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A weekly Note from Elie is part of the CAFE Brief. An audio recording of the note is part of the CAFE Insider membership. Please enjoy Elie reading this week’s note, “The Lunacy of the McGahn Saga Says It All” and read his note in your inbox every Friday.

Dear Reader, 

It is August 2020 and we are, somehow, still talking about the Don McGahn case.  Worse yet: it’s the still-pending Don McGahn case.  This is lunacy.  Something is broken.  The McGahn saga perfectly encapsulates how President Donald Trump has gotten away with everything, while well-intentioned would-be intervenors are rendered helpless by a legal system unequipped to handle a president who couldn’t give a damn about laws, norms, or fair play.

First, a recap.  In his report, special counsel Robert Mueller laid out a compelling case that Trump repeatedly obstructed the federal investigation of Russian interference in the 2016 election.  Notably, in 2017, Trump asked McGahn to have Mueller fired, and then later asked McGahn to lie and deny that Trump had made the previous request of him.  So: obstruction, followed by obstruction on top of obstruction.  Flagrant stuff, and any non-president would have been indicted for this conduct.  If you were trying Trump for obstruction, McGahn would be your star witness.

The Mueller report came out in April 2019, and House Judiciary Chair Jerry Nadler breathed fire about ensuring accountability.  Trump openly announced that his defense strategy would be categorical stonewalling: “We’re fighting all the subpoenas,” he proclaimed unapologetically from the White House lawn.  

Nadler fired back by — well, by inexplicably waiting nearly four months, until August 2019, to file a lawsuit seeking to enforce the McGahn subpoena.  The White House, in turn, invoked an essentially made-up doctrine of “absolute immunity,” claiming that it had the right to instruct executive branch officials to simply ignore any congressional subpoena, anytime, for any reason.  Ridiculous, but good enough to drag out a lawsuit.

That litigation proceeded at the pace of James Harden getting back on defense (for non-NBA fans: slooooow).  In November 2019, a federal district court judge trashed the White House’s absolute immunity claim, ordering McGahn to comply with the subpoena.  The judge pointedly dismissed the White House’s argument as “a fiction” that gets the concept of constitutional separation of powers “exactly backwards.”  Casting side-eye at Trump, the judge reminded us that “Presidents are not kings.”  (We were already six months out from publication of the Mueller report at this point.)

Three months later, the Court of Appeals stepped in and essentially “glitched out,” as the kids say.  In a bizarre and weak-kneed decision, two of three judges on the panel ruled, in effect, that they cannot rule.  The panel majority whimpered that the case “asks us to settle a dispute that we have no authority to resolve,” and huffed that the case is “unfit for judicial resolution.”  Translation: what do you want us to do, judge or something? 

There was no way that botched ruling would stand and, sure enough, the Court of Appeals eventually took the extraordinary step of granting “en banc” review (meaning review by all active judges).  This time, the court got it right, holding that yes, Congress can subpoena the executive branch and yes, the courts can enforce those subpoenas.  The good news is, the court finally got it right.  The bad news is it took another six months, until August 2020, to straighten things out.  

Great.  Now McGahn must testify, right?  Oh no.  We’re still nowhere near done.  The case now will likely go both up and down.  It’ll go up if and when the Trump administration appeals the ruling that courts can enforce Congressional subpoenas; the Supreme Court is unlikely to accept the case but it’ll take time to consider the request.  And the case will go back down because the original Court of Appeals panel now must render an actual substantive ruling on the McGahn dispute (which, you’ll recall, it ducked the first time around).  If you’re holding your head in confusion and disgust, I’m with you.

Through it all, the clock has been ticking.  The current Congress (and its McGahn subpoena) formally expire in January 2021, when a new Congress takes the oath.  Sure, a new Congress could re-issue the subpoena.  But we are now so far beyond the Meuller report — in terms of both the calendar and countless intervening scandals — that McGahn has become more of a historical footnote than a pressing, relevant eyewitness.  Though McGahn has important testimony to give, it would feel bizarre and untimely to compel his testimony in, say, late spring 2021.  The general public reaction would likely be: “This guy?  Talking about that old stuff?”  And even if McGahn does testify, there simply isn’t going to be an impeachment, now, based on the Mueller report.  The ship has sailed, and Trump, once again, has slipped free.

There are plenty of people, and entities, at fault here.  I’d split this particular blame pie into four parts, not all equal.  From most culpable on down: Trump, McGahn, Nadler, and the courts.

Obviously Trump comes first.  When you announce that your strategy will be to defy the law, smash existing norms, fight every subpoena, and pull out every stop to keep all witnesses silent, then yeah, it’s on you when an investigation hits a wall.  

Next up is McGahn himself.  Enough with these half-assed patriots.  Who do McGahn and John Bolton think they’re kidding with their “Oh, I would have testified if only such-and-such had happened but I guess it didn’t, what a shame” nonsense.  McGahn and Bolton both could have testified in a heartbeat, if they wanted to — or even if they didn’t want to but felt compelled by patriotic duty.  Just look at Lt. Col. Alexander Vindman, Ambassador Marie Yovanovitch, and others who defied the Administration’s stonewalling, took an oath, and told the world what they know.  Sorry Don McGahn: you go in the self-over-country pile.

The bronze medal goes to Nadler.  Throughout his tenure as Judiciary Committee Chair, he has offered up plenty of tough talk but next to nothing when it comes to action.  Nadler took over four months to subpoena McGahn and get this thing started, and then meekly failed to urge the courts to stop dragging their feet interminably.  Through it all, Nadler has succeeded in compelling public testimony from a grand total of one — one! — eyewitness to Trump’s misconduct: Corey Lewandowski, who had nothing to say that was both truthful and relevant, and seemed to relish his chance to sneer at the proceedings.  Nadler didn’t cause the fire here, but he has failed in his responsibility to put it out.

Finally, the courts.  I know: litigation takes time.  As a litigant, I’ve thought to myself more times than I can count, “Why is this judge taking so long on this case?”  But do you know how hard it is for a judge to move a case quickly?  As hard as it is for that judge to grab a redweld and say “I’m doing this one now.”  Judges certainly are smart enough to differentiate the big cases from the routine ones.  Here’s a tip:  if it’s a case involving a fender bender with a U.S. Postal Service truck, put it in the normal pile.  But if it’s a case involving fundamental constitutional separation of powers between Congress and the Executive Branch, put a red post-it on the file and get to that one first.  

The McGahn case encapsulates the systemic abuses and failures that have enabled Trump to slip true accountability.  He obstructed the hell out of justice, yet he will slide through untouched for it.  And there’s a guy who saw it happen firsthand, but we likely will never hear from him, or not in time to do much about it.  Between Trump’s bold obstructionism, McGahn’s false patriotism, Nadler’s exasperating reticence, and the courts’ stubborn inertia, this particular quest for justice has been delayed — and ultimately will be denied.  

Stay Informed, 

Elie

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Dear Reader, 

It is August 2020 and we are, somehow, still talking about the Don McGahn case.  Worse yet: it’s the still-pending Don McGahn case.  This is lunacy.  Something is broken.  The McGahn saga perfectly encapsulates how President Donald Trump has gotten away with everything, while well-intentioned would-be intervenors are rendered helpless by a legal system unequipped to handle a president who couldn’t give a damn about laws, norms, or fair play.

First, a recap.  In his report, special counsel Robert Mueller laid out a compelling case that Trump repeatedly obstructed the federal investigation of Russian interference in the 2016 election.  Notably, in 2017, Trump asked McGahn to have Mueller fired, and then later asked McGahn to lie and deny that Trump had made the previous request of him.  So: obstruction, followed by obstruction on top of obstruction.  Flagrant stuff, and any non-president would have been indicted for this conduct.  If you were trying Trump for obstruction, McGahn would be your star witness.

The Mueller report came out in April 2019, and House Judiciary Chair Jerry Nadler breathed fire about ensuring accountability.  Trump openly announced that his defense strategy would be categorical stonewalling: “We’re fighting all the subpoenas,” he proclaimed unapologetically from the White House lawn.  

Nadler fired back by — well, by inexplicably waiting nearly four months, until August 2019, to file a lawsuit seeking to enforce the McGahn subpoena.  The White House, in turn, invoked an essentially made-up doctrine of “absolute immunity,” claiming that it had the right to instruct executive branch officials to simply ignore any congressional subpoena, anytime, for any reason.  Ridiculous, but good enough to drag out a lawsuit.

That litigation proceeded at the pace of James Harden getting back on defense (for non-NBA fans: slooooow).  In November 2019, a federal district court judge trashed the White House’s absolute immunity claim, ordering McGahn to comply with the subpoena.  The judge pointedly dismissed the White House’s argument as “a fiction” that gets the concept of constitutional separation of powers “exactly backwards.”  Casting side-eye at Trump, the judge reminded us that “Presidents are not kings.”  (We were already six months out from publication of the Mueller report at this point.)

Three months later, the Court of Appeals stepped in and essentially “glitched out,” as the kids say.  In a bizarre and weak-kneed decision, two of three judges on the panel ruled, in effect, that they cannot rule.  The panel majority whimpered that the case “asks us to settle a dispute that we have no authority to resolve,” and huffed that the case is “unfit for judicial resolution.”  Translation: what do you want us to do, judge or something? 

There was no way that botched ruling would stand and, sure enough, the Court of Appeals eventually took the extraordinary step of granting “en banc” review (meaning review by all active judges).  This time, the court got it right, holding that yes, Congress can subpoena the executive branch and yes, the courts can enforce those subpoenas.  The good news is, the court finally got it right.  The bad news is it took another six months, until August 2020, to straighten things out.  

Great.  Now McGahn must testify, right?  Oh no.  We’re still nowhere near done.  The case now will likely go both up and down.  It’ll go up if and when the Trump administration appeals the ruling that courts can enforce Congressional subpoenas; the Supreme Court is unlikely to accept the case but it’ll take time to consider the request.  And the case will go back down because the original Court of Appeals panel now must render an actual substantive ruling on the McGahn dispute (which, you’ll recall, it ducked the first time around).  If you’re holding your head in confusion and disgust, I’m with you.

Through it all, the clock has been ticking.  The current Congress (and its McGahn subpoena) formally expire in January 2021, when a new Congress takes the oath.  Sure, a new Congress could re-issue the subpoena.  But we are now so far beyond the Meuller report — in terms of both the calendar and countless intervening scandals — that McGahn has become more of a historical footnote than a pressing, relevant eyewitness.  Though McGahn has important testimony to give, it would feel bizarre and untimely to compel his testimony in, say, late spring 2021.  The general public reaction would likely be: “This guy?  Talking about that old stuff?”  And even if McGahn does testify, there simply isn’t going to be an impeachment, now, based on the Mueller report.  The ship has sailed, and Trump, once again, has slipped free.

There are plenty of people, and entities, at fault here.  I’d split this particular blame pie into four parts, not all equal.  From most culpable on down: Trump, McGahn, Nadler, and the courts.

Obviously Trump comes first.  When you announce that your strategy will be to defy the law, smash existing norms, fight every subpoena, and pull out every stop to keep all witnesses silent, then yeah, it’s on you when an investigation hits a wall.  

Next up is McGahn himself.  Enough with these half-assed patriots.  Who do McGahn and John Bolton think they’re kidding with their “Oh, I would have testified if only such-and-such had happened but I guess it didn’t, what a shame” nonsense.  McGahn and Bolton both could have testified in a heartbeat, if they wanted to — or even if they didn’t want to but felt compelled by patriotic duty.  Just look at Lt. Col. Alexander Vindman, Ambassador Marie Yovanovitch, and others who defied the Administration’s stonewalling, took an oath, and told the world what they know.  Sorry Don McGahn: you go in the self-over-country pile.

The bronze medal goes to Nadler.  Throughout his tenure as Judiciary Committee Chair, he has offered up plenty of tough talk but next to nothing when it comes to action.  Nadler took over four months to subpoena McGahn and get this thing started, and then meekly failed to urge the courts to stop dragging their feet interminably.  Through it all, Nadler has succeeded in compelling public testimony from a grand total of one — one! — eyewitness to Trump’s misconduct: Corey Lewandowski, who had nothing to say that was both truthful and relevant, and seemed to relish his chance to sneer at the proceedings.  Nadler didn’t cause the fire here, but he has failed in his responsibility to put it out.

Finally, the courts.  I know: litigation takes time.  As a litigant, I’ve thought to myself more times than I can count, “Why is this judge taking so long on this case?”  But do you know how hard it is for a judge to move a case quickly?  As hard as it is for that judge to grab a redweld and say “I’m doing this one now.”  Judges certainly are smart enough to differentiate the big cases from the routine ones.  Here’s a tip:  if it’s a case involving a fender bender with a U.S. Postal Service truck, put it in the normal pile.  But if it’s a case involving fundamental constitutional separation of powers between Congress and the Executive Branch, put a red post-it on the file and get to that one first.  

The McGahn case encapsulates the systemic abuses and failures that have enabled Trump to slip true accountability.  He obstructed the hell out of justice, yet he will slide through untouched for it.  And there’s a guy who saw it happen firsthand, but we likely will never hear from him, or not in time to do much about it.  Between Trump’s bold obstructionism, McGahn’s false patriotism, Nadler’s exasperating reticence, and the courts’ stubborn inertia, this particular quest for justice has been delayed — and ultimately will be denied.  

Stay Informed, 

Elie