more troubling and consequential, even if it does not amount to a crime that could be proven beyond a reasonable doubt. When Amash, a five-term Michigan congressman, became the first Republican legislator to make that point, the reaction revealed how determined his colleagues are to evade their responsibilities.

Mitt Romney, the Utah senator and former Republican presidential nominee who a month ago said he was “sickened at the extent and pervasiveness of dishonesty and misdirection” detailed by Mueller, this week praised Amash’s “courageous statement” but added that he disagreed with his conclusion. Romney argued that “you just don’t have the elements” to “make a case for obstruction of justice.”

The Mueller Report actually makes a strong case that at least some of Trump’s attempts to interfere with the investigation of Russian efforts to influence the 2016 presidential election involved the three elements of obstruction: an obstructive act, a nexus to an official proceeding and a corrupt intent. When Trump tried to stop the FBI investigation of his former national security adviser, repeatedly demanded Mueller’s removal, pressed White House counsel Donald McGahn to deny that Trump had tried to fire Mueller, urged his attorney general to take control of the Russia investigation and limit its scope and discouraged witnesses from cooperating with it, he arguably met all three criteria.

Mueller unambiguously rejected the view, advocated by Trump’s lawyers and Attorney General William Barr, that the president cannot obstruct justice by exercising his otherwise lawful constitutional powers, which include control of the Justice Department. But even if you accept that theory, it does not cover Trump’s public and private attempts to influence the testimony of witnesses such as McGahn, his former lawyer Michael Cohen and his former campaign chairman, Paul Manafort.

The fact that Trump’s frequently clumsy efforts to impede federal investigations were mostly unsuccessful (mainly because of resistance by his underlings) does not get him off the hook, as attempted obstruction is also a crime. Nor does it matter that Mueller ultimately found no evidence that anyone in the Trump campaign illegally conspired with Russian agents. Trump himself did not know the answer to that question in advance, and in any case, he may have been motivated by a desire to prevent revelations that could prove embarrassing and politically damaging.

More to the point, as Amash noted, the “high crimes and misdemeanors” that justify impeachment extend beyond provable statutory violations to abuses of power that betray the public trust. Trump’s own lawyer, Rudy Giuliani, last year conceded that it “would just be unthinkable” for Trump to pardon himself, which “would lead to probably an immediate impeachment,” even though the Constitution imposes no limits on that power.

Congress might reasonably conclude that a president who uses his powers to protect himself in a less dramatic way — say, by repeatedly interfering with an investigation of his own actions — is unfit for office. Perhaps the norm of avoiding even the appearance of such interference is worth preserving, whether or not it is legally required.

Romney argues that impeachment would be unwise in terms of “practicality and politics,” as “the American people just aren’t there” and the Republican-controlled Senate, which would conduct the trial that follows impeachment by the House, “is certainly not there either.” House Speaker Nancy Pelosi, who is discouraging her fellow Democrats from pursuing impeachment, seems to have reached a similar conclusion.

It is hard to argue with that political calculation. But members of both parties may come to regret the signal they are sending about the sort of presidential behavior Congress is willing to tolerate.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Judiciary Committee Subpoenas White House Witnesses On Trump Obstruction

Trump’s attempts at stonewalling congressional oversight have not stopped the House Judiciary Committee.

The committee on Tuesday subpoenaed both former White House communications director Hope Hicks and former White House deputy counsel Annie Donaldson, ordering both to hand over documents and appear before the Judiciary Committee to testify about instances in which they witnessed Trump obstructing justice.

The two women both play a significant role in the obstruction section of special counsel Robert Mueller’s report.

Hicks testified in the report about her role in the response to the now infamous Trump Tower meeting — in which Trump’s son Donald Trump Jr., son-in-law Jared Kushner, and former campaign chairman turned convicted felon Paul Manafort all met with a Kremlin-connected lawyer who promised “dirt” on Hillary Clinton.

Hicks told Mueller’s team that she was “shocked” by the emails Trump Jr. had exchanged with an intermediary for the Kremlin-connected lawyer, saying the emails “looked really bad” and urging Trump and Trump Jr. to release the emails to the public to “get in front of the story.”

Trump, however, thwarted that plan.

“Hicks warned the President that the emails were ‘really bad’ and the story would be ‘massive’ when it broke, but the President was insistent that he did not want to talk about it and they should not go to the press,” Mueller wrote in his report.

Donaldson — who served as former White House counsel Don McGahn’s chief of staff — also appears in the obstruction of justice chapter of Mueller’s report. She took notes about Trump’s comments when former FBI Director James Comey was fired and when Mueller was appointed to be special counsel.

On May 9, 2017, the day Trump fired Comey, Donaldson wrote in a note, “is this the beginning of the end?” — which Mueller wrote in a footnote of the report meant that she “was worried that the decision to terminate Comey and the manner in which it was carried out would be the end of the presidency.”

The subpoenas come the same day that McGahn, Donaldson’s former boss, refused to comply with a House Judiciary Committee subpoena to testify about the obstructive acts McGahn witnessed Trump committing. McGahn ignored the subpoena on the orders of Trump, who concocted a faulty legal rationale to claim executive privilege and squash McGahn’s public testimony.

House Judiciary Committee Chairman Jerry Nadler (D-NY) said that he won’t let Trump’s attempts to dodge oversight stop his committee’s work.

“As I said earlier today, the Judiciary Committee’s investigation into obstruction of justice, public corruption, and abuse of power by President Trump and his Administration will continue,” Nadler said in a statement. “I have issued these subpoenas today to two critical witnesses who have worked closely with the President. We are seeking the information in order to conduct proper oversight, consider potential legislation and perform our constitutional duties.”

Judging by Trump’s past behavior, he is likely to try to suppress the testimony of both Hicks and Donaldson.

And doing so is only going to make calls for impeachment proceedings to grow.

Published with permission of The American Independent.