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By Elie Honig
Don McGahn has finally testified. You might have missed it — by design, it wasn’t in public or live on television — but it happened, behind closed doors in a House Judiciary Committee meeting room, with only a dry transcript to show for it. Here’s the lowlight: McGahn testified that, when he was White House counsel, former president Donald Trump instructed him to fire special counsel Robert Mueller, and later Trump told McGahn to lie and to create a false document to cover it up — your basic, Obstruction 101 kind of conduct. And as if to make it as flagrant as possible, Trump did it right in the Oval Office.
McGahn’s testimony was remarkable, and damning, and essentially uncontested.
It also wasn’t new. We’ve known about McGahn’s account of the Oval Office encounter for over two years, since release of the Mueller report in April 2019 — it’s right there, on page 115 of Volume II. Yet nobody has done a damn thing about McGahn’s testimony since then. And nothing is going to happen to anybody now, either. Ultimately, the McGahn saga will go down in history as a holistic, system-wide failure.
A look back at the McGahn saga reveals a shortage of courage, integrity, and plain old competence by actors across the political spectrum. There’s plenty of blame to go around, and we need to name names. In rough sequential order of appearance, the following people contributed (to differing degrees) to this wide-scale breakdown in our public institutions.
- Donald Trump and Don McGahn. Let’s start at the start. Trump obviously bears primary blame here.He’s the one who tried to fire Mueller under flimsy pretense, mid-investigation. He’s the one who tried to get McGahn to cover up, to lie about the effort to remove Mueller, to gin up a fake document, to make like Roy Cohn and get dirty. Even Trump’s most ardent supporters — those who claim he somehow exercised a Constitutional imperative of the presidency when he fired FBI Director James Comey, when he tried to fire Mueller, when he dangled pardons — can’t justify asking a person to create a false document to mislead a pending investigation.
Don’t let McGahn play the hero here either. Sure, he ignored Trump’s instruction to can Mueller; in one of the new details to emerge from McGahn’s testimony, he admitted that he lied to Trump about the purported effort to remove Mueller because he was “trying to get off the phone.” (On this point, I sympathize; imagine the boss, constantly calling you at home, railing about how you need to do something absurd and probably illegal.) McGahn testified that he felt, “Oof. Frustrated, perturbed, trapped. Many emotions.” (The “oof” part is absolutely essential here, and I’m leaving it in the quote.) Yet McGahn (a lawyer) kept quiet about the whole incident — which was, let us not forget, criminal. And, as we’ll address in a bit, McGahn went right along with efforts to block his public testimony, or at least to delay it until way beyond when it would actually matter.
- Robert Mueller. I’ve come to this bottom line on Mueller: He did a remarkable job gathering facts and piecing together the complex jigsaw puzzle of Trump’s malfeasance and coverup — but he did a terrible job applying the law and stating a clear legal conclusion. We all remember Mueller’s infamous backwards-syntax, double-negative conclusion: “If we had confidence after a thorough investigation of
the facts that the President clearly did not commit obstruction of justice, we would so state…. [but] we are unable to reach that judgment.” Mueller took a pass despite the special counsel regulations, which call for a “report explaining the prosecution or declination decisions reached by the Special Counsel” — precisely the kind of thumbs-up or thumbs-down call Mueller declined to make. Mueller’s reticence left the door open for public spin and, worse, for dissemblers with bad intentions. Which leads us to…
- William Barr (You knew he’d be in here; he’ll be back later, too). Barr lied to the public about the Mueller report — don’t take it from me, take it from Mueller himself or from multiple federal judges — and he artificially withheld the report from the public for nearly a month as public opinion calcified around his distorted spin. Barr also declared, contrary to the weight of the evidence, the law, and the conclusion of over a thousand former federal prosecutors (including me), that Trump had not obstructed justice — without ever addressing the specifics, including Trump’s entreaty to McGahn to create a false document. If Barr had done his job — or even if he simply hadn’t lied — Trump might well have faced consequences, and McGahn would’ve been a crucial witness, or perhaps even a co-conspirator.
- Jerry Nadler (with an assist from Nancy Pelosi). After the release of the Mueller report in April 2019, House Judiciary Committee Chair Nadler talked big about exacting “accountability.” Yet it took him four months, until August 2019, to file a lawsuit seeking to compel McGahn’s testimony. All told, Nadler obtained live, public testimony from a grand total of one relevant fact witness: Corey Lewandowski, who predictably turned the House floor into a circus. All the while, Pelosi unsubtly undermined Nadler and made clear that, despite the rhetoric, she would never let impeachment proceed on the Mueller report; indeed, Democrats didn’t even include obstruction of the Mueller investigation as a tack-on even when they did get around to impeaching Trump over the Ukraine scandal.
- Trump (again), McGahn (again), and Barr (for an encore). This troika developed and hid behind the silly “absolute immunity” legal theory, which would empower the president and the Executive Branch to ignore Congressional subpoenas for any reason or for no particular reason at all. The federal courts — up to and including the Supreme Court — eventually rejected this silly artifice and its various iterations. A district court judge, Ketanji Brown Jackson (recently promoted to the Court of Appeals, deservedly), rightly demolished the theory as a “fiction” that gets separation-of-powers “exactly backwards.” But Barr’s artifice still did the job for Trump and McGahn: it enabled them to run out the clock until well beyond the 2020 election, into mid-2021, by which time McGahn’s testimony was more nostalgia than breaking news.
- The federal courts. Judge Brown Jackson gets high marks; she ruled correctly (in my view) and reasonably promptly. But then the Court of Appeals spent the next year and a half kicking the case back and forth between various panels. The litigation would still be ongoing right now if not for the negotiated agreement between the parties that finally brought McGahn to testify behind closed doors. The courts must do better. I know that cases take time to brief, argue, and decide, but there must be some prioritization, some urgency, to disputes that implicate core separation-of-powers principles.
- Merrick Garland. This one’s temporary, because Garland still can take meaningful action. But let’s be real: he won’t. Thus far, Garland has shown zero inclination to take on any of Trump’s worst abuses as president, seemingly looking for the path of least resistance and hoping to stroll past, hands in pockets and whistling, hoping nobody much cares anymore. I understand it would be extraordinarily difficult and messy to pursue any former president. But it’s also an ugly bit of nonfeasance to pretend not to notice just because it’s easier.
Someday, when people study the McGahn saga, they’ll ask: why were there no consequences to Trump, or anyone else, for such flagrant misconduct? The answer is that too many institutions, and too many people, simply failed to do their jobs.
Elie Honig is the author of the forthcoming book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” now available for pre-order.