And In This Corner, The Attorney General Spouting Some Facially Illegal Hilarious Sh*t!
Good Morning! Welcome to another day in Trump's America, where NONE OF THIS MAKES ANY SENSE! The White House and Congress are entering a period of trench warfare, which should last to ... let's say January 20, 2021, conservatively speaking. Attorney General Bill Barr is reporting for duty, Sir, and he's ready to fuck shit up!
Yesterday, former White House counsel Don McGahn's lawyer Bill Burck told the House Judiciary Committee that his client is ever so sorry, but he's going to have to bail on that document subpoena after current White House Counsel Pat Cipollone ordered him to zip it:
As you will appreciate, Mr. McGahn, as a former Assistant to the President and the most senior attorney for the President in his official capacity, continues to owe certain duties and obligations to the President which he is not free to disregard. Here, the Committee seeks to compel Mr. McGahn to produce White House documents the Executive Branch has directed that he not produce. Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the Committee and the Executive Branch can reach an accommodation.
In fact, committee chairman Jerry Nadler did not appreciate being told that McGahn was going to ignore his subpoena just because the White House mumbled some shit about presidential privacy. Then Pat Cipollone sent a snitty letter to Nadler instructing him to address any future document requests to the White House, since "The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege."
How did that one go over? Not well.
The White House spent two years refusing to answer questions by airily alluding to executive privilege, safe in the knowledge that the GOP would never call their bluff. Because executive privilege is a narrow exception to disclosure requirements which has to be affirmatively invoked, and there is a legal standard by which to challenge it. Which is exactly why the White House was desperate to avoid a formal invocation of the privilege they'd have to actually defend, rather than spreading it like a fluffy, amorphous blanket over all their sins.
But that shit won't fly with a Democratic House, as Nadler made clear to McGahn's lawyer last night:
As an initial matter, regarding the subpoenaed documents, the White House Counsel's letter did not actually invoke executive privilege, but rather merely suggested at the 11th hour -- without providing any supporting authority -- that all requested documents "implicate significant Executive Branch confidential interests and executive privilege." This blanket suggestion of potential privilege is entirely insufficient. As the district court for the District of Columbia held in Committee on the Judiciary v. Miers, a subpoena recipient is "not excused from compliance with [a] Committee's subpoena by virtue of a claim of executive privilege that may ultimately be made."
McGahn can't just wander around chanting Hocus Pocus, Executive Privilege and waving incense to ward off all questions, because that is not how shit works. Not any more, anyway. He has to submit a privilege log specifically laying out the grounds for withholding requested documents. And, oh, by the way, McGahn better not even think about trying it for his scheduled testimony in two weeks:
I fully expect that the Committee will hold Mr. McGahn in contempt if he fails to appear before the Committee, unless the White House secures a court order directing otherwise. Further, even if Mr. McGahn is authorized by court order to invoke executive privilege as to certain testimony, he still is required by law to "appear before the Committee to provide testimony, and invoke executive privilege where appropriate."
The days of MAGIC WORDS are over, asshole. Welcome to 2019!
But wait, there's more! Yesterday lawyers for the Judiciary Committee met with the Justice Department to negotiate for members to see the unredacted Mueller Report. So, did Mr. Nadler accept Bill Barr's "extremely generous" offer to allow a handful of members to see a slightly less redacted version of the report and even let them take notes? Will Nadler cancel the markup for a contempt citation for the attorney general scheduled for this morning?
LOL, not on your life, boychik! Nadler told Barr to get bent, and then Barr LOST. HIS. SHIT. The Attorney General threatened to invoke executive privilege for the entire Mueller Report and all supporting documents if Nadler doesn't cancel the contempt vote immediately:
In the face of the Committee's threatened contempt vote, the Attorney General will be compelled to request that the President invoke executive privilege with respect to the materials subject to the subpoena. I hereby request that the Committee hold the subpoena in abeyance and delay any vote on whether to recommend a citation of contempt for noncompliance with the subpoena, pending the President's determination of this question.
UH HUH. Congress has to cancel its subpoena because Bill Barr is going to ask Donald Trump to invoke executive privilege over a document which already exists in the public domain, and then Donald Trump is going to have to think real hard about it. So now a contempt vote is ILLEGAL.
Yeah, we bet Jerry Nadler's going to get right on that one! But, just in case the chairman was thinking of challenging this BS assertion of privilege in court, he can't because PSYCH! Barr is still not invoking executive privilege.
This request is not itself an assertion of executive privilege. If the Committee decides to proceed in spite of this request, however, the Attorney General will advise the President to make a protective assertion of executive privilege over the subpoenaed material, which undoubtedly includes material covered by executive privilege.
What the fuck is even happening right now? The highest law enforcement officer in the land is threatening to invoke executive privilege over material which he freely admits is not privileged and which has already been released to the public in order to stop the legislative branch from voting to hold him personally in contempt of Congress? We are way, way past Watergate territory here!
To which Jerry Nadler said, "HAHAHA FUCK YOU, and also, here is the contempt citation we will be debating in the morning. There's more where that came from if the rest of you assholes want to keep obstructing justice." Well, more or less:
Tonight, in the middle of good faith negotiations with the Attorney General, the Department abruptly announced that it would instead ask President Trump to invoke executive privilege on all of the materials subject to our subpoena. This is, of course, not how executive privilege works. The White House waived these privileges long ago, and the Department seemed open to sharing these materials with us earlier today. The Department's legal arguments are without credibility, merit, or legal or factual basis.
Worse, this kind of obstruction is dangerous. The Department's decision reflects President Trump's blanket defiance of Congress's constitutionally mandated duties. In the coming days, I expect that Congress will have no choice but to confront the behavior of this lawless Administration. The Committee will also take a hard look at the officials who are enabling this cover up. In the meantime, the Committee will proceed with consideration of the contempt citation as planned. I hope that the Department will think better of this last minute outburst and return to negotiations.
So, this morning should be JUST DELIGHTFUL.
Also, too House Ways and Means Chair Richard Neal has had enough of Steven Mnuchin's shit, thankyouverymuch. Munch can hand over Trump's returns, or he can 'splain to a judge how there's a secret provision in that non-discretionary statute which empowers the Treasury Secretary to look into Richard Neal's soul to judge the purity of his motivations and then tell him to get lost because of very serious legal reasons TBD. Politico reports that Richard Neal is in no mood to screw around with a subpoena or contempt vote, since the White House has already announced it intends to stonewall indefinitely. He's ready to let a federal judge sort it out: "There doesn't have to be any intermediary step. They seem not to be paying a lot of attention to the subpoenas, so take it from there."
OOOOOOH, GURL! We are here for it!
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.