For the last two years, Democrats in Congress have agitated for legislation that would protect Robert Mueller at all costs from Donald Trump. Now that Mueller has finished his investigation and found no basis for charges of collusion with Russia, House Judiciary chair Jerrold Nadler has decided that Mueller’s not as trustworthy as he first thought. Not only will he subpoena the Department of Justice for the full, unredacted Mueller report, Nadler also wants to subpoena all of Mueller’s evidence:
House Judiciary Chairman Jerry Nadler will authorize a subpoena this week to obtain the full, unredacted report from special counsel Robert Mueller, teeing up a showdown between congressional Democrats and the Trump administration over the nearly 400-page report.
Nadler said Monday that he had scheduled a markup on Wednesday to authorize a subpoena for the Mueller report, as well as the special counsel’s underlying evidence. The markup would give the New York Democrat the green light to subpoena the report, though Nadler has not said whether he would do so before Attorney General William Barr releases a redacted version publicly, which he is expected to do later this month.
The House Judiciary Committee will also vote to authorize subpoenas for five former White House staffers — Don McGahn, Steve Bannon, Hope Hicks, Reince Priebus and Ann Donaldson — whom Nadler says “may have received documents from the White House relevant to the Special Counsel investigation … waiving applicable privileges under the law.”
Subpoenas to White House officials are nothing new, although Nadler can still expect a fight over it. That’s especially true when it comes to McGahn, formerly the White House counsel for Trump. It’s been long established that Trump doesn’t get to claim traditional attorney-client privilege with McGahn, as the position exists as legal counsel for the office rather than the person. However, executive privilege still applies, and we can expect to hear a lot about that with all five of these potential witnesses, especially McGahn. Nadler’s idea of a waiver sounds speculative at best, and courts are not likely to bite on it unless Nadler has a lot more than a “may have” when it comes to alleging improprieties around the Mueller investigation.
The subpoena on the Mueller report and especially its underlying evidence is more of the same. It’s a political fight more than a legal battle, because on the law Nadler loses. Much of Mueller’s evidence consists of grand jury testimony, which by law can’t be released publicly. That will almost certainly comprise most of the redactions from the report too, which means that a court won’t bite on either of those demands when the subpoenas inevitably get challenged.
Rep. Kathryn Clarke, the House Democrats’ caucus vice chair, argues that secrecy for grand jury testimony has been waived in the past:
"We need to see this full report," says @RepKClark, Vice Chair of the House Democratic Caucus as Democrats are set to authorize a subpoena for the full Mueller report.
— CNN (@CNN) April 1, 2019
Has it been waived in counterintelligence investigations? That seems very, very doubtful. A court might take an especially dim view of such a subpoena in a case where we already have one FISA warrant for surveillance on an American citizen turn out to be unfounded.
That’s not really the point, though. Nadler would love to see the unredacted report and to make it public, but the next best thing is to paint everyone else as hiding it — even though they can’t publish it without breaking the law. As long as Nadler and other Democrats can insinuate that Attorney General William Barr is keeping the report secret on orders from Trump, they can keep pretending that Mueller found dirt on Trump but for some reason got silenced by the administration. That’s nonsensical on its face — Mueller’s helping Barr with the redactions, and if Barr was misrepresenting Mueller’s findings, there’s nothing preventing Mueller now from public rebuttals.
Nevertheless, Nadler will persist in maintaining some viability for Democratic conspiracy theories. It’s all they have left from two years of Russia hysteria and their modern version of a Red Scare.