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Don McGahn *Finally* Testifies To Congress: Be The Robert Bork You Wish To See In The World!
Two years after blowing off a House subpoena, former White House Counsel Don McGahn finally testified to the Judiciary Committee last week, and the whole exercise was a vapid dick-swinging contest, with each member less impressive than the last. Just an absolute waste of time and expression of contempt for congressional oversight.
On the one side, Oversight Committee Counsel Sarah Istel gamely plowed through hours of questions about the events depicted in the Mueller Report. But she did it with her hands tied behind her back thanks to the ground rules McGahn's lawyers and the DOJ managed to foist on the Committee, which restricted her to asking solely about already available public information from the report itself. So the entirety of the hearing consisted of exchanges like this:
ISTEL: As reflected in what I just read, during that meeting, the President learned of the special counsel's appointment. Can you tell us the President's reaction to that appointment?
McGAHN: Well, I think the report goes on to describe it in some detail.
ISTEL: I'm asking for your recollection of what the President's reaction was at the time.
McGAHN: Well, again, you know, you're asking about something 4 years ago, but what you've read in the report is accurate, and the next sentence is also what happened.
In theory, House Democrats could have fought to force McGahn give a full and honest account of all the events. But with the Supreme Court packed with hacks who spent their entire adult lives flogging ridiculous ideas about an all powerful unitary executive, House Speaker Nancy Pelosi was unwilling to risk an adverse ruling that would severely circumscribe congressional oversight powers forever. Getting McGahn's testimony, even under these ridiculous conditions, was the least worst option, and so House Dems were stuck with this pointless charade.
On the other side, Republicans on the Oversight Committee were represented by Steve Castor. Remember this dork from the impeachment hearings?
As during the impeachment, Castor deployed his signature move — longwinded, leading questions, implying nefarious behavior which would justify the president's obstructive conduct, and inviting the witness to endorse his theory.
CASTOR: So, if the FBI is coming in to interview Flynn based on the Logan Act, on one hand, or they're coming in to interview Flynn because they want to get him to lie, either one of those — and those seem like the two options here — either one of those is not an honorable way to conduct oneself, you know, in terms of being a Federal agent conducting a Federal investigation of the President's National Security Advisor. Is that fair?
Yes, why ever would the FBI care if the National Security Advisor had lied about his contacts with the Russian government? It's not like that guy turned out to be a crazed lunatic, right?
And in the middle was McGahn himself, bobbing and weaving and showing utter contempt for the proceedings while flanked by a lawyer for the Justice Department, dispatched to ensure that every single executive branch communication was characterized as privileged — a totally ahistorical interpretation of precedent. And if that wasn't protection enough, McGahn's personal lawyer Bill Burck was there to harrumph that all of McGahn's subjective opinions on the legality of Trump's conduct were informed by conversations with private counsel and thus covered by attorney client privilege.
Which left McGahn free to deflect most of Istel's queries while generally affirming Castor's insinuations that it's totally fine to attempt to obstruct justice if you are really mad about something, especially if you're too incompetent to actually succeed in your effort.
"And so, going back to the President's concerns about the witch hunts, you know, his concerns that Crossfire Hurricane was unfair, the Mueller Report was unfair, and now there's another data point where, you know, the rungs of government are coming after one of his top advisors — you know, he's not the chief of staff, he's not the White House counsel, but National Security Advisor is certainly in that upper echelon of most critical advisors to the President," Castor pressed. "Isn't it fair to say that, everything we now know about the Flynn matter, the President was right to be frustrated about what was going on?"
And with very little prodding, McGahn endorsed it: "Like I said, I don't disagree with it. I don't know."
Almost nothing of note happened in the hearing, which was conducted last Friday and published yesterday. There was a minor revelation that McGahn was actually a source for a January 26, 2018, Washington Post story about Trump's repeated demands that McGahn order Deputy Attorney General Rod Rosenstein to fire Special Counsel Robert Mueller. The story contains the line, "McGahn did not respond to requests for comment." Which is not a great look for the Post .
In describing the episode, McGahn likened himself to his hero Robert Bork, whom he described as a "role model." Here's McGahn explaining that his main goal was to protect Trump better than Bork protected Nixon — not because firing Robert Mueller was objectively inappropriate and quite possibly obstructive, but because they might be able to keep all Trump's dirty secrets under wraps if they just held still and didn't make any reckless moves to provoke a public outcry.
We are still talking about the "Saturday Night Massacre" decades and decades later. And, looking back, you always, as a student of history, wonder, could things have gone differently if different people made different decisions? And here my thought was, fast-forwarding, you know, what this is going to look like down the road. This seemed to be an inflection point. It was time to hit the brakes and not make a phone call to Rod to raise this issue that the President had continued to raise with me.
And clearly, by his own metric, he succeeded. So slow fuckin' clap for Don McGahn, a modern day Robert Bork. You succeeded in burning down American democracy for a guy who asked you to do "crazy shit," but you protected your Nixon to the bitter end.
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