CAFE Brief: Executive privilege, McGahn’s subpoena, and Mueller’s testimony

CAFE Brief: Executive privilege, McGahn’s subpoena, and Mueller’s testimony


In just the past few days, President Trump asserted executive privilege over the unredacted Mueller report, former White House Counsel Don McGahn defied a congressional subpoena, and the president’s personal lawyer Rudy Giuliani says, “we’re meddling in an investigation.” Let’s dive in!


WASHINGTON, DC – MAY 30: Rudy Giuliani, former New York City mayor and current lawyer for U.S. President Donald Trump, speaks to members of the media during a White House Sports and Fitness Day at the South Lawn of the White House May 30, 2018 in Washington, DC. President Trump hosted the event to encourage children to participate in sports and make youth sports more accessible to economically disadvantaged students. (Photo by Alex Wong/Getty Images)

Giuliani’s Ukranian adventure

The New York Times reports that Trump’s personal lawyer Rudy Giuliani plans to travel to Ukraine to urge the nation’s president-elect, Volodymyr Zelensky, to discredit Mueller’s investigation of Russian interference in the 2016 U.S. election and undermine the case against Paul Manafort. Giuliani also wants Zelensky to look into Joe Biden’s son’s involvement in a gas company owned by a Ukrainian oligarch.

As The Times reported, “Giuliani’s plans create the remarkable scene of a lawyer for the president of the United States pressing a foreign government to pursue investigations that Mr. Trump’s allies hope could help him in his re-election campaign.” When asked about his intentions, Giuliani said, “We’re not meddling in an election, we’re meddling in an investigation, which we have a right to do.”

Contempt of Congress & executive privilege

The House Judiciary Committee voted on Wednesday to hold Attorney General Barr in contempt for refusing to comply with a subpoena seeking the unredacted Mueller report and its underlying evidence. It remains to be seen when the full House will vote on the matter, and whether Barr will attempt to negotiate during the intervening period.

Hours before the Committee’s vote–and at Barr’s request–President Trump asserted a “protective” executive privilege over the Mueller report and the underlying evidence. Jonathan Shaub explains in Lawfare that a “protective” assertion of executive privilege covers all information requested in the subpoena and “gives the president and attorney general time to make a decision as to which specific documents are deserving of a conclusive claim of executive privilege.”

William Marshall, a University of North Carolina law professor, finds the executive privilege assertion unprecedented, telling The New York Times that “a president who refuses to respond to congressional oversight is taking the presidency to new levels of danger.” House Speaker Nancy Pelosi expressed a similar opinion on Thursday, saying the U.S. is in the midst of a “constitutional crisis.”

In an op-ed for The Hill, George Washington University professor Jonathan Turley argues that Democrats have launched the “weakest possible contempt claim” against the administration, which is unlikely to be successful in the courts. Turley posits that this “superficial charge” undermines the House’s “credibility in the ongoing conflicts with the White House.”

McGahn’s subpoena fight

William Burck, who represents former White House Counsel Don McGahn, informed the House Judiciary Committee that the White House has instructed McGahn not to comply with a subpoena for documents related to Mueller’s obstruction of justice investigation. Burck references a letter addressed to Committee Chairman Jerry Nadler from White House Counsel Pat Cipollone who states that “White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.” Chairman Nadler responded to Burck with a letter threatening to hold McGahn in contempt of Congress “unless the White House secures a court order directing otherwise.”

Former Deputy Assistant Attorney General Harry Litman writes in The Washington Post that “the legal case for executive privilege is strained at best” because Trump has already declined to assert privilege when the Mueller report was transmitted to Congress. However, there is a case to be made that Trump has waived privilege as to the portions of McGahn’s testimony that are already public. Jonathan Shaub argues in Lawfare that it’s likely a court will uphold an executive privilege claim for any testimony not explicitly contained in Mueller’s report.

Mueller’s testimony

Trump told reporters during a news conference on Thursday that he’ll leave it up to Barr to decide whether Mueller can testify before Congress, changing course from his earlier declaration that Mueller should not testify. The President appeared to tone down his proclamation of “complete and total exoneration,” claiming that the Mueller report “essentially” cleared him of obstruction of justice. The House Judiciary Committee has requested that Mueller testify no later than May 23, but Chairman Nadler and House Intelligence Committee Chairman Adam Schiff have said that if necessary the House would subpoena Mueller if necessary.

Former acting Solicitor General Neal Katyal, who drafted the special counsel regulations, recently explained that the regulations were designed to allow a special counsel to testify before Congress. According to Katyal, once Mueller leaves the Justice Department, neither Trump nor Barr can prevent Mueller from testifying. In contrast, attorney David Schoen, writing for Fox News, argues that the special counsel reports exclusively to the attorney general, not to Congress and as such, “it is for the attorney general alone to determine what, if any, information to release publicly.”

WASHINGTON, DC – DECEMBER 13: Donald Trump Jr. (R) arrives at the Senate Hart Office Building for a closed door meeting with Senate Intelligence Committee December 13, 2017 on Capitol Hill in Washington, DC. Donald Trump Jr. is scheduled to meet with the committee in its ongoing investigation of allegations of Russia’s interference in the 2016 U.S. presidential election. (Photo by Win McNamee/Getty Images)


What else?

  • Justice Department officials announced that the U.S. seized a North Korean cargo ship allegedly used to export coal on grounds that it violated international sanctions.
  • The House Intelligence Committee issued a subpoena to the Justice Department on Wednesday, seeking the unredacted Mueller report, the underlying evidence, and “all counterintelligence and foreign intelligence materials” from the investigation.
  • The Senate Intelligence Committee subpoenaed Donald Trump Jr. to answer questions about his previous testimony to the Committee regarding the Russia investigation, setting up a potential standoff between Congress and the President’s son.
  • Federal Judge Amy Berman Jackson, presiding over the case against Roger Stone, ordered the Justice Department to provide her with the unredacted sections of the Mueller report that relate to Stone–roughly 24 pages–in order to determine if Stone’s legal team has a right to use it in his defense.
  • Trump granted a full pardon to former Army 1st Lieutenant Michael Behenna, who was convicted by a military court for the killing of an unarmed Iraqi prisoner.

Stay Informed,

Adrienne Cobb & the CAFE team

We hope you’re enjoying the CAFE Brief. Email us at [email protected] with your suggestions of articles and analysis of legal and political news. We look forward to your feedback as we continue to expand CAFE content.