“President” Trump does not seem to understand the limits of executive privilege.  He also does not seem to understand that the White House Counsel — in this case Don McGahn– is not his personal lawyer.  “The Office of White House Counsel advises the President, the Executive Office of the President, and the White House staff on legal issues pertaining to the President and the White House.”  https://www.whitehouse.gov/get-involved/internships/presidential-departments/   Despite Trump’s passion for oaths of loyalty to him, personally, the loyalty should run to the office of the presidency, and through that to the American people.  Thus, Mr. McGahn should be responsive to the House of Representatives, the people’s representatives.

Even if that were not true, well settled law establishes that Trump cannot dictate whether Mr. McGahn appear to testify before the House of Representatives.  The case of Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (DC Dist. Ct. 2008) makes it very clear that a former White House counsel must comply with a subpoena by the Judiciary Committee acting for the House of Representatives.  In that case, the Judiciary Committee was investigating an inexplicable and sudden firing of nine Attorneys General.  “Additional revelations further fueled speculation that improper criteria had motivated the dismissals.”  Id. at *57. 

“Citing its authority under House Rule X, which provides that the Judiciary Committee’s oversight responsibilities extend to issues relating to judicial proceedings and criminal law enforcement, the Committee declared that it aimed to:

(1) investigat[e] and expos[e] any possible malfeasance, abuse of authority, or violation of existing laws on the part of the Executive Branch related to these [**11] concerns, and (2) consider[] whether the conduct uncovered may warrant additions or modifications to existing Federal Law, such as more clearly prohibiting the kinds of improper political interference with prosecutorial decisions as have been alleged here.”

Although several witnesses had been made available, which raised additional questions, the Judiciary requested a voluntary interview with Harriet Miers, former White House Counsel.  The White House offered some limited testimony, but the Judiciary felt it was overly restrictive. Id. at *60.  The Judiciary Committee then issued a subpoena for Ms. Miers, including a subpoena duces tecum seeking production of documents.  Then attorney general, Paul Clement, opined that the White House could exert executive privilege to forestall the production of documents and prohibit testimony.  Id. at 61.  Among others, Ms. Miers failed to appear in response to the subpoena, and no documents were produced. Id. at *63.  The Judiciary held the witness in contempt.  Id. 

Further complicating the matter, the Attorney General responded that “because Ms. Miers and Mr. Bolten were acting pursuant to the direct orders of the President, “the Department has determined that non-compliance . . . with the Judiciary Committee  [*64]  subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations  [**28] before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.”  Id. at *63-64.  Speaker Pelosi urged the White House to reconsider its refusal to bring the contempt charges before a grand jury, but her request was unavailing.  Suit was filed, and the White House launched various arguments in a motion to dismiss the action.  Among the arguments posited by the Executive was that the suit was “governmental” rather than a personal injury, and therefore the Judiciary Committee had no standing to bring suit.

As familiar as all this sounds, in the end, the federal court opined contrary to the position that this current administration is taking.   First, the Court found the Committee had standing.  Id. at *68.  Moreover, the Court found that “[i]t is readily apparent, then, that the justiciability principles underlying the Supreme Court’s decision in United States v. Nixon have been extended beyond the limited realm of grand jury subpoenas.”  Id. at *73.    The federal court went on to hold that while “Congress does not have the authority to enforce the laws of the nation, it does have the “power of inquiry.”  Id. at *75.  the Executive branch may have the power to issue subpoenas, but “so too is Congress’s need to enforce its subpoenas a necessary part of its power of inquiry.”  Id. 

Citing Office of Legal Counsel memorandum — the same authority cited by the current White House Counsel, the federal court quoted an OLC conclusion that “although the civil enforcement route has not been tried by the House, it would appear to be a viable option.”

In the end, the Supreme Court denied the Executive’s motion to dismiss Congress’s court action, instead granting Congress partial summary judgment on the issue.  In other words, the court recognized Congress’s right to enforce it’s subpoena in the courts.

Assistant White House Counsel Steven A. Engel cites few cases in his extensive letter attempting to support the Executive’s right to prevent Mr. McGahn from testifying.  But the case he makes is not compelling.  For example, Engel cites to U.S. v. AT&T, 567 F. 121 (D.C. Cir. 1977) for the proposition that a president does not waive privilege by partial release of material claimed to be privileged.  While this argument may cover McGahn’s testimony to the Special Counsel Mueller, it is insufficient to overcome the subpoena power by Congress.  In fact, Engel concludes that “compromises between political branches do not compromise the underlying immunity of the President or his senior advisers from compelled congressional testimony.”  He tenders this conclusion without any citation to law, or even to any prior OLC memo.

Engel then unsuccessfully attempts to equate the extension of Presidential immunity from civil suits for actions taken in his role as president qua president with those of compelled Congressional testimony.  The gist of it appears to be that either testimony or civil suit will “threaten to subject presidential advisers to “coercion and harassment” and create the impression that the president is subordinate to Congress.  Apparently, Engel prefers that Congress be subordinate to the Executive.

Interestingly, Engel notes that Miers case, supra, was dismissed following settlement by the parties, but he then takes another irrational leap.  Because the Miers case was not appealed, therefore – according to Engel – the OLC opinion that “the President’s immediate advisors are absolutely immune from compelled congressional testimony.” OLC McGahn Opinion, § I, pg. 10 (emphasis added).

That, of course, is unsupported and would eliminate the very investigative authority recognized by the D.C. Circuit court in a well-reasoned opinion.   It would be unlikely given the similarities of the two cases that the Supreme Court would reject that reasoning, even on party lines.  In the end, the words of Mr. Engel asserting that advisors to the president are absolutely immune from compelled Congressional testimony are likely to be a bridge too far.  This would set the Executive Branch over Congress, a position not envisioned by our founding fathers. Further, such a position would castrate congress, and that is likely too much like tyranny to be ignored.  ###