Posted on May 11 2019
House Judiciary- expect Chairman Nadler to gavel in today’s hearing and then the fireworks but procedurally the House Judiciary Committee needs to commence the scheduled hearing:
”The immunity of the President's immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers," the department's opinion reads. "Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as Counsel to the President."
The Judiciary Chairman issued the following 3 page letter/response late last night. In Chairman Nadler’s statement I want you to read the following closely and carefully:
...White House directing former White House Counsel Donald F. McGahn II to defy a subpoena for his testimony tomorrow as part of the House Judiciary Committee’s investigation into obstruction of justice, corruption, and abuses of power by President Trump and his associates...”
This move is just the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this Committee. It is also the latest example of this Administration’s disdain for law. This identical approach was rejected by a federal court in the Miers case, which held that even senior advisors to the President cannot simply refuse to appear in response to a congressional subpoena. It is absurd for President Trump to claim privilege as to this witness’s testimony when that testimony was already described publicly in the Mueller Repo
I would expect the House Judiciary to move to hold Don McGahn in Contempt, specifically using the Inherent Contempt path...what you may fail to realize is this coordinated Obstructive Behavior between McGahn & Team-Trator-Trash-Trump is a high stakes gamble. Especially for McGahn who could very likely face a Bar Hearing and potentially disbarment...
By way of context, in late April of 2019 the Houss Judiciary subpoenaed former White House Counsel Don McGahn. Found here
McGahn goes to Oxford Union
About two weeks ago (April 22nd to be exact) the Oxford Union published the following 103 minute Q and A of “Dr Don McGahn”, See February 2019 announcement here. I would really like to know what the “improper prosecution request from President Trump” was:
“I'm going to talk tonight a little bit about the council to the president what that is what it's not the history of it that sort of thing and then I think I'llNsit down and take some hopefully not soprobing questions the council to the president is not a position created by a statute or a law it's something that was created first and foremost by the president goes back to 1943 the first White House Counsel was a fellow named Samuel Rosenman”
At minute marker 2:21 McGahn states the following, of course his innovation of both “presidential scandals” and the “TeaPot dome” Scandal clearly caught my attention. Given my previous write up of Contempt Of Congress, found here.
“...America had in its infancy in fact one looks to history a political scandal something that I know a little bit about for my many years of representing politicians the the first big one was the Teapot Dome scandal under President Harding and the Congress commissioned the Secret Service which then where they were not really the...”
Starting at minute marker 2:46, this is where McGahn’s speech becomes incredibly interesting and it might be worthwhile for House Democrats and their staff to carefully examine McGahn’s Q&A:
‘...Department of Treasury agents that did certain kinds of financial crime Congress authorized them to investigate the corruption and they were actually the the law enforcement agency that got to the bottom of that scandal Department of Justice didn't really emerge until later it's only been in the past hundred years but they are seeing much more as the legal institutional legal advisors to the executive branch if the executive branch the US government has to appear before the US Supreme Court that's not what the counsel to the president does the Solicitor General of the United States does that currently that's fellow named Noel Francisco I practice law with at Jones Day before becoming counsel to the president lawsuits...”
At the 4:00 minute marker, I noticed that McGahn used an “odd” term during his recitation of Facts surrounding Watergate. While most of you might say “so what”, I can tell you McGahn is a well seasoned litigator. He chooses his words with extreme care and pragmatism...
“...from the presidency this really began in earnest in the mid 1970s with the series of scandals labeled under the broad rubric of Watergate which began as a as a break-in to the opposition party's headquarters which uncovered slush funds hush money payments to the burglars and all sorts of sundry the White House Council at the time John Dean was involved too depending on who...”
The reason the “hush money” is of some import, in the Summer Of 2018 (predicated and later affirmed by the Special Counsel’s report) McGahn was unaware of Trump paying a porn star & playboy bunny hundreds of thousands of dollars just days before the 2016 election.
At minute marker 4:44, draws an indisputable deep line in the sand, specifically what he felt his “role”was and was not:
“...counsel to the president do well I think it's easier to state it in the negative up front what he does not do he doesn't represent the president in the president's personal capacity this was something that White House counsel's prior to Watergate kind of thought they did there really was not a need to test the issue but post-watergate it became....
“...I like to say I represent the pictures on the wall I represent represented the powers of the presidency not the man but the office always a challenge and it's a challenge I had through my career having represented a number of members of the US House and the US Senate and governors what role one plays is a lawyer a personal counsel will be representing their personal interest or you're giving them ethics advice as a as a professional government lawyer are you representing them giving them advice on their constitutional authority ...it's very it's very challenging to keep them straight and it's really the lawyers job to keep them straight for the client you know expect the client to do it that's why you have the White House Counsel other things the White House Counsel does in addition to ethics is help the various White House staff with their ethics there's a number of forms one must file to work in the government in the United States you must disclose virtually all of your finances anything that can pose a conflict of interest”
At which point McGahn moves on to discuss the Presidental Pardon Powers. I really wish Congress would zero in and ask McGahn directly which pardons did he work on and if there were discussion about pardons as an attempt to tamper with witnesses and their statements. But meh whadda I know:
“...we spend a lot of time doing that pardons people want pardons or commutation of their sentences that originates sometimes in the Department of Justice it doesn't have to the pardon power is is vested with the president in the text of the Constitution this is actually a throwback to when we were part of you to the powers of the crown and that's something that the counsel to the president reviews and makes...”
Again I can not emphasis the import of McGahn’s Oxford Union Q&A. Not to belabor this point, but if I were in Congress I’d red team the bleep out of this transcript and then embark on a multifaceted campaign on social media and letter writing. Because if you want to compel McGahn to comply with the Congressional Subpeanos here’s how you do it, you send a second subpoena to McGahn’s Chief Of Staff Ann Donaldson, the FBI for McGahn’s 302s and concurrently file a civil action against McGahn. Asking a Court to compel McGahn to comply and/or then start Contempt Of Congress proceedings coupled with imprisonment and hefty fines. Bottom line is McGahn is an officer of the Court. He took an oath
McGahn plays in a Cover Band?
Who Knew? Don’t stop believing...
Oh you think I’m wrong about McGahn being the bass player?
I should probably say that watching Don McGahn play a cover of the Kings of Leons “Sex on Fire” brings back some weird yet oddly endearing memories. When one of my minis was a toddler this was the one song I’d play to make them stop crying. It worked. Every. Damn. Time. Bless me Father for I have sinned, I enjoyed watching these videos. A little too much. Also for those of you who don’t know the legal community then naturally these videos of McGahn might seem odd to you. What you need to know is the vast majority of Attorneys I know have hobbies like McGahn’s. It’s a way for them to blow off steam. Personally speaking this kind of creative outlet is good for the mind, body and soul.
Oh you still think I’m pulling your leg that Don McGahn was the main bass player for a Cover Band? Well that’s kewl here’s your 11 minute 2011 promo video for Scott’s New Band
A promotional video part one of two of "Scott's New Band" filmed at Fagers Island on 61st Street and the Bay in Ocean City, Maryland to promote the band and the club......produced by unscene productions 2011......this piece is the long piece consisting of a variety of songs for promotion..........unscene.
Fast forward to 4:42 and you’ll see McGahn is also a keyboardist and bass player and he has now sufficiently ruined Journey for me. Oddly I’m a mix of WTFingF did I just watch. While vacillating to Duuuuudeeee Don McGahn is a legend to mother of dragons what did I just watch. Goddamnit now every time I hear this song I’ll see Don McGahn in his black cap & red “coke” T-shirt head banging
Don McGahn what Subpoena?
On May 7, 2019 the White House Counsel (McGahn’s replacement) instructs McGahn to not comply with the House Subpoena.
Shortly thereafter House Judiciary Chairman Nadler issued a rather scathing letter, in response to the White House Letter. It’s the following paragraph found on page 1 that essentially encapsulated the growing frustration with House Democrats and a White House who’s predictable MO is subterfuge mixed with obfuscation and sprinkled with equivocation to go with their plentiful helping of Obstruction:
As an initial matter, regarding the subpoenaed documents, the White House Counsel’s letter did not actually invoke executive privilege, but rather merely suggested at the 11th hour – without providing any supporting authority – that all requested documents “implicate significant Executive Branch confidential interests and executive privilege.” This blanket suggestion of potential privilege is entirely insufficient. As the district court for the District of Columbia held in Committee on the Judiciary v. Miers, a subpoena recipient is “not excused from compliance with [a] Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be made.” Nor can a “blanket assertion of privilege over all records generated after a particular date . . . pass muster,” without a “showing . . . that any of the individual records satisf[y] the prerequisites for the application of the privilege.”
Chairman Nadler’s direct and pointed language, specifically holding Don McGahn in Contempt Of Congress...well it’s refreshing to see someone in Congress finally drawing a line abs fighting for the Article I Power bestowed to Congress:
Turning to the other requirement of the subpoena – that Mr. McGahn appear before the Committee to provide testimony in two weeks – I fully expect that the Committee will hold Mr. McGahn in contempt if he fails to appear before the Committee, unless the White House secures a court order directing otherwise. Further, even if Mr. McGahn is authorized by court order to invoke executive privilege as to certain testimony, he still is required by law to “appear before the Committee to provide testimony, and invoke executive privilege where appropriate.”
Late in the afternoon of May 10, 2019, House Judiciary Chairman Nadler uploaded two letters.
The first letter, dated May 8th from Attorney General Barr to the White House. The focus of this letter is pretty obvious, Barr instructing Trump to play the “Executive Privilege” card. Even after the fact. It is still astounding that Trump allowed McGahn to meet with the Special Counsel’s Office with zero guardrails.
The second letter Chairman Nadler uploaded late last night is from the DOJ regarding AG Barr Contempt vote.
As previously discussed in painstaking detail here, AG Barr is not a “good guy” his obsequiousness and über partisanship will be an ever lasting stain on his decades long (and seriously questionable) career. William P Barr
According to yesterday’s WSJ article, the White House made two separate request to McGahn, in an attempt to push him to publicly state that Trump never instructed him to fire aka “get rid of Mueller”.
Mr. Trump has publicly denied asking Mr. McGahn to fire the Russia probe special counsel since the release of the report. Mr. Mueller’s report detailed that directive, and a subsequent request by Mr. Trump that Mr. McGahn deny that conversation ever happened, and said that Mr. McGahn rebuffed both. Last month, Mr. Trump tweeted: “If I wanted to fire Mueller, I didn’t need McGahn to do it, I could have done it myself.”
Privately, Mr. Trump asked White House special counsel Emmet Flood to inquire whether Mr. McGahn would release a statement asserting that he didn’t believe those interactions with the president—and Mr. Trump’s subsequent efforts to have Mr. McGahn deny news reports about that request—amounted to obstruction, the people familiar with the matter said. Mr. Flood didn’t respond to a request for comment.
Shortly after the WSJ article, the NYTimes published a separate report about McGahn and Trump, found here.
Mr. McGahn, who was the president’s first White House counsel, declined, one of the people said. His reluctance angered Mr. Trump, who believed that Mr. McGahn showed disloyalty by telling investigators for the special counsel, Robert S. Mueller III, about Mr. Trump’s attempts to maintain control over the Russia investigation.
The White House made one of the requests to Mr. McGahn’s lawyer, William A. Burck, before the Mueller report was released publicly but after the Justice Department gave a copy to Mr. Trump’s lawyers to read. Reading the report, the president’s lawyers saw that Mr. Mueller had left out that Mr. McGahn had told investigators that he believed Mr. Trump never obstructed justice. Mr. Burck had told them months earlier that his client had shared that belief with investigators.
What you may have forgotten is Don McGahn met with the Special Counsel’s team for nearly 30 hours. At no time did Trump assert Executive Privilege. Of all the witnesses that the Special Counsel Interviewed, Don McGahn is mentioned some 156+ times in Volume II - Trump Obstruction or Obstructive Actions. In sum, McGahn is referenced >500 times throughout the entirety of the Special Counsel’s 448 page report. Not to belabor the point, on page 216 (marked page 4 of Volume II) Of the Special Counsel Report:
...the President called McGahn at home and directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed. McGahn did not carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre.
When it comes to Trump and Obstruction Of Justice it is pretty clear that Don McGahn played a critical and pivotal role:
As further itemized in Volume II McGahn wasn’t a coffee boy or some underling nor was/is McGahn a liar, irrespective of what Trump tries to Gas Light the American People. The only proven pathological liar here is Donald J Trump. He will lie about everything and anything even if it means burning down all our Government Institutions. This is who and what Trump is: a criminal pathologically lying mobster running a criminal enterprise from our House:
What some of you may not know is pre-Trump McGahn, this FEC link will take you to his FEC page. Where McGahn served as a commissioner from 2008 to 2013. Remember that odd 2011 Cohen Trump PAC? Where I tweeted and blogged about ad nauseam? See (albeit disjointed) Archive Trump’s other PACs here
In short Trump’s efforts both past and present to mislead the American people, obstruct lawful and Constitutionally sound (and mandated by Article I) Congressional Investigations all while rage tweeting. Frankly it paints a picture of an out of control Executive who’s abusing the power of his Office and taking a torch to our laws and Constitution. Yet the silence from the GOP signals that they are enabling a lawless authoritarian “mad king” reign over our Government.
I do not understand why others are refusing to discuss the real possibility that Trump and his White House are actively engaged in witness tampering, specifically as it relates to Don McGahn. As noted by the Special Counsel’s Report, found on pages 9-11 of Volume II. Which reads in part:
Witness tampering. A more specific provision in Section 1512 prohibits tampering with a witness. See 18 U.S.C. § 1512(6 )(I), (3) (making it a crime to "knowingly use intimidation ... or corruptly persuade another person," or "engage in misleading conduct towards another person," with the intent to "influence, delay, or prevent the testimony of any person in an official proceeding" or to "hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense"). To establish corrupt persuasion, it is sufficient that the defendant asked a potential witness to lie to investigators in contemplation of a likely federal investigation into his conduct
At some point one has to assume that someone like Don McGahn will finally put his personal and reputational integrity above his feigned loyalty to Trump. Particularly since Trump acts with vindictiveness and intolerable cruelty. The only thing and person Trump is loyal to is himself.
Let’s not forget that McGahn was involved in the Rob Porter Scandal.
Or that McGahn was involved in real time Obstruction circa May 2018 and later affirmed by the GAO & Congress, found here.
McGahn’s fingerprints are all over the Jared & Ivanka Security Clearances, found here.
Or that days after Trump took the oath of office that then Acting AG Yates notified McGahn that Flynn was “susceptible to blackmail” by the Russians because the Russians knew Flynn had lied, found here. As later affirmed by Yate’s own testimony, found here. In fact here are thirteen separate entries related to Don McGahn, found here.
So before you go and canonize McGahn, understand that he’s not a hero or a bastion of unassailable “integrity”. He’s just as complicit and arguably more so because McGahn has spent decades equivocating and enabling the GOP and their groper in Chief. McGahn isn’t a Saint, so stop trying argue otherwise. Why? Neal Gorsuch and Brett Kavanaugh that’s why.
If you still doubt the veracity of my unwavering position as it relates to McGahn then perhaps you should re-read his 2011 Roll Call OpEd. The following paragraph certainly gives rise to the concerns about “who is McGahn’s real master” and to whom does McGahn really serve. I’d submit McGahn is beholden to the Koch brothers and the GOP:
Faced with such unyielding extremism, the court did the only thing it could: It ruled in favor of liberty, and against the government. And they did so in a way that was not limited to a pay-per-view movie; instead, the court’s broad pronouncements limit the ability of the government to regulate in the area of politics generally.
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