Is Trump Invoking Executive Privilege Or Not?

Invoke the privilege to prevent Don McGahn from testifying, which won't prevent him from testifying, or GTFO.

(Photo by Chip Somodevilla/Getty Images)

Congress has subpoenaed former White House Counsel, Don McGahn, to testify, and President Donald Trump has vowed to “fight all the subpoenas.”

Here’s the thing: I don’t know what that means. I don’t know what Trump means when he says he’s going to “fight” the subpoenas. Does he mean he’s going to wrestle Jerry Nadler? Does he mean he’s going to ignore them and hope they go away? Maybe Trump intends to launch a Tomahawk Missile at the subpoena, which will certainly show the subpoena who’s boss… unless it has learned how to copy itself.

THIS ISN’T ‘NAM, DONNY, THERE ARE RULES. If the Trump administration intends to “fight” Congressional subpoenas, they have to make a legal argument. “This is so unfair” is not a legal argument. “No collusion” is not a legal argument. “A bunch of angry Democrats” is not a legal argument. Donald Trump has, thus far, made NO argument or invocation that counts as a colorable legal reason to ignore a Congressional request for testimony.

Instead, we’re doing what we always do, trying to imagine Trump’s legal arguments for him, since the President of the United States is evidently too stupid to make any himself.

One might think that the former White House Counsel has a pretty solid attorney-client privilege argument. But, in this case, McGahn is unlikely to be able to successfully hide behind that privilege. Here’s a quick primer on some of the ways to pierce the veil of attorney-client privilege. Trump and McGahn have already done various things that might defeat the privilege. It appears, from the Mueller report, that some of the conversations at issue between McGahn and Trump took place with a third party present, and that ordinarily defeats the privilege. Further, McGahn talked about his private conversations with third parties who arguably were not part of the same shared legal interest as the president. And McGahn has already testified to Mueller, without invoking attorney-client privilege. And… oh yeah, attorney-client privilege only covers legal advice, not any “crazy shit” the president might say.

McGahn’s a/c privilege argument is weak, so if he doesn’t want to testify, McGahn might need to invoke executive privilege. Except… McGahn CAN’T invoke executive privilege. The only person who can invoke executive privilege is the president.

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Which brings me back to the question of what, the hell, does Donald Trump mean when he says he’s “fighting” the subpoenas. Is he actually invoking executive privilege? Or is he just threatening to invoke executive privilege in hopes that Democrats give up before he has to invoke it (a not unreasonable hope, because Democrats). Trump keeps saying that he “could have” invoked executive privilege, but he hasn’t yet. That’s a bit like a person saying, “I could stop shooting heroin ANY TIME I WANT.” I’m not interested in what Trump could do or might do or totally will do maybe. I’m interested in what he IS DOING.

If Trump invokes executive privilege, then WE CAN HAVE A PROCESS. Then we can have a normal goddamned legal process like the law intended us to have.

Like attorney-client privilege, Trump’s executive privilege arguments are not as strong as they might seem at first glance. The issue, again, is that McGahn has already talked to investigators. As far as we know, executive privilege cannot be retroactively invoked because you suddenly get sick of playing along. From the Washington Post:

“It seems to me executive privilege was waived when McGahn was permitted to give testimony and to be interviewed by special counsel Mueller,” said former Watergate prosecutor Richard Ben-Veniste. “I don’t see how the White House can assert executive privilege with something that has already been revealed. To use the Watergate expression, ‘You can’t put the toothpaste back in the tube.’”

Here’s my point: right now, the headline is not “Trump Fights Congressional Subpoenas.” The headline is “Trump Pissed Laws Exist.” He doesn’t really have great legal grounds upon which to fight the subpoenas, and as of now he’s not even asserting any. He’s just a bloviating red-faced monkey throwing feces at the glass in hopes something sticks. Treat him accordingly.

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Trump says he is opposed to White House aides testifying to Congress, deepening power struggle with Hill [Washington Post]


Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.