President Trump wasn’t kidding a couple weeks ago when he said: “We’re fighting all subpoenas.”
He was answering a question then about the House Judiciary Committee’s demand for documents and testimony from former White House Counsel Don McGahn, who figured prominently in special counsel Robert S. Mueller III’s report on Russian interference in the 2016 presidential election. But judging from the administration’s actions in the intervening weeks, Trump’s comment appears to extend toward all congressional investigations into his conduct.
And to a degree, House Democrats have played right into Trump’s strategy.
The latest development came Wednesday morning, when the administration announced that the president was asserting executive privilege and refusing to turn over a complete, unredacted version of Mueller’s report to the House Judiciary Committee. As it has been saying since Mueller filed the report, the Justice Department insisted that legal prohibitions on disclosing grand jury testimony and concerns about impairing ongoing investigations prevented it from revealing certain sensitive portions of the text.
White House Press Secretary Sarah Sanders issued a statement with a more pointed take, saying: “The American people see through Chairman [Jerrold] Nadler’s desperate ploy to distract from the President’s historically successful agenda and our booming economy. Neither the White House nor Attorney General Barr will comply with Chairman Nadler’s unlawful and reckless demands.”
Congress has an obvious interest in seeing as much of the report as it can. But the main unanswered question from Mueller’s report — the one Mueller seemed to be inviting Congress to explore — is whether the president obstructed justice by trying to impede the special counsel’s investigation. So Nadler (D-N.Y.) and his colleagues don’t need to see every blacked-out word of the report; instead, they need to get as much as they can from Mueller’s obstruction probe, including the documents the special counsel gathered to support the report. Those were covered by the Nadler subpoena too.
And Trump is certainly trying to hide the obstruction-related material. The documents that the White House is not letting McGahn turn over are all related to the pressure Trump allegedly put on McGahn to have Mueller removed or undermine the investigation.
Maybe Nadler’s demand for the entire unredacted report was just a negotiating position. But it was also an overreach, making it easier for the administration to portray itself as reasonable and concerned for the rule of law. Because there is a longstanding federal rule against the disclosure of grand jury testimony, some of which was included in Mueller’s report (and redacted from the public version). Congressional investigations aren’t automatically exempt from it.
The whiff of overreach extends to many of the subpoenas issued by House Democrats. After two years of Republicans giving the administration the see-no-evil treatment, Democrats were understandably eager to take a harder look. But rather than confine themselves to the policy changes and executive actions that cry out for scrutiny, they seem intent on dredging up damaging information from Trump’s past and the campaign no one expected him to win. This includes tax returns from Trump and his businesses going back to 2013, long before he became a presidential candidate. (For a different take, Brookings’ Steven M. Rosenthal offers a good argument for why Trump’s older tax returns are relevant.)
To be clear, the Democrats are seeking some vitally important information that the public should see. The president’s conduct and his conflicts should be open to scrutiny, even if the only lawmakers interested in providing it are from the opposition party. And we can’t rely on leakers to provide the full picture.
Regardless, the House seems likely to hold Atty. Gen. William Barr in contempt for refusing to turn over the full report and supporting documents, and the fight will go from there to the courts. It would be an easier one for Democrats to win, both in court and in the public, if they were asking only for the material they really needed.