CAFE Brief 05/14: Durham’s probe, McGahn’s key role, and Supreme Court activity


CAFE Brief 05/14: Durham’s probe, McGahn’s key role, and Supreme Court activity


Over the past few days, we learned that Attorney General Bill Barr has tapped John Durham, the U.S. Attorney in Connecticut, to probe the origins of Mueller’s investigation; former White House Counsel Don McGahn rebuffed Trump’s requests to publicly say that the president didn’t obstruct justice; and the Supreme Court overturned a 41-year-old precedent. Let’s dive in!

WASHINGTON, DC – JULY 11: White House Counsel Don McGahn heads to a meeting between Senate Majority Whip John Cornyn (R-TX) and Judge Brett Kavanaugh (C) at the U.S. Capitol July 11, 2018 in Washington, DC. U.S. President Donald Trump nominated Kavanaugh to succeed retiring Supreme Court Associate Justice Anthony Kennedy. (Photo by Chip Somodevilla/Getty Images)

Durham’s Probe

Attorney General Barr has assigned John Durham, the U.S. attorney in Connecticut, to investigate the origins of the Russia investigation, The New York Times reported late Monday. Durham’s inquiry is the third known investigation into aspects of the FBI’s counterintelligence probe, adding to one conducted by the Justice Department’s inspector general Michael Horowitz and another by John Huber, the U.S. attorney in Utah.

McGahn’s key role

Former White House Counsel Don McGahn reportedly twice rebuffed White House requests—before and after the release of the Mueller report—to publicly state that Trump did not obstruct justice. After McGahn declined the second request from White House lawyer Emmet Flood, Trump’s personal lawyer Rudy Giuliani publicly attacked McGahn’s credibility and questioned his recollection of events. The attacks on McGahn continued over the weekend, with Trump tweeting that he had “a much better chance of being fired than Mueller,” adding that he was “never a big fan” of McGahn.

According to the New York Times, Trump’s legal team is most concerned about McGahn’s testimony that Trump ordered him to seek Mueller’s dismissal in June 2017. As former SDNY prosecutor Elie Honig writes for CNN, Trump’s lawyers are right to be worried since McGahn’s testimony is “potentially devastating to Trump on the matter of obstruction of justice.” The Washington Post’s Greg Sargent argues that the White House’s efforts to prevent McGahn from complying with the House Democrats’ subpoena is “a key tell” regarding the extent to which the documents could leave Trump exposed to potentially damaging information.

Tax return subpoenas

On Friday, the House Ways and Means Committee issued subpoenas for six years of Trump’s tax returns to the heads of the Treasury Department and the IRS, setting a May 17 deadline to comply. The subpoenas, which were issued together with a letter from Committee Chairman Richard Neal, were sent days after the Treasury Department formally denied the Committee’s original request. In response to Treasury Secretary Steve Mnuchin’s accusation that the Committee “lacks a legitimate legislative purpose” to be given the President’s tax returns, Neal wrote that the Committee is “considering legislative proposals and conducting oversight related to” the audit and enforcement of federal tax laws against a president.

Rep. Dan Kildee (D-MI), a member of the Ways and Means Committee, said in a CNN interview that the Committee will take “every step possible to enforce this order,” including potentially holding Mnuchin in contempt. On the other side of the political aisle, Rep. Tom McClintock (R-CA) accused Neal of “weaponiz[ing] the IRS” and expressed concerns that Trump’s tax returns would be leaked to the press if the Committee is given access to them.

Giuliani’s Ukraine trip

On Friday night, Giuliani announced that he cancelled his trip to Ukraine where he hoped to convince the country’s President-elect to look into Joe Biden’s son’s links to a Ukranian company as well as the origins of the FBI’s investigation into Paul Manafort. Giuliani had previously stated that his trip’s agenda would not have constituted meddling because the 2020 election remains 18 months away. Meanwhile, Trump said that it would be “appropriate” for him to talk to Attorney General Bill Barr about opening an investigation into Joe Biden.

Supreme Court activity

In a 5-4 ruling on Monday, the Supreme Court overturned Nevada v. Hall, a 41-year-old precedent that permitted a state to be sued by a private party in the courts of a different state. Legal commentators have expressed concernsthat the Court’s conservative majority may be giving insufficient weight to judicial precedent. In the dissenting opinion, Justice Stephen Breyer states: “[t]o overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.”

On Monday, the Court also explained its decisions regarding the acceptable timeframe for filing a stay (i.e., a halt) of execution for two death penalty cases (Christopher Lee Price and Patrick Henry Murphy). The Court’s decisions signal a heightening of tensions over the topic as well as the conservative justices’ reluctance to accept death row inmates’ last-minute efforts to block executions. Justice Samuel Alito writes that the Court receives such requests for “virtually every execution” where in the majority of cases, “no good reason for the late filing is apparent.” He concludes that by “countenancing such tactics, the Court invites abuse.”

WASHINGTON, DC – DECEMBER 20: FBI Director Christopher Wray speaks during a news conference to announce a China-related national security law enforcement action December 20, 2018 at the Justice Department in Washington, DC. The Justice Department has filed charges against two Chinese national individuals, Zhu Hua and Zhang Shilong who believed to be associated with the Chinese Ministry of State Security, with conspiracy to commit computer intrusions, conspiracy to commit wire fraud, and aggravated identity theft. (Photo by Alex Wong/Getty Images)


What else?

  • For the first time, Trump publicly criticized FBI Director Christopher Wray in a Sunday tweet: “The FBI has no leadership. The Director is protecting the same gang…that tried to…overthrow the President through an illegal coup.”
  • A federal judge in D.C. announced he will decide today whether the House Oversight Committee’s subpoena for Trump’s personal and financial records issued to the accounting firm Mazars USA is legitimate. Former IRS criminal investigator Martin Sheil calls the Mazars subpoena an “existential threat” to Trump, with the potential to be more damaging than the release of Trump’s tax returns.
  • On Monday, two court filings revealed developments in cases started by Mueller: (1) Prosecutors in the Roger Stone case notified the court that the government has provided Judge Amy Berman Jackson relevant portions of the unredacted Mueller report; and (2) according to a joint status report, former Trump deputy campaign manager Rick Gates continues to cooperate with the government and is not ready to be sentenced.
  • CNN reports that Senate Intelligence Committee Chairman Richard Burr was negotiating to secure Donald Trump Jr.’s testimony since last December, reaching an agreement with him “to voluntarily be interviewed on two separate occasions.” The president’s son ultimately backed out both times, leading Burr to issue a subpoena for his testimony last week.

Stay Informed,

Adrienne Cobb & the CAFE team

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