Democrats' dilemma

Democrats appear to believe the star witness in their obstruction investigation will be former White House counsel Don McGahn, who memorably told his colleagues the president was trying to get him to do “crazy s--t.” The House Judiciary Committee has subpoenaed McGahn to testify next month, no doubt hoping that he will deliver more damning anecdotes about his former boss on live television.

But McGahn’s testimony, assuming the White House doesn’t succeed in blocking it, may not end up helping Democrats. In fact, if they don’t prepare as if they were going to trial—in short, treat McGahn like an adverse witness—it could actually weaken any case for impeachment they might decide to bring later.

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Unfortunately for Democrats, they don’t have all the material they need to properly question McGahn. The only way to ensure that they can ask good questions, ones that are designed to strengthen their case and not the president’s, is to obtain the documents that Barr and the White House are keeping from them. Despite a congressional subpoena, Barr has continued to stonewall House Judiciary Chairman Jerry Nadler (D-NY), refusing to provide the full, unredacted 448-page Mueller report or any of the underlying materials. Barr has no legal basis to refuse to produce the results of a criminal investigation of the president to the House, which has the constitutional authority to impeach the president. But until Barr coughs up the materials, it is dangerous for Democrats to question McGahn.

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It’s understandable why House Democrats want to call McGahn to testify as soon as possible. Mueller cites him throughout his report, and the strongest counts of obstruction are based upon McGahn’s testimony. McGahn told Mueller that Trump ordered him to get Deputy Attorney General Rod Rosenstein to fire Mueller on multiple occasions. According to McGahn, Trump pushed him to get Rosenstein to raise false “conflicts of interest” to get Mueller removed even after McGahn told Trump doing so would create legal liability for him.

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Unwilling to follow Trump’s orders, McGahn decided to resign, later recalling that he “wanted to be more like Judge Robert Bork and not ‘Saturday Night Massacre’ Bork.” After McGahn’s internal resistance became public in early 2018, Trump pushed McGahn to publicly deny the story and McGahn refused to do so, insisting in the Times’ account was accurate. Despite intense pressure from Trump on multiple occasions, McGahn acted ethically.

This has led some to compare McGahn’s potential testimony to the testimony of John Dean, which played a role in the end of Richard Nixon’s presidency. But there are important differences between McGahn and Dean. Dean was convicted of a crime and testified pursuant to a cooperation deal. But McGahn never committed a crime and remained Trump’s White House counsel for months after Trump pressured him to obstruct justice.

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McGahn is a serious lawyer, and to his credit he realized that history would judge his actions and he acted accordingly. But McGahn is also a leader in the conservative legal movement and was responsible for Trump’s right-wing judicial nominees. He praised Trump at a Federalist Society event months after he left the administration. His refusal to carry out Trump’s order may have been motivated in part by a desire to protect Trump from even graver legal jeopardy.

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That’s why my first goal if I were advising Congress would be to hold off on the subpoena until Attorney General William Barr is forced to supply the entire, unredacted report from the special counsel and all of the underlying investigative materials, including the FBI reports of McGahn’s interviews.

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Throughout my legal career, I have questioned many witnesses who were adverse to me but did not want to lie under oath. I could count on those witnesses not to contradict their prior testimony or anything in writing, but they often put their own spin or characterization on the facts in order to soften damaging facts or highlight facts that helped their side.

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If McGahn testifies before Congress, he won’t lie under oath. But he won’t do Democrats any favors, either. Given that McGahn made his career as a conservative foot soldier, he will do what he can to avoid appearing like he is advancing the Democrats’ agenda.

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To Nadler’s credit, he has also subpoenaed McGahn for documents, which presumably include McGahn’s notes of his conversations with Trump. (McGahn, in another of his memorable lines, had to remind Trump that a “real lawyer” takes notes, unlike the legal hatchet men like Roy Cohn whom Trump relied on throughout his career.) But the White House plans to fight the subpoena of McGahn, even though it has waived any executive privilege and likely could not successfully assert it in this context even if it had not been waived.

The administration’s fight to keep the complete results of the Mueller investigation from the House will ultimately fail because it is inconsistent with our constitutional system, but in the meantime, the Democrats’ efforts are stalled and the momentum to impeach Trump could dissipate.

  Attorney and former federal prosecutor Renato Mariotti @ Politico

And before it all gets resolved, we'll be at the 2020 elections.

Although some lawmakers have noted that public testimony by witnesses like McGahn could move public opinion—crucial in an impeachment battle—it would be difficult to question McGahn using only the redacted Mueller report.

After all, the report merely contains Mueller’s characterizations of small portions of lengthy interview reports prepared by FBI agents that summarized 30 hours of testimony by McGahn. If questioned, McGahn could argue that the statements Mueller attributes to him lack important context that he told Mueller during the interviews. Without the full reports, members of Congress could not challenge McGahn.

If I led the House Democrats’ investigation, I would not call McGahn to testify at all. Even with all of the underlying materials, it would take an experienced questioner to ensure that McGahn did not undercut or at least soften the testimony cited in the Mueller report, which on its face presents devastating evidence of Trump’s obstruction of justice. And as even the most casual observer knows, the questions asked by members of Congress often are not carefully crafted, and are sometimes even embarrassing.

Instead of risking a self-inflicted wound by mishandling a key witness, Democrats can call Mueller to testify as soon as he leaves the Justice Department. Unlike McGahn, Mueller does not have an incentive to minimize Trump’s misconduct.

Democrats can ask Mueller questions about McGahn’s interviews and gain Mueller’s insight about how to put together their obstruction of justice case.

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Democrats already face an uphill battle if they impeach Trump. But if they remain focused on McGahn, their investigation could face a setback before it even gets off the ground.

...but hey, do what you want...you will anyway.