Opening Statement
All of you are no doubt aware that the Trump administration has used Executive Privilege the way that ABC used a laugh track on The Love Boat. “With annoying frequency” is the image that I was hoping you’d latch onto. Their use of Executive Privilege has also been stretched well beyond any courtroom precedent, much like the Speedo worn by a hairy German man on the beach at Barcelona. The image I am provoking with that analogy is “Gross.”
It should come as no surprise that the Trump administration has used a solemn legal procedure with annoying frequency in a gross fashion.
I believe that the testimony of Dr. Fiona Hill and Ambassador Gordon Sondland has made it obvious that it is necessary to adduce the full and complete testimony of Giuliani, Pompeo, Mulvaney and Bolton. Here’s how they get that testimony.
Don McGahn
Don McGahn is the former White House Counsel for Trump who has refused to testify before the House of Representatives. This Monday, Federal Judge Ketanji Brown Jackson in Washington will rule whether McGahn can be forced to testify before the House Committee during Impeachment hearings.
I believe that Judge Jackson will follow precedent and order McGahn to testify.
There likely will be caveats ordered by the Judge that deal with some areas in which Executive Privilege has been used—and correctly used—in the past. The Privilege does allow the Executive to not testify about “matters of national security or foreign affairs.” McGahn, however, will only be asked about issues involving domestic obstruction of justice.
“Matters of National Security or Foreign Affairs”
One could view the issues with Ukraine as all involving matters of national security or foreign affairs. Yet, we’ve heard all of the witnesses speak almost without hesitation regarding their thoughts about, and actions dealing with, Ukraine, as well as the thoughts and actions of Ukrainians.
One could also view the issues with Ukraine as a criminal scheme. In that event, no privilege applies. You can bet that the criminal Trump administration will claim that the Ukrainian situation involves national security and foreign policy, while the House of Representatives will argue that it was a criminal scheme. That creates an impasse.
Resolution of the Impasse
I believe that Dr. Fiona Hill, in her blunt way, gave us the most likely resolution of this impasse during her testimony. She stated with regard to Ambassador Sondland:
“He was being involved in a domestic political errand. and we were being involved in national security foreign policy. And those two things had just diverged.”
Ambassador Bolton, Rudy Giuliani, Mick Mulvaney and Mike Pompeo were also either allegedly involved in this “domestic political errand” or, in the case of Bolton, knew of it. They do not have to testify about the national security and the foreign policy, but they should be forced to testify about this “domestic political errand.” Why? Because of precedent.
Executive Privilege Precedent
There is not much precedent for this kind of Separation of Powers question. You might have heard of United States v. Nixon, 418 U.S. 683, 705, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (the judiciary is the ultimate arbiter of claims of executive privilege). There is also a Federal District Court opinion that I am going to rely on here. It is United States House of Representatives v. Miers, which you can read at this link.
Basically, this case involved George W. Bush’s White House Counsel Harriet Miers refusing to testify and produce documents to the House of Representatives regarding the forced resignations of nine U.S. Attorneys in 2006. This is the relevant portion of the court’s order:
3. DECLARED that Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff; and Ms. Miers may invoke executive privilege in response to specific questions as appropriate; it is further
4. ORDERED that Joshua Bolten and Ms. Miers shall produce all non-privileged documents requested by the applicable subpoenas and shall provide to plaintiff a specific description of any documents withheld from production on the basis of executive privilege consistent with the terms of the Memorandum Opinion issued on this date;
Conclusion
I believe it is almost certain that Judge Jackson orders Don McGahn to testify. That’s because of precedent, the case quoted just above. She will order him to turn over any relevant documents in his possession. McGahn will be allowed to claim privilege regarding any particular question or document. Since his testimony about obstruction of justice only deals with domestic issues, there shouldn’t be any.
In the cases of Giuliani, Pompeo, Bolton and Mulvaney, I believe that they will also be ordered to testify. They will also be given the opportunity to raise particularized objections based on Executive Privilege, and if the Democrats and the Court are on their game, there will be a distinction between actual foreign policy / national security versus domestic political errands, and a “Special Master” might even be appointed to hear the matters as they come up during testimony. Or, the Judge could be available by telephone.