Published May 19, 2021

Elie Honig:

Hey folks. Before we get started with today’s episode, I have some news to share with you about the Third Degree Podcast. Beginning the week of May 24th, the Third Degree feed, this feed where you’re listening now, will feature audio of my weekly notes to the cafe community, where I analyze news at the intersection of law and politics. We’ll be dialing back the current Monday, Wednesday, Friday format a bit because we’re turning our attention to a brand new podcast. I’m going to tell you now this thing will blow your mind when you hear it. I don’t want to say too much at the moment, but it draws on my experience as a prosecutor in the Southern District of New York. I can’t wait to tell you more about it in the coming weeks and I can’t wait to drop it. I can’t wait for you to hear it. So thanks for listening. As always, please keep sending us any thoughts and questions you may have to letters@cafe.com.

From Cafe and the Vox Media Podcast Network, this is Third Degree. I’m Elie Honig.

Don McGahn is back or at least he’s back in the news. I’m sure he doesn’t want to be, certainly Donald Trump and Bill Barr and others don’t want him to be, but to the credit of House Democrats, only very belated and partial credit as we’ll get into, they stuck to it. McGahn, you’ll probably recall, was White House counsel during the Trump presidency and he wound up at the center of one of the worst abuses of power, one of the most flagrant crimes committed by Donald Trump while he was in office and now, finally in 2021, Don McGahn is going to testify, according to House Judiciary Committee Democrats.

After years of posturing and politicking and litigation and foot dragging by all parties, the committee announced it has reached a deal with McGahn for him to finally, belatedly talk on the record. It’s too late, really for much to result from this, but for those who care about accountability, this will be an important moment and if DOJ intends to do its job properly, then yes, there could be real consequences and I’m talking here to the new attorney general and the new DOJ under Merrick Garland. If McGahn’s testimony happens, which it should, but as usual with all things relating to Trump and Barr and the Mueller report, it won’t be easy. So let’s break it down.

First, what did Don McGahn do and witness? A little refresher. McGahn has come to symbolize somehow in one human being two distinct aspects, two distinct themes of the Donald Trump presidency. On one level, McGahn reminds us of Trump’s most flagrant, unadulterated, unapologetic, and thus far consequence-free bursts of corruption and criminality that you may remember this juicy morsel from Robert Mueller’s report among the 10 or so instances of potential obstruction of justice that Mueller lays out in the report. The most flagrant one, the one where even Donald Trump’s staunchest defenders sort of say, “Yeah, that one’s kind of tough,” is this.

Trump wanted to fire Robert Mueller, mid Mueller investigation, and Trump sent word to Don McGahn to get it done. Now McGahn, lucky for Trump, sort of blew him off, just let the boss blow off steam, let it pass. By the way, it’s still very much an attempted obstruction of justice by Trump here.

If you try to obstruct, but you don’t succeed, that’s still a crime. Now months later, news stories came out about Trump’s effort to fire Mueller. So Trump calls Don McGahn into the Oval Office. Yes, this all happened in the Oval Office and he asked Don McGhan to lie about what had happened, to lie about the fact that Trump asked him to get rid of Robert Mueller and Trump asked McGahn to create a false document. Here’s a quote from the Mueller report, “The president then directed Rob Porter to tell McGahn, to create a record, to make clear that the president never directed McGahn to fire the special counsel.” End quote.

This is crazy stuff. This is obstruction 101 and by the way, Mueller’s decision to well, make no decision really looks worse and worse as time passes. Mueller laid it out clear as day. This wasn’t just obstruction. This was the mother of all obstructions. This was the most obstructive of obstructions. The president of the United States engaged in an obstruction spree to save his own hide and we all know what Mueller came back with, “I can’t say, either way that’s not for me.”

I wish Robert Mueller would have remembered, this is what prosecutors do. I know DOJ had this policy against indicting the sitting president. Fine. Don’t indict him, but tell us where you came out and by the way, this special counsel guidelines required him to, and I quote, “Explain his prosecution or declination decisions.” End quote.

Somehow that wasn’t clear enough for Mueller who was so solicitous of Donald Trump’s good name and into the void created by Mueller jumped none other than Bill Barr, who took all of about 48 hours to halfway pretend he was really considering the issue when we know he really wasn’t before he declared that Donald Trump had not obstructed justice.

Again, Trump told the White House council to create a false document, but according to Bill Barr, that’s not obstruction and we’re still learning plenty more about Bill Barr’s other intellectual and other dishonesty in doing that, including new revelations, just the other week, that Barr and DOJ fudged the truth to a federal judge about Barr’s obviously bogus quote, “Process,” for declaring Trump free and clear on obstruction. If you’re interested in this stuff, and if it ticks you off what Bill Barr did by the way, you will love my book Hatchet Man, which is coming out soon, you can order now, okay. Had to get a plug in there. It’s all outrageous stuff. Maybe even more so as we look back in hindsight.

Usually scandals tend to seem less outrageous and less offensive as time passes, but this one seems harder and harder to comprehend how Trump and Barr could have pulled it off with so little consequence, which brings us to the second aspect of the duality of Don McGahn, the utter inability or unwillingness of Congressional Democrats to ensure accountability.

So let’s go back to April, 2019. The Mueller report is out. Jaws are hanging about Trump’s abuse of power, including Don McGahn’s role in it and Jerry Nadler, the Democratic Chair of the House Judiciary Committee is full of fire and brimstone, he’s vowing accountability, maybe even impeachment. Now Nancy Pelosi is in the background going, “Yeah, no, not so fast on impeachment here,” and of course two other impeachments followed, but nothing relating to Mueller or obstruction. So again, it’s April, 2019, the Mueller report’s out, accountability now, and McGahn is key to that. He’s going to be the star witness and what does Jerry Nadler do? Nothing. He lets time pass. I’m sure he’s working behind the scenes to try to drum up political support from Republicans and from Democrats alike. Remember Pelosi was undermining his effort publicly, sort of subtly and probably behind the scenes and while this was going on, Nadler was asking for Don McGahn to testify.

Now McGahn makes like he’s willing sort of, but he’s really just waiting on Donald Trump to jump in and block it, which is exactly what happens. Trump declares, absolute immunity, a ridiculous notion, utterly ungrounded in law that the executive branch has free reign to decide at its whim, whether it feels like complying with any congressional subpoenas and guess where Trump got this ridiculous legal cover to hide behind, by the way, yeah, it’s Bill Barr, his DOJ authored a ridiculous opinion, which a federal judge would go on to completely trash calling it a quote, “Fiction that,” quote, “Got separation of powers exactly backwards,” but hey, cover is cover and Bill Barr provided it. So what does Jerry Nadler do then, he lets a month pass, two months, three months and finally, four months later, August 2019, he goes to court. Way to go Jerry and does he demand immediate expedited ruling? Does he convince the judge that this case needs to go right to the top of the pile, that constitutional interests are at stake, this is balance of power stuff and we might have a criminal in the White House? Nope.

His lawyers argue the case. Everyone sits back and waits for the result, which finally comes in, in late November and we’re now seven months out from the Mueller report. This is the fiction/exactly backwards decision, a stinging rebuke for Trump and Barr, a big win for Jerry Nadler. So cue up the McGahn testimony, right? Nope. We head to the Court of Appeals. Long story short, this one takes even more forever. An Appeals Court panel of three judges, first disagrees, says McGahn does not have to testify. Then the full Appeals Court reconsiders, reverses, sends it back and it’s been sitting there ever since. It’s ludicrous. It’s now May 2021, more than two years since the Mueller report and this case was still tied up in the courts. That’s the fault of the courts to be sure, but also on Nadler and the House Democrats for dragging their feet at the beginning and then not pushing hard enough after that and now finally, we have a resolution of sorts.

The parties have notified the courts, don’t worry about it, we worked it out. He’s going to testify, which brings us to the third topic, the deal.

So the details of this deal that’s been struck are a bit unclear. It appears McGahn will not be testifying in public. It appears he’ll be testifying behind closed doors, which takes away a lot of the sting of this for Donald Trump and Don McGahn. We also don’t know exactly what Don McGahn will say. It looks like he’s agreed to be constrained only to those things that he told Robert Mueller, which as we discussed are plenty bad enough. There are two big questions now.

First, will Donald Trump try to block this testimony? He actually can try if he wants. What he do is file a legal motion, claiming privilege, maybe executive privilege, maybe attorney client privilege, though that’s ridiculous. White House counsel is not the attorney for the president and there’s a crime fraud exception, by the way, if any attorney is talking to any client about a crime that they’re committing together, that is not privileged, but if the goal of Donald Trump is to continue delaying and why not, he’s been successful so far, he might as well try.

So we’ll see if Trump puts in a motion and tries to drag this out even farther. The second big question is, will anyone care if Don McGahn testifies and I believe he will, will it make a dent? Like I said, it looks like this is behind closed doors. Not seeing it, having no visual, no footage of it is going to undermine the effect, but either way, it should be remarkable for us all to be reminded that the president instructed the White House counsel to commit a crime, but then what? What’s left to be done? Obviously, Trump’s not getting impeached for this. Nancy Pelosi, I guess, ultimately got her way for a third time. Really the only possible entity who can do anything about this is the US Department of Justice. All indications are that DOJ has zero interest in doing this, in pursuing cases that may arise out of the Mueller report.

Joe Biden, it was leaked, has no interest in them doing this either, but DOJ should be looking at this. They really ought to, they appear to have no appetite to take on the former president, but that would truly be a shame. He committed serious crimes and if DOJ is just going to walk away and give them a pass, we really are going to need an explanation and it better be something more than just kind of felt old, it was yesterday’s headlines. What are you going to do? So Merrick Garland is the new attorney general. He has come in with a flourish. He has brought high profile indictments. He has made splashes. He has made clear, he intends to do his job aggressively, but if he doesn’t do this, if he just tries to sort of breeze past all these abuses of Donald Trump, because it’s too hard to go down that road, then he’s not doing his job.

If Don McGahn does testify, it will be important for the historical record and maybe, just maybe it will spur DOJ to do its job. Thanks for listening everybody and as always, please send us your comments, questions and thoughts to letters@cafe.com. Third Degree is presented by Cafe Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener and the cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jay Kaplan, Jeff Eisenman, Chris Boylan, Sean Walsh and Margo O’Malley.