Don McGahn & Congressional Guardians of the Reign of Process

Don McGahn is a star. If you’re a Democrat Member of Congress looking to drag out the post-Mueller hearings and try to take up the dubious baton that Robert Mueller left at a dead drop in a parking lot somewhere in Fairfax or Quantico. And the White House is having none of it, demanding that McGahn not respond to House Judiciary Committee subpoenas that he testify.

This is about competing narratives, but it’s also about far more than that.

Democrats see McGahn as the most likely witness to aid their obstruction narrative. One which they hope will provide enough opposition research, if you will, to damage Trump sufficiently that he loses his re-election next year. Or to outright launch impeachment hearings. With a view to keep him from winning in 2020, seeing any impeachment articles will surely die in the Senate. The Daily Beast's Betsy Woodruff at least gets it right that this is a fight over the balance of power between the Executive and the Legislative branches of government:


But his formal refusal to testify adds even more fuel to an already bitter political and legal fight between the parties over the boundaries of executive privilege and presidential power.

Those battles took shape in various legal memorandum on Monday--memorandum that could functionally reshape the relationship between two branches of government and will undoubtedly be tested in the courts.

The Justice Department memo, released by the department's Office of Legal Counsel and addressed to White House Counsel Pat Cipollone, argued that Congress inherently does not have the power to make the former White House Counsel talk to them about his work for President Donald Trump. The memo also said the president had the power to order McGahn not to testify and that Congress did not have the power to punish him--criminally or civilly--for following such an order.

As expected, Congress is following Mueller's suggestion written right into his report that they further investigate any possible actions by President Trump and his White House that might involve obstruction of justice. AG Barr has concluded that the examples (10 of them by most counts) do not rise to the level of obstruction of justice because they essentially fall under the purview of executive privilege.

Democrats differ, and whether it's for nakedly partisan reasons or because of high-minded love of America's Constitution, they claim that Congressional oversight is a sacred duty they must not shirk out of respect for posterity. Rhode Island's Dave Cicilline, a Russia-obsessed Representative if there ever was one, unloads the burden of his love of country with a sympathetic Lindsey McPherson of Roll Call:

It is not just about this president. It is about future presidents. It's about the message it sends about our respect for the Constitution and for the rule of law. And if this pattern by the president continues, where he's going to impede and prevent and undermine our ability to gather evidence to do our job, we're going to be left with no choice.

You may be right Representative Cicilline. McGahn may very well be your last chance, after which you would be left with no choice. At all. And McGahn was reportedly witness to some of President Trump's most aggressive musings on the probe and on how to deal with it; including asking then-Ag Sessions to un-recuse himself, as well as perhaps firing Mueller, or perhaps then-Deputy AG Rosenstein.

But the problem with focusing on process - and these are supposed process crimes - is that you have to keep in mind how the investigation may have originated and how it strangely straddled both the fields of counterintelligence as well as that of criminal proceedings. And every charge laid against at least the American citizens caught up in Mueller's probe (Manafort, Flynn, and Papadopoulos as well as others) were process crimes that had nothing to do with collusion.

Byron York has a rather interesting story on how Trey Gowdy revealed this week that there are surveillance records of the FBI's interactions with George Papadopoulos. Papadopoulos is the figure whose supposed musings to Australian Ambassador Downer in a London bar about Russians having hacked Hillary's emails launched the FBI's Crossfire Hurricane investigation which later morphed into the Mueller probe after Comey was fired in May of 2017. Here's York writing in The Washington Examiner:

Gowdy did not say so directly, but he clearly suggested the transcripts could change some views of the origins and legitimacy of the Trump-Russia investigation. In this way: The FBI received the Australian information. It dispatched investigators to London to learn what was going on with Papadopoulos. If the investigators confirmed the Australians' tip, then the investigation would surely continue and intensify. But what if the FBI did not confirm the Australians' information? And what if, after failing to confirm that information, the bureau pressed on with the investigation anyway?

Finally, what if the FBI, which mentioned Papadopoulos in the application submitted to the secret FISA court for a warrant to wiretap Carter Page, did not tell the court that its own informants and agents had gathered information relevant to the case?

If those transcripts, which the FBI is refusing to hand over, do indeed prove what York is suggesting and what Gowdy - who has seen them - is strongly suggesting, then the FBI investigation and the Mueller probe were deliberately launched based on a false predicate with Papadopoulos as a minor player who provided the excuse.

Jerry Nadler whose committee is demanding McGahn testify has also certainly read those transcripts or knows in detail what they contain. He knows that the FBI launched an investigation they never should have launched and almost certainly did so willingly and likely maliciously as well. For partisan reasons that were clearly revealed by Agent Stzrok and Lisa Page's text messages.

As Rich Lowry writes in National Review:

It's too painful to admit that the Mueller report was a bust on Russia and that the obstruction material, while damaging to Trump, is hardly a slam dunk; that the public doesn't support impeachment; that if the House goes through with it anyway, it will end with a whimper in the Senate; and that it's better for Democrats to focus on beating Trump in 2020 than a forlorn impeachment.

So instead, Democrats make a show of getting to the bottom of matters that have been as thoroughly investigated as anything in our recent politics.

Perhaps Democrats will get so frustrated by Trump's non-cooperation that they will end up impeaching him over that -- which will surely make it the first time a House majority has impeached someone over its playacting to avoid impeachment.


If that is the case, then how a legal case is predicated will no longer matter. We will enter the Reign of Process. Which is governed by the Administrative State. With Congress as its Watchdog. So yes, Betsy Woodruff is right. This is a major legal battle over the separation of powers. And this really does matter.

Posted by Keeley at May 23, 2019 10:21 PM
Comments
Comment #443935

Democrats are laughably out-of-control !

Posted by: d.a.n at May 25, 2019 4:35 PM
Comment #444075

CORRECTION: Democrats are frighteningly out-of-control !

Posted by: d.a.n at May 28, 2019 9:50 PM
Comment #444112

Robert Mueller gave a statement, but it offered nothing new that we didn’t already know (except that he is retiring to private life).
Let’s see how Democrats try to spin it into grounds for impeachment.
Hopefully, Democrats will go for impeachment, because it will do wonders for winning over voters, like the plummeting ratings of CNN, MSNBC, and similar FAKE NEWS sources.

Posted by: d.a.n at May 29, 2019 11:45 AM
Comment #444117

d.a.n., impeachment by the House Democrats represents the swan song of a political party that will soon vanish into the dustbin of history.

Posted by: Royal Flush at May 29, 2019 2:20 PM
Comment #444124

Nancy Pelosi doesn’t seem genuinely motivated to pursue impeachment (source: www.realclearpolitics.com/video/2019/05/29/pelosi_media_makes_more_of_a_fuss_about_democrats_who_are_pro-impeachment.html) ?

Haven’t heard much from Maxine Waters lately about impeachment?

Is Jerry Nadler, Eric Swalwell, “Valor Stealing” Dick Blumenthal, Ms. “shut up” Mazie Hirono, “lying and leaking” Adam Schiff, Kamal Harris, “Pocahontas” Elizabeth Warren, Corey Booker, Kamal Harris, Bernie Sanders, “Cryin’” Chuck Schumer, “Impeach this M****r*****r” Rashida Tlaib, Jim Clyburn, “Crooked” Hillary Clinton, Pete Buttigieg, and Seth Moulton the only nutcases left in Congress who are calling for impeachment ?

A Harvard-Harris poll finds that 65% of Americans polled are not for impeachment, 60% agree with A.G. William P. Barr that “the facts and public actions of President Trump did not amount to obstruction of justice, especially since there was no underlying collusion.”
And 58% believe that we should turn the page on investigations of President Trump.

Posted by: d.a.n at May 29, 2019 5:23 PM
Comment #444130

What Mueller said today is the same as what is in the report. IMO he kicked the can down the road on obstruction knowing that the dumbA$$ Democrat6s would pick it up and make fools out of themselves with impeachment. He said in the report he couldn’t find evidence to charge obstruction which means INNOCENT.

Posted by: Rich KAPitan at May 29, 2019 9:30 PM
Comment #444169

Mueller said he can not lawfully indict a sitting President, but there is nothing preventing Mueller from reporting any crimes by a sitting President.
However, Mueller also said there was “insufficient evidence” of any crimes.
Mueller is trying to stir up $#!+ and make trouble, not to mention that everyone on Mueller’s team were anti-Trump Democrats.
Mueller probably would have loved to get some dirt on Trump, but 2+ years of investigations (19 lawyers, 40 FBI agents, analysts, accountants, & other staff, 2800 subpoenas, 500 search warrants, 230 communication records, 13 requests to foreign governments, 500 witnesses, and testimony by A.G. William Barr) turned up no grounds for impeachment.
Many Democrats can’t accept that, and now believe that they were betrayed by Robert Mueller and William Barr (despite supporting Mueller and Barr before the Mueller report was released).

Posted by: d.a.n at May 30, 2019 12:59 PM
Comment #444244

bots sent numerous “Stop web spamming Watchblog.com” messages repeat-offender online-digitalseo.com (contact forms, blogs, twitter, facebook, chat, and email accounts), and was also reported to Google Webspam Report site.

Posted by: d.a.n at June 1, 2019 5:29 PM
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