Last week, Senate Republicans filibustered a bill to establish a bipartisan committee to investigate the Jan. 6 attack on the Capitol. This came after the Senate refused to hear witnesses on the same events at Donald Trump’s second impeachment trial. Though the Department of Justice is conducting an extensive investigation of the events of Jan. 6 and has prosecuted many of the participants, the odds are low that this investigation will lead to accountability for the instigator of the Jan. 6 insurrection, Donald Trump. Further, the DOJ has thus far declined to appoint a special counsel to investigate Trump’s role in inciting the insurrection, a step that would presumably be necessary if a serious investigation of his involvement, or that of other political leaders, were to be undertaken.
Ordinary course investigations of Trump administration appointees and affiliates are continuing, including most recently an FBI investigation of Postmaster General Louis DeJoy, a matter about which we wrote and testified before a subcommittee of the House Oversight Committee.
Merrick Garland’s Justice Department, though, seems to have little appetite for holding Trump accountable for his other misdeeds, even opposing efforts by others to do so. It recently asked a federal judge to dismiss lawsuits against the former president relating to the forced clearing of protesters at Lafayette Square in June of 2020. As we have written about elsewhere, the department has also been jealously guarding the secrecy of the Office of Legal Counsel under Trump, refusing to turn over a memorandum relating to the department’s decision not to accuse Trump of obstruction of justice following the release of the Mueller report. And the department has been defending the assertions of executive privilege of Trump’s DOJ over Congress’ subpoena of former White House counsel Don McGahn, until recently when the department partially backed down by agreeing to allow McGahn to testify about publicly released portions of his prior testimony to special counsel Robert Mueller.
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McGahn’s testimony will be critically important for understanding Mueller’s suggestion in part two of his report that Trump may have committed obstruction of justice. If Congress is to engage in meaningful oversight, it is essential that the department afford the House Judiciary Committee the opportunity to ask McGahn about all aspects of the Trump presidency during McGahn’s time in office. In other words, Garland’s Justice Department should withdraw the assertion of privilege with regard to anything McGahn can tell Congress about the president he previously served. This would not only strike a blow for transparency; it would also begin to correct the ever-expanding concept of executive privilege, a doctrine that has not served the interests of U.S. democracy or national security.
In this instance, as in others, the assertion of executive privilege appears designed to obscure the president’s misdeeds, and the DOJ’s support of that claim sets back efforts to bring the truth about Trump’s presidency to light. The DOJ, which is ultimately answerable to the president, should never have had the ability to block Congress from hearing the testimony it requires to investigate the president. It is profoundly problematic to allow a president to control the evidence Congress receives, especially when it is investigating him. Worse, a president’s assertion of privilege may itself be an act of obstruction of Congress when used for the sole purpose of avoiding scrutiny into presidential misdeeds.
In addition to waiving McGahn’s testimonial immunity, the DOJ must revisit an OLC memo issued in 2019 opining that presidential testimonial immunity entitles the DOJ to bar McGahn and other senior executive branch officials from testifying to Congress. This memo is out of keeping with the D.C. Circuit’s 2020 decision in Committee on the Judiciary of the United States House of Representatives v. McGahn, as well as with the Supreme Court’s opinion in Trump v. Mazars, both of which affirmed Congress’ ability to enforce its subpoenas in federal court.
As the McGahn and Mazars cases make clear, Congress has a constitutional right and duty to oversee the executive branch, particularly when there are allegations of illegal conduct by high-ranking officials. Moreover, U.S. v. Nixon and Trump v. Vance make clear that a sitting president cannot refuse to produce evidence, or insist that others refrain from producing evidence, for a legitimate criminal investigation just because it involves the president himself.
Even during the Trump presidency, McGahn was required to provide evidence to DOJ prosecutors, just as President Bill Clinton’s White House lawyers were required by federal courts to provide evidence to independent counsel Kenneth Starr in 1998. Furthermore, there is long-standing authority beginning with U.S. v. Nixon that even the most private presidential communications—in that case White House tapes of the president’s phone conversations—are not privileged when there is an investigation of presidential wrongdoing. If Trump criminally obstructed justice when he asked McGahn to arrange to have Mueller fired, their communications would not be privileged any more than Nixon’s attempt to obstruct the Watergate investigation.
The McGahn litigation has taught us that executive privilege can be profoundly antithetical to efforts to hold presidents accountable to the American people. Administrations that protect their predecessors’ real or imagined privilege from congressional subpoenas undermine the rule of law. Every president should embrace the fact that communications with White House staff and other government employees will eventually see the light of day and be subject to appropriate discovery by the representatives of the people. The Department of Justice can begin to push back on the damaging expansion of executive privilege by doing everything reasonably within its power to allow the truth about the former president’s conduct to come to light.