September 7, 2020 – Recently the DC Appeals Court ruled that Don McGahn, the former White House legal counsel could continue to defy the House Subpoena issued over a year ago, to avoid testifying or producing documents as requested by the House Judiciary Committee. The documents and testimony at the heart of this legal battle, are vital to getting to the bottom of the Robert Mueller “Obstruction of Justice” investigation. Not only is this ruling alarming, it appears to be contrary to US Supreme Court precedent – much of it set during the Nixon administration.
The Recent Full Court Ruling
Just three weeks before this ruling, on August, 7, a full bench Appeals Court hearing took place. The argument before them, was whether the federal court has jurisdiction – to hear a House Judiciary Committee “subpoena” case for former White House Counsel to the President & Executive Branch Employee, Don McGahn. It was McGahn’s premier argument, that he need not appear and testify – claiming the federal court has no jurisdiction over an issue between the two branches of government – Legislative and Executive. Despite McGahn’s vigorous argument, the Full Appeals Court ruled that they “do” in fact have jurisdiction, sending the case back to the smaller, three-judge Appeals Court panel to try the remaining issues in the case.
What a Dismissal Would Mean
A dismissal would remove the need for McGahn to produce documents or testify as what he told Robert Mueller during his “Russia” investigation, and more specifically, about the issues pertaining to Obstruction of Justice that is at the center of the investigative subpoena. That is, what McGahn revealed to Mueller: Trump telling him to “fire” the Special Prosecutor – the very person investigating Trump. What is most important to understand, Obstruction of Justice is the federal crime – accomplished “corruptly or by threat, or force” trying to influence, obstruct, influence or impede the due process of justice. That is why McGahn’s testimony is so relevant to knowing whether the president did in fact intend to commit a crime.
A Question of “Intent”
Once the facts are brought out through testimony, the next question that must be answered is, What was Trump’s intent? This is why McGahn’s testimony is so critical to the investigation. Was there willful intent to interfere with a criminal investigation and disrupt it? Was it just hyperbole, his asking McGahn to fire Mueller? Such information could clearly “implicate” or “absolve” the president of any wrongdoing. But, the fact that the case is being challenged so fiercely clearly lays credence to the former, rather than the latter.
Who is Hearing the Case Makes All the Difference
After the Full Court heard the case, it found there was in fact federal jurisdiction to entertain it, sending it back to the three judge panel to hear the remaining issues. As with most Appeals court panels, there are three judges – on the DC Circuit Court of Appeals hearing McGahn: two of the Judges, Henderson and Griffith, were nominated by George W. Bush, and the remaining judge, Judge Judith Rogers was nominated by Bill Clinton. Under the United States Constitution, all federal judges are nominated by the president and confirmed by the Senate to fill vacancies on the federal bench.
Yet, even though the judges were nominated by different parties, Americans imagine that the scales of justice are even, that judges are non-partisan – yet as we see, that is more theory, than practice. On this appeal, the two Republican nominated judges found the House Committee to have “No Cause of Action” to enforce its subpoena, while also holding that Don McGahn has FULL immunity from judicial process.
What This Appeals Court Ruling Means
This ruling provides that “once again” the case gets kicked out of court. This is supposed to be the end of the road – the result of which to allow the former White House Counsel to be absolved from any responsibility from ever testifying or producing documents about “what he knew and when he knew it” – testimony that could reflect negatively on him or the president. Such testimony and documents have the potential to implicate the president in an attempt to interfere with the Mueller investigation – the alleged attempt at firing of Robert Mueller and a “cover-up” by McGahn to protect the president from interfering in a criminal investigation, and his attempt to “obstruct” justice.
Fortunately, the third Judge on the three judge panel, a Harvard trained jurist saw things a bit differently. She wrote a lengthy and vigorous dissent against the two judge majority opinion – contradicting much of what they said. Her focus was on established US Supreme Court precedent, and the Constitutional mandate of checks and balances – accountability of each of the three branches of government to the other.
History Will Always Out the Truth
In her dissent, Judge Judith Rogers outlined the law, creating a framework for the next appeal, as there is no doubt this ruling will go to the FULL Appeals Court once again. Unfortunately, not before the next presidential election. So voters are flying blind without knowing exactly the extent of wrongdoing that Trump was engaged in, and as a result, what he demanded of White House Counsel. We do know from the Mueller report that he wanted McGahn to lie about certain things, wanted to fire Mueller, even falsify records – we do not know the extent of any wrongdoing, and do not have documents to prove much of what Don McGahn related to Mueller. We don’t even have the FULL Mueller report, as that was held back from Congress by Bill Barr who doesn’t want it to see the light of day. A reasonable person hearing this, would ask, What are they hiding?
Judge Roger’s Dissent
McGahn and his lawyers are adamant that McGahn doesn’t have to show up and testify before Congress. His argument is that Congress has no power or authority to”subpoena” a member, here former member of another branch of government – the Executive Branch. But Judge Roger’s throws a few punches of her own, quoting the US Supreme Court. J. Rogers writes:
In 1927, US Supreme Court in the case of McGrain v. Daugherty ruled that the Constitution implies a right of action to enforce a subpoena. The Supreme Court stated that “the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function.”
What this means, there is long-established precedent for Congress to issue a subpoena – a right to issue and a right to enforce it. Yet, McGahn and is fighting tooth-and-nail to suppress this right of Congress – if not eviscerate it. That is not the law as expressed by the US Supreme Court.
According to the “dissent” the majority as well as McGahn’s arguments are flawed because the the McGrain, case reviewed Article I of the US Constitution. The Court found “implicit” in Article I, the right of the House of Congress to demand testimony and information – and the “process to enforce” a make demand, such as a subpoena enforcement lawsuit as we have here.
In addition, in 1955, the US Supreme Court ruled in Quinn v. United States, that:
Congress has”the authority to compel testimony, either through its own processes or through judicial trial.”
Therefore, the powers of Congress enumerated in Article I of the Constitution imply not only a right to information but also a right to seek judicial enforcement of its subpoena.
Besides having the US Supreme court decisions on the side of the House Judiciary Committee, allowing them to demand McGahn comply with the subpoena to provide testimony and supply documents, Judge Rogers also found a statute – a federal law such as the Declaratory Judgment Act that backs up the Constitutional arguments that one branch of government comply with the requests of the other. This too is being contested by McGahn as well.
Recent Supreme Court Rulings are Bringing the Issues Home
Just this year, the US Supreme Court heard the case of Trump v. Mazars USA, LLP., the Supreme Court acknowledged it is “essential” that Congress have information to effectively function, stating: that “each House has power to secure needed information through the subpoena power.” They also stated: “That constitutional power entitles each House to the testimony of a witness and production of requested documents in response to a lawful subpoena.”
It seems straightforward, the US Supreme Court has ruled as recently as this year in another Trump case, that the Congress has a right to have information produced. So why are we even debating the right of the House to subpoena McGahn and why is he fighting the subpoena?
No doubt to delay the ultimate ruling until after the election – because there may be a whole new Congress – and if Trump is reelected and there is a House majority, the issues will never see the light of day. And even if the House doesn’t get a Republican majority, Trump could still be president, and as we have seen before, the Senate will not impeach – no matter how egregious the ethical violations. And of course Bill Barr will continue to suppress evidence and impede investigations. And most of all, if Trump is reelected the statute of limitation would pass on criminal conduct he conducted in his first term – barring the fact that he doesn’t continue any criminal conduct in what could be his second term.
This brings us to the issues of Watergate and former president Nixon.
Nixon Watergate – What if Anything Did We Learn
For those who were alive in 1974, that was the height of the now infamous Nixon Watergate scandal – where members of the Republican National Committee to reelect Richard Nixon, burglarized the Watergate Hotel in Washington, DC., which housed the Democratic National Committee Headquarters, to steal information from the committee that would be helpful to Nixon’s re-election campaign, while illegally wiretapping their office. The burglars were caught, and the case went to the US Supreme Court, and then sitting president, Richard Nixon claimed to have “executive privilege” and “Absolute Immunity” from testifying and producing documents. That did not work out so well for Nixon, as he not only had to turn over all the documents and his infamous tape-recordings that implicated him – as well as all his staff – which was made into a movie “All the Presidents Men.”
Notably, ALL of Nixon’s “people” had to testify or “Take the Fifth.” That included Nixon’s Chief of Staff, H.R. Haldeman, Attorney General, John Mitchell, and attorneys John Ehrlichman, and John Dean. They all went to prison – except Nixon resigned before he could be made to testify, and was “pardoned” by then Vice President, Gerald Ford. Many may have seen the same John Dean on TV today as an analyst discussing similar matters as relating to the Trump administration.
What is “important” to remember, is Nixon tried to invoke the whole Absolute Immunity defense, but the US Supreme Court would not have it. They ruled that the even a sitting president did not have “Absolute Immunity” – he only had “Qualified Immunity” meaning the information could be obtained as long as the requisite need could be shown.
In the Nixon case, the high-court set the standard on the “Immunity” ruling:
President possesses a qualified executive privilege whereby Presidential communications are presumptively privileged but whose disclosure may be compelled in the case of demonstrated specific need in a criminal proceeding.
Yet, some might argue Nixon was about a criminal case and, so far, Congress is looking at what may be a Civil case – at least initially until all the facts come out – even though Mueller stated in his report that all the elements of the crime of “Obstruction of Justice” appear to be met.
But if holding Congress to a civil standard is the issue at hand, that is covered as well by another US Supreme Court ruling in yet “another” Nixon case, Nixon v. Administrator of General Services. In that 1977 Nixon case, ALL his presidential papers had to be turned over – as do all presidents for the presidential archives.
The Take Away
Quoting Judge Roger’s Dissent on the Claims of Immunity in McGahn:
“[T]his precedent demonstrates that although the President’s [Trumps] communications with close advisors, including the White House Counsel, are presumptively privileged, the President does not have absolute, unreviewable discretion to determine what information will be disclosed in response to a subpoena — whether a judicial subpoena in a criminal proceeding or a valid congressional subpoena. Yet that is exactly the nature of McGahn’s absolute immunity claim. By asserting that he need not even appear in response to the Committee’s duly issued subpoena, he in essence contends that the President may unilaterally determine that no information will be disclosed in response to the subpoena. He thereby seeks to revive a view of Presidential power expressly rejected by the Supreme Court.”
What this all means, is that Judge Rogers dissent will likely pave the way for this appeal to reach the Full Court of Appeals and perhaps the US Supreme Court. But what has been done by Trump, McGahn and members of the Court, is to kick the can down the road after the election, which in turn prevent disclosure of what Don McGahn told Mueller in his Obstruction of Justice investigation. It also may find that there is a new Judiciary Committee in the new Congress of 2021 – that may or may not take up the issues of this Committee.
By Delaying Justice – it is Justice Denied for this Democracy and the American People
The three branches of government were created so no one branch could usurp the power of the other – so there would be “checks and balances” – and accountability to the people. But this administration is usurping fundamental principles of Separation of Powers – for one branch to check the other. And it is doing along with its progenitor in chief, AG Bill Barr. But if the facts of Nixon hold true – they all must be held accountable and many may go to jail – that is if Nixon holds true and justice does prevail. For now, Congress is fighting several battles, the one getting AG Barr to turn over the “unredacted” Mueller report hidden away from them – and getting former White House Counsel, Don McGahn to testify about events leading Robert Mueller to believe that crimes may have been committed. And last but not least, getting the Postmaster General to deliver the mail on time – so ALL the mail-in ballots will be counted in the upcoming election.
For more on the Trump Administration – subversion of justice, and possible acts of criminal homicide as it relates to COVID deaths in America; full analysis of the Mueller Report “Uncensored” – & Findings by Special Counsel, Robert Mueller on “Obstruction of Justice” – read it here at The Legal Edition!
Mary Kay Elloian, MBA, JD, Esq.
The Legal Edition-Legal, Business & Policy News
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