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A Few Caveats on the White House’s Latest Riposte

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May 7, 2019 11:57 a.m.

Brief point on this latest stand by the White House telling Don McGahn not to comply with a congressional subpoena for documents. I think it is important to say that normally a congressional subpoena of documents related to the White House Counsel’s dealings with, advice to the President, communications with the President, etc. would be a very, very uphill climb. It’s prime executive privilege territory. In this case, if I’m understanding this, the argument is that these documents are tied to issues, communications, advice on which McGahn and the White House already waived privilege to talk with the Mueller probe.

I only raise this point because there are so many different things happening right now. It’s important to keep track of them, how they differ, a mental map of all the different points of resistance. Many of them are really open and shut lawless. These flat refusals to appear before Congress in many cases qualify. Secretary Mnuchin’s refusal to turn over the President’s taxes definitely qualifies. The law is crystal clear there and he’s simply deciding to break it.

This issue with these documents is much fuzzier. I’m not saying the White House is in the right. But on its face it’s not a crazy argument or point of resistance. One key is, are these documents really about the things (advice, conversations, communications, etc.) about which they waived privilege to talk to the Mueller investigators? Given the House’s focus, I’d say pretty likely yes. But from the White House perspective, that factual point would be a rich vein to litigate and I suspect they could litigate a lot of the documents individually – thus allowing tons of time to run out the clock.

This article from the Post explains the factual argument (which is frankly pretty strong) why these documents are about things the White House already waived privilege on.

Current White House Counsel Cipollone makes this claim: “The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with the clear understanding that the records remain subject to the control of the White House for all purposes. he White House records remain legally protected from disclosure under long-standing constitutional principles, because they implicate significant executive branch confidentiality interests and executive privilege.”

The latter part, as I’ve argued is generally accurate. But the first part cuts hard against his own argument. Since these are records the White House provided to McGahn for the purposes of cooperating with Mueller, that is a pretty strong argument that they are about things the White House already waived privilege on.

There are lots of different facts here. Please see all of the above as tentative, subject to my learning more about the particulars. My point here is just to note that this point of resistance, at least on its face, looks more plausible and less demonstrably lawless than other things the White House is currently doing.

Masthead Masthead
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