Begun, the executive-privilege wars have: White House telling McGahn to defy House Judiciary subpoena


The executive privilege hammer has struck. Will Donald Trump get nailed for it? According to Sarah Huckabee Sanders, the White House will tell former counsel Don McGahn not to comply with a congressional subpoena aimed at records of his work with Trump, and later his testimony. The press secretary told ABC News that the Trump administration considers the “case closed” after the Mueller report:

The White House will instruct former White House counsel Donald McGahn not to comply with a subpoena from House Democrats for documents related to the special counsel Robert Mueller’s investigation, according to White House press secretary Sarah Sanders.

“I don’t anticipate that that takes place,” Sanders said on ABC News’ “The Investigation” podcast Tuesday, when asked whether the White House will allow McGahn to comply with Democrats’ request. “We consider this to be a case closed and we’re moving forward to do the work of the American people.”

The “case closed” quip must have gone out from the West Wing as a talking point. Mitch McConnell used it in a speech to which his office alerted media with that specific phrase as a quote. We’ll have more on McConnell’s speech later, but it now looks like Republicans on both ends of Pennsylvania Avenue will put pressure on Democrats to move on, so to speak, after the end of Robert Mueller’s investigation.

In fact, some Republicans are publicly saying they’re not even interested in hearing from Mueller himself, even though executive privilege claims won’t stop him from appearing if called. Sen. Thom Tillis says he agrees with Senate Judiciary chair Lindsey Graham on that point:

Absent a whole lotta movin’ on from House Democrats, that strategy is doomed to failure. Mueller will eventually appear at a committee hearing controlled by Democrats, which means they’re going to hear from Mueller whether they like it or not. At some point Graham may have to call Mueller to counter anything Jerrold Nadler uses from House testimony, at which point other Republicans might also rethink their current “move on” positions.

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What about executive privilege? As long as Trump makes a valid claim, he can keep McGahn from testifying to any conversations they had — beyond what Mueller put in the record, of course, and excepting any discussions that involve patent illegality. As Mueller made clear in his report, Trump didn’t actually do anything illegal or even threaten to do so. The question for obstruction that Mueller left open was whether Trump had a corrupt intent behind any otherwise lawful exercises of his presidential authority.

Now that Mueller has released the content of those conversations, House Democrats insist that executive privilege no longer applies. Current White House counsel Emmet Flood addressed that issue in an angry letter to Mueller just after the release of his lightly redacted report. Flood took Mueller to task for exposing conversations that would have a clear executive-privilege claim after the White House agreed to a limited restraint on such claims to allow Mueller to do his job. Mueller took that extraordinary step without consulting the White House first, Flood insisted, when both sides agreed that such material would be “presumptively privileged.” Instead, Flood accused Mueller of violating that agreement to write a political document instead of meeting his responsibilities to make a prosecutorial decision to indict or decline.

If that’s true, then the White House has a much stronger case for executive privilege on McGahn and other witnesses quoted by name in Mueller’s report. Either way, though, it will be months before federal courts rule on the validity of the claim and Nadler’s subpoena. This standoff will become the new normal in Washington DC, and that new normal may well last a lot longer than Trump’s presidency. In fact, it started well before it with Eric Holder’s bizarre claim of executive privilege in Operation Fast and Furious, a scandal in which hundreds of people actually died. This is just further escalation on all sides.

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