What kind of contempt does Jerrold Nadler have in mind? “Our subpoenas are not optional,” the House Judiciary chair intoned to the empty chair where former White House counsel Don McGahn was supposed to sit. Nadler will move forward with a contempt charge on McGahn, but the type of contempt Nadler chooses will be optional — and important:
JUST IN: House Democrats will pursue contempt against Don McGahn after the former White House counsel fails to testify "Let me be clear. This committee will hear Mr. McGahn's testimony, even if we have to go to court to secure it," Rep. Jerry Nadler says https://t.co/74tC8y7PR6 pic.twitter.com/IvwVfIGGn8
— World News Tonight (@ABCWorldNews) May 21, 2019
Former White House counsel Don McGahn, as expected, failed to show at a House Judiciary Committee hearing on Tuesday morning after being directed not to testify by President Donald Trump, and the Democratic chairman, Rep. Jerry Nadler, vowed to pursue a contempt citation against him. …
“The president has taken it upon himself to intimidate a witness who has a legal obligation to be here today. This conduct is not remotely acceptable,” he said.
“We will not allow the president to prevent the American people from hearing from this witness. We will not allow the president to block congressional subpoenas, putting himself and his allies above the law. We will not allow the president to stop this investigation, and nothing in these unjustified and unjustifiable legal attacks will stop us from pressing forward with our work on behalf of the American people. We will hold this president accountable, one way or the other,” Nadler said.
Ahem. An exercise of executive privilege is not witness intimidation, as Nadler well knows. It is a valid legal construct that allows presidents to protect conversations with advisers, and it allows presidents to prevent those aides from testifying about them to Congress. Whether this particular exercise of privilege is valid will have to get decided in the courts, but to call it “witness intimidation” is hyperbolic to an astounding degree. It sounds desperate — and it is, to which we’ll come in a moment.
Nadler’s hysterical description of this invocation makes ranking member Doug Collins’ point for him:
"[Rep. Nadler] left out what he doesn't want to have to come to and the frustrating thing that brought us here again, and again, and again, and that is the conclusions. There was no collusion. There was no obstruction charge," Rep. Doug Collins said. pic.twitter.com/9jIUfq8mRN
— POLITICO (@politico) May 21, 2019
“Democrats claim we need to dig deeper — deeper than the two years of investigation conducted by what is considered a prosecutorial dream team — because that probe ended without criminal charges against the president or his family,” he said.
“Now Democrats are trying desperately to make something out of nothing, which is why the chairman haphazardly subpoenaed today’s witness.”
Even that assumes Nadler wanted to investigate this in a legitimate fashion. That seems generous, under the circumstances. Nadler wants the circus as a way to damage Trump politically. If he wanted to legitimately investigate Mueller’s investigation, he would have started with Mueller — and he would have negotiated with the White House for document and testimony production. Instead, he demanded that Attorney General William Barr be interrogated by staff attorneys in a tribunal model and claimed total authority to command any testimony Nadler desired, and then complained when the White House refused to play along.
So what’s next? NBC News reporter Ken Dilanian wonders that, too, especially since Nadler never mentioned two magic words. Even if Nadler raises “inherent contempt,” Dilanian points out, it’s still not going to change anything in practical terms:
Let's say they invoke inherent contempt. What would be their next move? There are no good ones, which is probably why Nadler didn't invoke it. They are not going to arrest anybody and there is no way to enforce a Congressional fine — that itself would have to be litigated. https://t.co/Bkv07ZOoKO
— Ken Dilanian (@KenDilanianNBC) May 21, 2019
This whole exercise is unserious, and Nadler’s hysterics make it border on the ridiculous. If Nadler wanted a serious exercise in challenging executive privilege claims, former federal prosecutor William Hughes explains exactly how Nadler would proceed:
The Judiciary Committee cannot have it both ways: It cannot commend McGahn for his integrity, adherence to the rule of law, and loyalty to the institution of the Office of the President, and then condemn him for refusing to ignore similar obligations to his former client the law unquestionably requires. Thus, the well-founded praise McGahn has received for his loyalty to the institution of the presidency is precisely the same loyalty that now precludes him from testifying. Saying the testimony will be limited to the Mueller report does not solve the problem, as the inevitable questioning will focus on what is not in the report, throwing McGahn right back into the ethical thicket. And if questioning is only about what is in the report, then why call McGahn at all? The report speaks for itself.
The Judiciary Committee has a better alternative. Instead of holding McGahn in contempt, it should first seek a judicial determination on whether and to what extent the privileges have been waived. Congress has the power and the ability to seek such a judicial determination, and has done so several times in the past. Only after this sort of determination is made should Congress brandish contempt threats.
By seeking a court decision on these issues instead of contempt, Congress will be acting at the zenith of its powers in seeking a determination from the judicial branch and will, indeed, affirm its commitment to the rule of law Congress claims it seeks to investigate and uphold. It will put the waiver issue to rest, will remove at least one barrier for McGahn and others to testify fully, and may clear significant obstacles to obtain the full Mueller report. Most of all, it will do the right thing for an ethical lawyer who many in Congress have said has done the right thing for this country and the presidency.
Nadler’s about to burn the House’s credibility and possibly end up with judicial rulings that could seriously curtail its ability to compel testimony in the future, all for a “do-over” of an investigation that flopped in the first place. There will be plenty of contempt coming out of Nadler’s efforts, but it’s not going to land where he thinks it will.