This is my question too. How can a president assert executive privilege (or anything else) against someone no longer employed in the executive branch? NDAs are meaningless, no? If someone testifying to Congress under subpoena refuses to answer a question, what possible excuse is there, except 5th Am? Attorney-client privilege? Isn’t that only for lawyers actually employed by the client - unlike McGhan (for example)?
And what about Mueller? I suppose there are things like national security, grand juries, but other than that?
If Trump’s defiance makes Nancy and the rest of the sclerotic House leadership reconsider beginning an official impeachment investigation based on Mueller’s evidence, I’m all for it.
But no one should ever mention Trump’s defiance as a reason why Dems are commencing the impeachment stuff. That makes it about process, reinforcing Trump’s “angry democrats”/ “presidential harrassment”/“no collusion” narrative.
Because the privilege belongs to the office, and not to any individual. Its not an NDA, the power to invoke privilege is inherent in the presidency, and by choosing to work for the presidency, you implicitly agree to respect the powers of the office.
Or at least that is what I would say if I was trying to stop someone from testifying…
Attorney client privilege belongs to the client and only goes to communications between that client and the lawyer.
A president could assert Executive Privilege against a former employee on matters that arose while the employee was still employed. However, the NDAs are not worth the paper they are written on.
Trump is on exceedingly shaky legal ground here—ie it’s nonexistent. Whether or not they call them impeachment proceedings is beside the point—his attorneys have zero grounds to withhold almost any of this stuff. Ie, with McGahn—they’ve waived any claim to privilege, at least three times over. And once waived, privilege is destroyed—no backsies. And he’s now a private citizen. Josh is right, in that the possible caveat is just how crooked these RW judges are—guess we’re about to find out. But adding an impeachment tag won’t make them more honest.
Also—Mr. Lemire, I think you generally do really solid work, and are a brave reporter and a credit to AP—but please stop repeating the lie about the level of Dotard’s cooperation, it is garbage. They refused to let Mueller even interview the subject! They deleted tons of emails, and encrypted others, per the Mueller report. Trump interfered directly with the investigation, by harassing Mueller’s boss and impugning Mueller and his team.
Marcy Wheeler in particular has done some excellent reporting on this, debunking the propaganda. I realize some (cough Maggie and Gullible Mikey) churn it out—but that doesn’t make it any less untrue. Emptywheel—I beseech you to read her reporting on this.
TPM: “…the Supreme Court has held that it derives from the president’s ability to carry out the duties the commander in chief holds under the Constitution.”
The executive privilege claims that Trump is asserting have nothing to do with national security or his role as commander-in-chief.
Correct—but Dotard has waived any claim over McGahn (now a private citizen) three times now, by my count. And once waived, it’s gone forever.
Also, I think any honest judge will look askance at a vast majority of these “claims”—Privilege is a shield and not a sword as they say; ie, it can’t be used to further a crime—and a lot of this could be charged as obstruction, IMO.
Exactly. Plus, I think the crime-fraud exception would cover a lot of this—as it did with Michael Cohen.
Last—Congress doesn’t recognize privilege, which Courts have honored. Which doesn’t necessarily mean we will see it all—but they absolutely should. The House Judiciary and Intelligence Committee’s, in particular.
I agree. If we’re right, and I think we are, House Dems should be on the lookout for such people. Maybe they are. The advantage here is that Trump has to go to court, not the House!
that’s an entirely different question from whether a former white house employee is bound by executive privilege.
Unlike attorney client privilege, executive privilege does not exist until it is actually invoked (although some interactions are generally assumed to be privileged.) That’s one of the things that Democrats are so pissed off about – Republicans show up to testify, then refuse to answer questions WITHOUT invoking executive privilege.
And nothing that has already been disclosed can subsequently be considered privileged.*
So we are looking at three different things here
Stuff that McGahn has already told Mueller’s investigators or the grand jury – not privileged
Stuff outside of Mueller’s purview that McGahn could be asked about – Privilege can be invoked
Details concerning stuff McGahn told Mueller, but which have not already been disclosed… Big Question Mark.
BUT there is a big asterisk here. In US v Nixon (and elsewhere) the courts have ruled that executive privilege must give way in criminal investigations. I think that Trump could argue that privilege was not invoked because of that — and that privilege still exists for the same information if Congress wants it disclosed for “oversight” purposes. In other words, the Trump’s argument would be that privilege was never waived; rather it count not be invoked for Mueller, but because it was never waived, it can still be invoked to protect information not yet disclosed to Congress.
Obstruction of justice is a process crime. While the Nixon impeachment established that process crimes could be an impeachable offense, the Clinton impeachment established that they were not convictable in all cases, i.e. that you can’t use a process crime in impeachment as a pretext to achieve partisan ends.
Trump is trying to frame his defiance of subpoenas as resistance to “angry Dems trying to overturn the election” – that the subpoenas serve no legitimate legislative function, and are merely a partisan effort to “get him” any way they can.
And the Dems strategy - and messaging – reinforces his framing. The response to calls to start an impeachment investigation, based on the findings of the Mueller report, is “we don’t have enough information.” SIMULTANEOUSLY, Dems are demanding documents and issuing subpoenas from at least 5 committees so far, and Trump is resisting those efforts.
The juxtaposition of all these subpoenas from mostly committees having nothing to do with Mueller, with the :“need for more info” response to call for impeachment investigations, sends a message “Democrats are spending all their time and energy looking for information to impeach Trump.”
Needless to say, its a bad look.
Create an impeachment committee to investigate Trump and write up articles of impeachment. Doing so allows Dems to focus and control the narrative. The current strategy is a disaster.
CAN the House order the arrest of officials who won’t appear at hearings?
If so, is there any reason not to do it?
If McGahn wants to testify against Trump’s wishes, how can they stop him from doing so?
They can charge someone with contempt and refer them for prosecution if they don’t appear. However, the DOJ will be ordered to ignore Congress by Trump. With that said, Congress has legacy authority to arrest anyone who refuses to appear and hold them indefinitely. Who would do the arresting if not the DOJ and where they would be held are both open questions.
It would set a precedent that the GOP would almost certain abuse in a horrific way as soon as they were in the majority again. Knowing them, they’d hire a right wing ‘Patriotic’ militia as a police force to arrest people before even issuing subpoenas and then continue holding them if they don’t like their testimony. Then they’d point fingers at Democrats and say ‘They started it!’. In my mind, this is still worth doing, because the alternative of establishing an unaccountable executive is worse.
McGahn is a private citizen. So long as he doesn’t reveal anything that violates lawyer-client privilege or reveals secret information, he is free to testify. Doing so without administration approval would pretty much end his employment prospects in conservative circles and could result in Barr arresting him after Trump accuses him of perjury.
Yes.
This is an extreme remedy being proposed for something that is not all that unusual. Committees are told “no” all the time in oversight investigations, usually with justification… yet since 1934, no one has been arrested using “inherent powers” of congress.
What is unusual is that Trump is order/coordinating a blanket defiance of subpoenas without regard to justification. This is not the fault of the individuals being called to testify, and they should not be punished because Trump is an asshole.
Nor is it a very good idea to create a precedent that the GOP is likely to abuse the moment it regains power.
The solution – make some of the subpoenas extraordinary. Start an impeachment investigation, and reissue the subpoenas – THEN threaten recalcitrant witnesses with arrest, fines or both under congress’ inherent powers
