Posted on August 08 2019
House Judiciary to McGahn
- you’ve been served-
In order to help you fully understand where we are with respect to the House Judiciary Subpoena, Don McGahn and Donald Trump - I think you’ll find the following write-ups helpful.
May 2018 - often overlooked was this write up, it clearly pre-dated the Mueller Report by almost 11 months, I also included an October 2017 GAO report. I also included:
The GOA General Counsel Thomas Armstrongsent this two page letter to White House Counsel Don McGahn, expressing areas of multiple concern and lack of cooperation or communication or complying with multiple request. You can read the two page May 2018 GAO letter, here.
April 22, 2019 House Judiciary subpoenas Don McGahn - remember that Trump was caught flat-footed after finding out after the fact that Don McGahn sat down with the Special Counsel’s Office for 30 hours. That’s a long time and in Volume 2 of the Mueller Report McGahn is cited hundreds of times.
April 28, 2019 Contempt of Congress in this write up I walked you through the three options available to Congress. Granted I tend to nerd out on the substance but it is important that you have access to the original documents and can review them to better inform yourself.
May 11, 2019 - the Roy-Cohn 2.0 DOJ and current White House Legal Counsel circle the wagons to protect McGahn - Also embedded AG Barr’s letter to House Judiciary, McGahn’s cover-band and McGahn’s speech at Oxford University
July 26, 2019 - FOR AN ORDER AUTHORIZING THE RELEASE OF CERTAIN GRAND JURY MATERIALS.
The 53 page complaint found here. The House Judiciary’s prerequisite goal is to obtain a Court Order for the Rule 6e grand jury materials (see previous write up here) from the Special Counsel's report and to enforce the Committee's subpoena for former White House Counsel Don McGahn's
(new) Case No - 1:19-cv-02379
So what you may not notice is this is in fact a new Complaint. Generally speaking the House Judiciary Committee views Don McGahn as one of their most critical witnesses. Particularly in the four corners of the Mueller Report and the 30 hours of interviews McGahn gave to investigators. It makes a reasonable person conclude that McGahn’s testimony is paramount for the House Committees. As widely reported Chairman Nadler has officially stated that the Committee is actively investigating and determining whether to “recommend articles of impeachment”.
In my (non-binding) Opinion the assertion of “Absolute Immunity” is on its face absurd. And while you might disagree with me, my assertion is McGahn may (operative word) have a much stronger argument under attorney client privilege. Notwithstanding that much to Trump’s chagrin - he isn’t the client. The actual client is the Office of the Presidency. This is something that Trump continues to conflate. Which is odd because the White House’s own website states the following:
The Office of White House Counsel
The Office of White House Counsel advises the President, the Executive Office of the President, and the White House staff on legal issues pertaining to the President and the White House. It is often said that the office sits at the intersection of law, policy, and politics.
Now one thing you should know when there are other pending actions in the Court, the parties are required to “notice” - in the above entitled matter you’ll note (document number 2 of the docket)
Application for an Order Authorizing the Release of Grand Jury Material Cited, Quoted, or Referenced in the Report of Special Counsel Robert S. Mueller III, Case No1:19-mc-00045-BAH (filed April 1, 2019) - See Judiciary Press Release found here, this endeavor was temporarily put on hold when the Committee received assurances from the DOJ.
See April 1, 2019 Chairman Nadler’s letter to Attorney General Barr, found here.
Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials,
Case No - 1:19-gj-00048-BAH (filed July 26, 2019).
On a separate note since Mr. McGahn is currently admitted in the DC Bar, currently a member in good standing (do not dox him if you post online, take the time to redact his telephone number and other personal Identifiable Information. Only losers and intellectually stunted individuals dox people)
The reason I’m bringing up the DC Bar membership is once you raise your hand and take the oath (to become an officer of the Court) you are bound by the rules of the Bar you’ve been admitted to. I’ve taken the liberty of pulling down the DC (Bar) D.C. RULES OF PROFESSIONAL CONDUCT - which requires Bar Members to comply but it also itemizes the various steps to “potentially force compliance” outside of a Judicial Setting. Your second “but” is on its own a Congressional Subpoena isn’t “enough” to force compliance. See D.C. Rule of Professional Conduct 1.6(d)(2)(A) Pages 1-9
In a recent DC Bar Ethics Opinion (number 288) they provide one of the most thorough explanations of how Congressional Subpoenas are slightly unique. Fair warning if you think I’m verbose that DC Bar Ethics Opinion makes my writing read as a cliff-notes of cliff-notes. Below is an overly abbreviated summary of the aforementioned opinion.
DC Bar requires attorneys to file a motion to quash and/or limit the subpoena. If parties are unable to reach an accord then matters become slightly muddled. Meaning the DC Bar’s position is, if the Congressional Committee and/or Subcommittee move to hold that person in Contempt (note the DC Bar’s Opinion there’s zero specificity of what kind of Contempt, as further explained here and the relevant statute, 2 USC §192) then the Attorney is “allowed” but not “obligated” to comply with the Subpoena. Some legal scholars have argued that “required by law” burden can not be satisfied by a Congressional Committee and/or Subcommittee but the DC Bar Ethics Opinion clearly states:
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).
What you may have overlooked are the following (recent) legislative actions taken in the House concerning McGahn and Barr. Remember both judicially and legislatively everything has a process which are set forth by Rules. And of course it can be frustrating because we are pre-conditioned to immediate/instant gratification. Congress and the Court have an obligation to follow the rules otherwise one could argue they have become what they loath, Donald Trump who happily brakes the rules, our laws and is unrepentant in doing so.
H.Res.430 - Authorizing the Committee on the Judiciary to initiate or intervene in judicial proceedings to enforce certain subpoenas and for other purposes.
H.Res.431...providing for consideration of the resolution (H. Res. 430) authorizing the Committee on the Judiciary to initiate or intervene in judicial proceedings to enforce certain subpoenas and for other purposes.
To date I’m unaware of any legal action filed by McGahn or Donald Trump or the White House Counsel’s Office - to quash McGahn’s subpoena. It’s possible they have and I inadvertently overlooked it. It should be noted that yes, indeed the entities have filed various separate actions in regards to other Congressional Subpoenas. For example:
May 10, 2019 House Ways and Means Subpoena to US Treasury and IRS production pursuant to Tax Code §6301, found here.
May 14, 2019 - House OverSight Subpoena to Mazars, Trump’s Accounting Firm. (I how things are going with Alderman Burke remember he was Trump’s Accountant before he moved his business to Mazars) found here, update found here and Appeal found here.
For background and establish a factual predicate for the House Judiciary new Complaint seeking relief from the Court to compel McGahn to comply with the Congressional Subpoena. What you should pay attention to, is all the machinations about how Madam Speaker is blocking impeachment - do you understand that she signed off on this Complaint? That on page 2 it is crystal clear:
The Judiciary Committee is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel. But it cannot fulfill this most solemn constitutional responsibility without hearing testimony from a crucial witness to these events: former White House Counsel Donald F. McGahn II. McGahn, however, has defied a Congressional subpoena to appear before the Judiciary Committee, at the direction of President Trump, who claims McGahn is “absolutely immune” from testifying, a claim with no basis in law...
demand that White House staff generate false accounts of the President’s conduct; and to influence witnesses’ testimony or otherwise encourage witnesses not to cooperate with the investigation. In total, the Report provides evidence of ten separate episodes of potentially obstructive conduct by the President...
The Report makes clear that McGahn witnessed multiple serious acts of potential obstruction of justice by the President—including demanding that McGahn himself have the Special Counsel removed and then create a false record to conceal the President’s obstructive conduct.
On April 24, 2019 on the South Lawn, headed to Marine One, Trump that he and his White House will be “fighting all the subpoenas” issued by House Democrats. If you want to see and hear what “intent” and/or “state of mind” sound and act like watch this Time Magazine Clip:
Accordingly it is oddly amusing to see the House Judiciary use Trump’s own braggadocios comments - where he is oddly incredibly transparent. See paragraph number 7 (pages 4 and 5, respectively) on pages 5 and 6 the House Judiciary addressees Trump, Trump DOJ and current White House Counsel’s assertion that Don McGahn has “absolute immunity” - the mendacity is - not amusing. At all.
Also because I’m a firm believer in the “sharing is caring doctrine” I’ve taken the liberty of uploading the 1,059 page Complaint which includes Exhibits A thru KK to my public drive, found here. This will (I think) greatly assist you in cross referencing the copious footnotes. Full disclosure I almost always read everything I blog about but in this instance I haven’t read all 1,059 pages since I am presently stuck on Exhibit A which is the Mueller Hearing Transcript. Not to be overly critical of HPSCI or it’s Chairman I found that the House Judiciary Hearing was far more informative. At the inception of the Judiciary-Mueller Hearing it was abundantly clear that Chairman Nadler took the wise approach of handling the hearing as a marathon relay race. Meaning the Transcript reflects that House Judiciary Democrats worked as one cohesive unit during their five minute intervals.
While this might be unpopular I’d like to proffer something for you to consider; McGahn’s refusal to comply might be a good thing. Meaning (as previous detailed in the DC Bar Ethics Opinion 288) absent an actual Court Order compliance with a Congressional Subpoena is somewhat voluntary. But having a Court Order McGahn to comply oddly shields him from any perceived DC Bar Ethics violation. Yes I know that sounds off-putting but in my line of work it is mandatory that you view a legal issue from all sides.
For reference this is the April 22, 2019 Subpoena to McGahn - the schedule is 36 items long.
As you’ll note some of the items pre-date McGahn’s employment as White House Counsel. Moreover some of the requested documents relate to McGahn’s role in the Trump SF-86 debacles, the hiring of two known spousal abusers, OGE Financial Disclosures, the astronomical “financial disclosure waivers” and yes an long list of documents concerning Mueller’s Report, Volume II.
See May 7, 2019 House Judiciary Chairman Nadler’s Letter to McGahn via his counsel. Addressing McGahn’s failure to comply with a subpoena for documents and subsequent testimony “related to the Committee's ongoing investigation into obstruction of justice, public corruption and other abuses of power by President Trump, his associates and members of his Administration”
See May 20, 2019 Justice Department OLC Slip Opinion on McGahn and Trump’s “absolute immunity” - “long been recognized and arises from the fundamental workings of the separation of powers. This immunity applies to former senior advisers such as the former White House Counsel. According- ly, the former Counsel is not legally required to appear and testify about matters relat- ed to his official duties as Counsel to the President.“
See July 31, 2008 DDC Opinion concerning the Bush Administration invocation of “absolute immunity” for Harriet Miers. The Court held:
The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):
See USA v Nixon (1973) SCOTUS Oyez file, found here
See Nixon v Fitzgerald (1981) SCOTUS Oyez file, found here - SCOTUS held:
...that the President "is entitled to absolute immunity from damages liability predicated on his official acts." This sweeping immunity, argued Justice Powell, was a function of the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history."
The bottom line is yes the longer that Trump remains in office the higher likelihood is he will dismantle America’s alliances, threaten our Rule of Law and I’m not sure our Democracy is able to withstand the full onslaught on Trump’s authoritarian tendencies. Trump has proven he’s a common thug, bully and coward. He traffics in Hate and Rage. Of course Trump is racist, once a birther always a birther but instead of focusing on Trump’s “shiny new objects” via his specious tweets or public airing of his perceived grievances - stop giving him the attention he desperately craves. Although I find it amusing that the actually bullies & cowards also happen to be permanent “victims” that they are the aggrieved party when the reality is they are the ones who are being exactly what they accuse others of. Weird how that fine line of megalomania, borderline personality and narcissism tend to only heighten when given a position of power. It’s not like Secretary Clinton didn’t warn us what a Trump presidency would be like or that Russia really was interfering in our 2016 election...she did but 61+Million of you voted for him anyway.
My other point is Impeachment might be a viable option but given the time constants, I personally think the current approach has a far better outcome. Keep in mind, we are <453 days from November 3, 2020, subtract the Summer, Winter, Spring Congressional recesses (estimated) of 129 days*, then subtract Federal Holidays and then subtract Saturday & Sundays = <189 Legislative days to commence an impeachment trial. Of which right now the Democrats do not have enough votes in the Senate. Again I’m not saying Trump shouldn’t be impeached, but my personal preference is Impeach him at the ballot box on November 3, 2020 and I fully expect January 21st or 22nd of 2020 for Trump to be indicted for his FEC campaign Crimes - and I’m oddly okay with the ICC charging Trump with crimes against humanity (for the unlawful forced pregnancies he’s instructed his HHS-ORR to conduct), his human rights violations of thousands of unaccompanied minors...but then again I’m not entirely certain that ICC has providence over Trump.
*see majority leader - 2019 Legislative Calendar, found here.
While you're here, throw us a bone.
Mad Dog is thrilled to have Spicy in our PAC(k). We are proud to provide a space for her tireless, hard hitting, in-depth investigations. But we can’t do it without you.
Our numbers are growing. Our voices are being heard. Our campaigns are making a difference. Help us, and Spicy, continue to fight the good fight. Consider a donation to help support the work of Mad Dog PAC today.