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THREAD: What should we make of Don McGahn’s refusal to produce documents in response to a subpoena from the House Judiciary Committee?
1/ Today former White House Counsel Don McGahn (through his attorney) refused to produce documents pursuant to a subpoena from the House Judiciary Committee, citing the White House’s position that McGahn should not produce the documents. washingtonpost.com/powerpost/whit…
2/ Before we get to McGahn’s decision, let me explain the White House’s position, which was explained in a letter by the current White House Counsel to the House Judiciary Committee.

In the letter, he said that the documents McGahn has belong to the White House, not McGahn.
3/ According to the White House Counsel, the documents were provided to McGahn solely so he could prepare for his testimony before Mueller and with the “clear understanding” that they remained “subject to the control of the White House for all purposes.”
4/ The White House Counsel doesn’t explain exactly why the Administration is blocking Congress from receiving these materials, stating only that they “implicate” Executive Branch “confidentiality interests and executive privilege.”
5/ This is not a statement that the documents *are* privileged. Only the president can invoke executive privilege, which exists to ensure that the president receives candid advice from aides without worrying that another branch of government will hear about it.
6/ McGahn is a private citizen, and the White House no longer has any direct control over him. He can’t be fired or disciplined. It is unlikely that he is seriously worried about being sued by the Administration over complying with a Congressional subpoena.
7/ Given that McGahn has been subpoenaed, he could have taken the position that he would produce documents unless the White House went to court and obtained an order that relieved him of his obligation to comply with the subpoena. He did not do so.
8/ Instead, his attorney said that he would maintain the “status quo” (in other words, he wouldn’t comply with the subpoena) given the dueling demands from two branches of government.

This gives the White House effective control over whether McGahn complies going forward.
9/ This position carries a small risk for McGahn, because he could still be found in contempt of Congress. But he knows that he has a good reason to avoid complying and that a court would not fault him for taking this approach, given the White House’s concerns.
10/ I’m not surprised McGahn took a position friendly to the White House, for two reasons. First, he was White House Counsel and represented the Office of the President. He arguably has a duty to that Office to respect its interests, particularly over these documents.
11/ But more realistically, McGahn is a long-time Republican operative who has praised Trump even after he left the White House. As I wrote in @POLITICOMag (below), House Democrats should not expect him to advance their agenda. politico.com/magazine/story…
12/ As I discussed in that column, it will be hard for Democrats to properly question McGahn without the underlying documents, given that he does not share their agenda.

So that brings us to a broader question—Can the White House block the document request or his testimony?
13/ The White House is facing an uphill battle in its Executive Privilege claim. First, they arguably waived privilege when they gave the documents to Mueller. The Administration will argue that this is not a waiver because Muller was part of the Executive Branch.
14/ The problem for the White House is that they then released the Mueller report to the public, which discusses relevant portions of these documents.

Even if this isn’t technically a waiver—the White House will argue it wasn’t—it destroys any confidentiality argument they have.
15/ But in any event, these documents are highly relevant to a criminal investigation of the President. I don’t believe a court would permit the White House to use Executive Privilege to deny evidence of potential criminal wrongdoing to the House, which has the power to impeach.
16/ This will all play out over the course of the upcoming weeks and months. The White House will take its time determining what documents it believes are privileged, will negotiate with Congress, and ultimately Congress will go to court. The result is delay.
17/ So what can the Democrats do? I discussed this at length with Professor @joshchafetz in the latest episode of my #OnTopic podcast.

The short answer is the best weapon Congress has is the “power of the purse.” Congress can de-fund programs or agencies in response.
18/ The problem is obvious—Congress could get blamed for a shutdown. Realistically this is an area where law and politics intersect, so I can’t predict how that would turn out.

But the alternative (a lawsuit) could take a long time unless the court greatly expedited the process.
19/ Another option Democrats have is to call witnesses without documents, at least for now. Certainly they can try to get Mueller’s testimony, and they appear to be working to do that.

It is also very hard to see how the Administration could block McGahn from testifying.
20/ Even if they claimed privilege over many potential subjects, that wouldn’t mean Congress couldn’t ask McGahn about other subjects.

The problem, as I discussed in the column I linked above, is that without the documents it will be hard for Democrats to question McGahn well.
21/ McGahn won’t contradict the documents or what he told Mueller, but he won’t do Democrats any favors, either. They don’t know everything he told Mueller and can’t ask good questions without the full interview reports and underlying documents.
22/ The White House has put the House of Representatives in a position where it can do its constitutional duty of investigating possible impeachable offenses.

The upcoming battle, both legal and political, is as high stakes as it gets. Our Constitutional order is at stake. /end
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