Tick Tock Motherf*ckers!

Strap in, kids, we're headed for some turbulence. After only 15 months of breathless predictions that Mueller might be wrapping his investigation any second now, it looks like shit may actually, for real, hit the fan in the next two months. Rod Rosenstein is inching toward the exit and is likely to nope right out once Mueller submits his homework. Rudy Giuliani has definitively announced that Trump is making BYE BYE to any cooperation he might have given to the NO COLLUSION inquiry. And last night the Washington Post reported that Trump's real lawyers are staffing up.

White House Counsel Pat Cipollone recently hired 17 lawyers to prepare for the twin impacts of the Russia probe and a wave of inquiries by the newly empowered Democratic House. No word on whether the president's lawyers are getting paid during the shutdown.

Time for a lawsplainer!

Cast your mind back nine months to a warm spring day when we all shared a good laugh at Steve Bannon's insane rantings on "How To Dissolve Russia Investigation In An Acid-Filled Bathtub." Bannon was breaking out in hives because Trump's then-lawyers John Dowd and Ty Cobb had allowed quit-fired White House Counsel Don McGahn and the rest of the goon squad to run their mouths to Robert Mueller. So Ol' Gin Farts hatched A PLAN to claw back the eleventy million hours of testimony by retroactively invoking executive privilege, telling The Post:

"The president wasn't fully briefed by his lawyers on the implications" of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. "It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively."

Yeah, it's a real dumb plan. But it's actually not far off what Trump's real lawyers wound up with. The new and improved version goes something like this:

  1. Robert Mueller works for the Justice Department, which is part of the executive branch;
  2. So whatever shit Priebus, McGahn, or Kush told Mueller was inside the executive bubble;
  3. Ipso facto res ipsa loquitur Trump can now assert executive privilege to prevent that info being shared with Congress, which is outside the executive branch.


So, let's play this one out, shall we? We know that in May of 2017, Trump huddled up with Javanka and rancid weenus Stephen Miller at his garbage palace in New Jersey (yeah, the one with the undocumented staff). They returned to the White House with a crazyass UR FIRED CUZ RUSSIA letter to James Comey. Don McGahn took one look at it and said Hell to the NO! Which is how Rod Rosenstein wound up drafting that BS memo saying that Comey had to go for being mean to Hillary Clinton. Mueller has the original memo, he has McGahn's testimony as to what went down, and he has Rosenstein's version of events. But in Giuliani's fevered imagination, ALL OF THAT likely falls under this retroactive executive and deliberative process privilege, so it is illegal to disclose it to Congress.

Neat trick, huh? A sitting president can't be indicted, he can only be impeached. But he also has the unilateral right to claim privilege over all the evidence against him. So too bad, so sad Congress can't find out about Trump obstructing justice as president.

YEAH, NO. Here's a handy dandy primer on executive privilege from the nerd rockstars at Lawfare. And here's an interesting Twitter thread from former Solicitor General Neal Katyal, who helped draft the special counsel statute, on Trump's plan to claw back all Mueller's obstruction evidence through the Hot Tub Time Machine Executive Privilege Defense.

TL, DR? He can try it, but it's not going to work. It didn't work for Nixon with his tapes. It didn't work when Obama tried to assert executive privilege as a shield against congressional oversight in the Fast and Furious inquiry. And try as they might, the GOP hasn't managed to turn the judiciary into a partisan arm of the Republican party yet. The Supreme Court just let stand a ruling imposing $50,000 in fines per day on the foreign company resisting subpoena in the Mueller investigation, and John Roberts is in no mood for Trump's bullshit. The world is terrifying and scary, but trust us on this one IT WON'T WORK.

So, now what? Now we sue! And by "now" we mean five minutes after Mueller drops his report and Trump tries to bury it. And by "we" we mean House Judiciary Democrats, House Intel Democrats, CREW, and every media outlet in the country. This will be messy and horrible and no decent person would put the country through it. Donald Trump is not a decent person. But seriously, IT WON'T WORK.

We'll make it through this. Promise.

[WaPo / Lawfare]

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Liz Dye

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.


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