Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a former federal and state prosecutor and CNN legal analyst, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
On Monday, President Donald Trump launched a long-shot effort to prevent the public from hearing live testimony from former White House Counsel Don McGahn – the man who, perhaps more than any other, can bring to life Trump’s most flagrant alleged acts of obstruction of justice.
According to Special Counsel Robert Mueller’s report, in June 2017, Trump instructed McGahn to have then-Deputy Attorney General Rod Rosenstein remove Special Counsel Robert Mueller. McGahn defied this order. Then, according to the report, in early 2018, Trump told McGahn to falsely deny media reports that Trump had tried to fire Mueller. McGahn, again, refused to comply.
This is the textbook definition of obstruction of justice, and McGahn’s testimony threatens to expose this to millions of Americans across the country who haven’t read the Mueller report.
The White House previously invoked executive privilege in an effort to prevent McGahn from producing documents to Congress. Now the White House – perhaps recognizing that its executive privilege invocation would likely fail on the legal merits – has changed tack and instead made an even broader claim that Congress cannot ever compel testimony from a senior adviser to the President.
This is nuts. The White House is relying on a brand new memo from the Office of Legal Counsel claiming that, as an absolute matter of separation of powers and executive branch autonomy, Congress cannot force the President’s senior advisers to testify.
Notably, the memo cites not a single court decision to support this novel proposition. The memo does begrudgingly note in passing that the only court opinion on the matter, a 2008 decision relating to testimony from former White House Counsel Harriet Miers, actually reaches the opposite conclusion: Senior advisers to the President are not immune from compelled congressional testimony.
Of course, there is also extensive precedent against the White House’s position. Senior advisers to presidents of both parties have testified in Congress routinely – and over many decades. The White House’s new position would effectively put an end to that longstanding and not particularly controversial practice, or at least give the executive branch a hook on which to selectively prevent some advisers from testifying.
Most fundamentally, the White House’s position further threatens the balance of powers between the White House and Congress. If Trump gets his way on this, then the congressional power to conduct oversight is all but doomed.
Trump’s game here is to throw the kitchen sink at the problem and, at a minimum, delay McGahn’s testimony. If Congress is serious about hearing from McGahn, then it needs to skip the ceremonial contempt votes, take the issue to court and insist on an expedited ruling from a judge. (And if Monday’s expedited ruling from a DC District Court judge, ordering Trump’s accounting firm to turn over financial records to the House Oversight Committee is any indication, several judges may be willing to take swift action.)
Anything short of that plays right into Trump’s hands.