McGahn won’t testify before Congress. Not a problem.

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The White House has informed the House Judiciary Committee that it will bar former White House Counsel Don McGahn from testifying in response to the committee’s subpoena. That might seem like a problem for the Committee’s probe into possible obstruction of justice by Trump. But it shouldn’t be.

It’s not a problem because McGahn’s extensive eyewitness accounts of presidential obstruction of justice are already on the record in the Mueller report , even in the redacted version that has been made public.

Committee chair Jerry Nadler said as much when he responded to the news from the White House. According to a statement issued by Nadler’s office, “It is absurd for President Trump to claim privilege as to this witness’s testimony when that testimony was already described publicly in the Mueller report.”

The problem lies with Congress delaying a formal impeachment inquiry despite the mountain of evidence offered up by the redacted Mueller report. They already have all the testimony they need to begin impeachment.

Former federal prosecutors earlier this month made it clear they agree with that sentiment. In a statement  signed by nearly 1,000 of the professional prosecutors, they state very plainly:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

Everyone recognizes that Trump is stalling for time with his blanket refusal to respond to any Congressional subpoenas. By claiming the need to hear directly from witnesses before possibly proceeding with impeachment, Congress plays right into Trump’s hand. 

Now, Congress does need to fight this out in the courts. They can’t allow any president, but especially this president, to ignore the Constitutional prescription of checks and balances. But Congress certainly doesn’t have to wait for an answer from the courts before beginning impeachment proceedings. As the former prosecutors and Chairman Nadler himself have noted, there’s plenty of evidence in the Mueller report to start right away …  like yesterday.

I reviewed the Mueller report to see just what kind of evidence and testimony they have from Don McGahn. It is extensive. His name alone appears 529 times in the report. And there is no lack of documentation of Trump acting to impede the Special Counsel’s investigation.

Here, straight from the Mueller report is what the Judiciary Committee would have been hearing if McGahn showed up. I restricted these excerpts to occasions where Trump and McGahn were dealing directly with each other. There’s even more McGahn in the report than this rather long list. And it actually makes for some interesting reading. All of the following quotes are taken from Volume II, the portion of the report focused on obstruction of justice.

So here you go, Judiciary Committee, the testimony of former White House Counsel Don McGahn, as provided in the Mueller report.

In early March [2017], the President told White House Counsel Donald McGahn to stop Sessions from recusing. And after Sessions announced his recusal on March 2, the President expressed anger at the decision and told advisors that he should have an Attorney General who would protect him. (page 3)

The President also twice called Comey directly, notwithstanding guidance from McGahn to avoid direct contacts with the Department of Justice. (page 4)

On June 17, 2017, the President called McGahn at home and directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed. McGahn did not carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre. (page 4)

In early 2018, the press reported that the President had directed McGahn to have the Special Counsel removed in June 2017 and that McGahn had threatened to resign rather than carry out the order. The President reacted to the news stories by directing White House officials to tell McGahn to dispute the story and create a record stating he had not been ordered to have the Special Counsel removed. McGahn told those officials that the media reports were accurate in stating that the President had directed McGahn to have the Special Counsel removed. The President then met with McGahn in the Oval Office and again pressured him to deny the reports. In the same meeting, the President also asked McGahn why he had told the Special Counsel about the President’s effort to remove the Special Counsel and why McGahn took notes of his conversations with the President. McGahn refused to back away from what he remembered happening and perceived the President to be testing his mettle. (pages 4 & 5)

That afternoon, McGahn notified the President that [Acting Attorney General Sally] Yates had come to the White House to discuss concerns about Flynn. McGahn described what Yates had told him, and the President asked him to repeat it, so he did. McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § I 001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. (pages 31 & 32)

Also on January 27, the President called FBI Director Comey and invited him to dinner that evening…McGahn had previously advised the President that he should not communicate directly with the Department of Justice to avoid the perception or reality of political interference in law enforcement. (page 33)

McGahn recalled that the President denied saying to Comey that he hoped Comey would let Flynn go, but added that he was “allowed to hope.” The President told McGahn he did not think he had crossed any lines. (page 44)

While the President has publicly denied those details, other Administration officials who were present have confirmed Comey’s account of how he ended up in a one-on-one meeting with the President. And the President Acknowledged to Priebus and McGahn that he in fact spoke to Comey about Flynn in their one-on-one meeting. (page 45)

…the President called McGahn and urged him to contact Sessions to tell
him not to recuse himself from the Russia investigation. McGahn understood the President to be concerned that a recusal would make Sessions look guilty for omitting details in his confirmation hearing; leave the President unprotected from an investigation that could hobble the presidency and derail his policy objectives; and detract from favorable press coverage of a Presidential Address to Congress the President had delivered earlier in the week. (page 49)

On March 3 [2017], the day after Sessions’s recusal, McGahn was called into the Oval Office. Other advisors were there, including Priebus and Bannon. The President opened the conversation by saying, “I don’t have a lawyer.” The President expressed anger at McGahn about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney. McGahn interpreted this comment as directed at him, suggesting that Cohn would fight for the President whereas McGahn would not. The President wanted McGahn to talk to Sessions about the recusal, but McGahn told the President that DOJ ethics officials had weighed in on Sessions’s decision to recuse. The President then brought up former Attorneys General Robert Kennedy and Eric Holder and said that they had protected their presidents. The President also pushed back on the DOJ contacts policy, and said words to the effect of, “You’re telling me that Bobby and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?” Bannon recalled that the President was as mad as Bannon had ever seen him and that he screamed at McGahn about how weak Sessions was. (pages 50 & 51)

…notes taken by Annie Donaldson, then McGahn’ s chief of staff, on March 12, 2017, state, “POTUS in panic/chaos … Need binders to put in front of POTUS. (1) All things related to Russia.” (page 52)

According to McGahn and Donaldson, the President had expressed frustration with Comey before his March 20 testimony, and the testimony made matters  worse … McGahn said the President thought Comey was acting like “his own branch of government.” (page 53)

McGahn, Donaldson, and senior advisor Stephen Miller recalled that the President was upset with Comey’s testimony and the press coverage that
followed because of the suggestion that the President was under investigation. Notes from the White House Counsel’s Office dated March 21, 2017, indicate that the President was “beside himself” over Comey’s testimony. The President called McGahn repeatedly that day to ask him to intervene with the Department of Justice, and, according to the notes, the President was “getting hotter and hotter, get rid?” (page 54)

..the President told senior advisors, including McGahn and Priebus, that he had reached out to Comey twice in recent weeks. The President acknowledged that McGahn would not approve of the outreach to Comey because McGahn had previously cautioned the President that he should not talk to Comey directly to prevent any perception that the White House was interfering with investigations. (page 59)

The President sought to speak with Acting Attorney General Boente directly and told McGahn to contact Boente to request that Comey make a clarifying statement. The President then asked other intelligence community leaders to make public statements to refute the suggestion that the President had links to Russia, but the leaders told him they could not publicly comment on the
investigation. (page 61)

McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Comey did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation. (page 62)

In the afternoon following Comey’s testimony, the President met with McGahn, Sessions, and Sessions’s Chief of Staff Jody Hunt. At that meeting, the President asked McGahn how Comey had done in his testimony and McGahn relayed that Comey had declined to answer questions about whether the President was under investigation. The President became very upset and directed his anger at Sessions. (page 63)

In the morning of Monday, May 8, 2017, the President met in the Oval Office with senior advisors, including McGahn, Priebus, and Miller, and informed them he had decided to terminate Comey. The President read aloud the first paragraphs of the termination letter he wrote with Miller and conveyed that the decision had been made and was not up for discussion. (pages 65 & 66)

McGahn and [White House Counsel’s Office attorney Uttam] Dhillon urged the President to permit Comey to resign, but the President was adamant that he be fired. (page 67)

The President asked Miller to draft a new termination letter and directed Miller to say in the letter that Comey had informed the President three times that he was not under investigation.443 McGahn, Priebus, and Dhillon objected to including that language, but the President insisted that it be included. (page 68)

McGahn said he believed the President wanted the language included so that people would not think that the President had terminated Comey because the President was under investigation. (age 69)

In the week leading up to Comey’s May 3, 2017 Senate Judiciary Committee testimony, the President told McGahn that it would be the last straw if Comey did not set the record straight and publicly announce that the President was not under investigation. (page 75)

That weekend, the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed. (page 78)

In the days following the Special Counsel’s appointment, the President repeatedly told advisors, including Priebus, Bannon, and McGahn, that Special Counsel Mueller had conflicts of interest. (page 80)

McGahn recalled that around the same time, the President complained about the asserted conflicts and prodded McGahn to reach out to Rosenstein
about the issue.538 McGahn said he responded that he could not make such a call and that the President should instead consult his personal lawyer because it was not a White House issue. (page 81)

McGahn advised that the President could discuss the issue with his personal attorney but it would “look like still trying to meddle in [the] investigation” and “knocking out Mueller” would be “[a]nother fact used to claim obst[ruction] of ust[ice].” McGahn told the President that his “biggest exposure” was not his act of firing Comey but his “other contacts” and “calls,” and his “ask re: Flynn.” (pages 81 & 82)

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel. On the first call, McGahn recalled that the President said something like, “You gotta do this. You gotta call Rod.” McGahn said he told the President that he would see what he could do. McGahn was perturbed by the call and did not intend to act on the request. He and other advisors believed the asserted conflicts were “silly” and “not real,” and they had previously communicated that view to the President. McGahn also had made clear to the President that the White House Counsel’s Office should not be involved in any effort to press the issue of conflicts. McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not ” Saturday Night Massacre Bork.” McGahn considered the President’s request to be an inflection point and he wanted to hit the brakes. (pages 85 & 86)

When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.” (page 86)

Priebus recalled that McGahn said that the President had asked him to “do crazy shit,” but he thought McGahn did not tell him the specifics of the President’s request because McGahn was trying to protect Priebus from what he did not need to know. (page 87)

After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice ‘s attention…Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed. (page 88)

…the President had discussed “knocking out Mueller” and raised conflicts of interest in a May 23, 2017 call with McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel. (page 88)

McGahn recalled that during the summer of 2017, he and the President discussed the fact that if Sessions were no longer in his position the Special Counsel would report directly to a nonrecused Attorney General. (page 108)

The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel. McGahn refused and insisted his memory of the President’s direction to remove the Special Counsel was accurate. (page 113)

On January 26, 2018, the President’s personal counsel called McGahn ‘s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to tire the Special Counsel and that he had threatened to quit in protest. McGahn’s attorney spoke with McGahn about that request and then called the President’s personal counsel to relay that McGahn would not make a statement. (page 114)

The President said that McGahn leaked to the media to make himself look good. The President then directed [White House Staff Secretary Rob] Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel. Porter thought the matter should be handled by the White House communications office, but the President said he wanted McGahn to write a letter to the file “for our records” and wanted something beyond a press statement to demonstrate that the reporting was inaccurate. The President referred to McGahn as a “lying bastard” and said that he wanted a record from him. (page 115)

Porter told McGahn that he had to write a letter to dispute that he was ever ordered to terminate the Special Counsel. McGahn shrugged off the request, explaining that the media reports were true. McGahn told Porter that the President had been insistent on firing the Special Counsel and that McGahn had planned to resign rather than carry out the order, although he had not personally told the President he intended to quit. Porter told McGahn that the President suggested that McGahn would be fired ifhe did not write the letter. (page 116)

The President began the Oval Office meeting by telling McGahn that the New York Times story did not ” look good” and McGahn needed to correct it.811 McGahn recalled the President said, “I never said to fire Mueller. I never said ‘fire.’ This story doesn’t look good. You need to correct this. You’re the White House counsel.” (page 116)

The President asked McGahn, “Did I say the word ‘fire’?” McGahn responded, “What you said is, ‘Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel. “‘ The President responded, “I never said that.” (page 117)

The President also asked McGahn in the meeting why he had told Special Counsel’s Office investigators that the President had told him to have the Special Counsel removed. McGahn responded that he had to and that his conversations with the President were not protected by attorney-client privilege. The President then asked, “What-about these notes? Why do you take notes? Lawyers don’ t take notes. I never had a lawyer who took notes.” McGahn responded that he keeps notes because he is a “real lawyer” and explained that notes create a record and are not a bad thing. The President said, ” I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.” (page 117)

Donald J. Trump obstructed justice. As Mitch McConnell said on the floor of the Senate, “Case closed.” Let’s get on with it Congress.

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