1/ What to make of yesterday's McGahn and Kupperman hearings, and the remarkable, ongoing testimony of many executive officials:
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2/ i. Even if Judge Jackson rules that McGahn must appear before the House, she probably won't do so for several weeks, and the subsequent appeals likely won't be resolved for months, if not longer. IMHO that's not such a big deal, as a practical matter, ...
3/ ... b/c McGahn would likely refuse to answer much, if anything, beyond what he told Mueller in light of executive privilege assertions.
ii. Because of similar delay+privilege-assertion issues, I doubt Congress will hear from any other *unwilling* witnesses, either ...
ii. Because of similar delay+privilege-assertion issues, I doubt Congress will hear from any other *unwilling* witnesses, either ...
4/ ... before it approves one or more articles of impeachment.
iii. Both DOJ and the House will move to dismiss Kupperman's case on one or more non-merits grounds. Judge Leon will not rule on those motions until mid-December at the earliest, and I think it's very likely ...
iii. Both DOJ and the House will move to dismiss Kupperman's case on one or more non-merits grounds. Judge Leon will not rule on those motions until mid-December at the earliest, and I think it's very likely ...
5/ ... he'll then dismiss the case--probably on the ground that there's no cause of action--w/o reaching the merits. Which means that Kupperman, and probably Bolton, too, will then have a choice to make--and either option they choose might trigger follow-on litigation.
6/ On the one hand, Kupperman/Bolton might decide to comply with House subpoenas--in which case Trump/DOJ *might* ask courts to block their testimony altogether, or at least preclude certain testimony about presidential communications based on assertions of executive privilege.
7/ (I emphasize "might" for two reasons. First, the Executive branch so far has *not* asked courts to enjoin former and current officials from testifying. Second, DOJ's current arguments about the alleged lack of a cause of action in the McGahn & Kupperman suits ...
8/ ... might preclude DOJ from arguing that Congress has provided *the President* w/a cause of action when the shoe's on the other foot.)
The House *should* prevail in such suits, but the outcomes aren't certain. Nor are the timelines: The courts ...
The House *should* prevail in such suits, but the outcomes aren't certain. Nor are the timelines: The courts ...
9/ ... might require Kupperman/Bolton to testify before the year is out--but perhaps not.
Alternatively, Kupperman/Bolton might conclude that Trump is right about his (implausible) "immunity" argument and therefore refuse to testify, in which case ...
Alternatively, Kupperman/Bolton might conclude that Trump is right about his (implausible) "immunity" argument and therefore refuse to testify, in which case ...
10/ ... they'd likely be held in contempt, & then (or before then) the House itself might sue to compel them to testify. If that happens, I think it's unlikely that the appeals in such suits will be resolved in the short term, i.e., before the House votes on impeachment articles.
11/ iv. In the meantime, a dozen or so *current* officials from State/DoD/NSC/OMB (and also some former officials) have testified or reportedly will do so next week--all of whom are disregarding directives from their agencies that they may not do so ...
12/ ... based upon the White House Counsel's patently untenable conclusion (see the Cipollone letter) that the House inquiry is unconstitutional. See @K8brannen's running tally here:
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13/ This pattern of disobedience is stunning, perhaps unprecedented, and much more important than whatever happens w/McGahn & Kupperman.
It's also remarkable--or telling, anyway--that the President hasn't sought injunctions against such officials, ...
It's also remarkable--or telling, anyway--that the President hasn't sought injunctions against such officials, ...
14/ ... hasn't removed any of them for violating the directives, nor (as far as we know) even threatened to take disciplinary action against any of them.
In addition to the substance of the officials' testimony (obviously of great importance to the impeachment proceedings), ...
In addition to the substance of the officials' testimony (obviously of great importance to the impeachment proceedings), ...
15/ ... this important question is something to keep an eye on going forward:
How much, if at all, will this outpouring of testimony about internal Executive branch deliberations, including w/r/t the President and foreign officials-- ...
How much, if at all, will this outpouring of testimony about internal Executive branch deliberations, including w/r/t the President and foreign officials-- ...
16/ ... together w/further public statements and writings--undermine future claims of, and justifications for, executive privilege and/or testimonial immunity?
17/ One more thing: The Mazars (D.C. Cir.) and Deutsche Bank (Second Cir.) cases might be far more important than any of these--at least if the records show foreign indebtedness or the like--and the SCOTUS *might* expedite consideration of them.
