Garrett Epps: What pleases Trump has the force of law
In support of the direction to McGahn, the administration released a legal rationale developed by the Office of Legal Counsel. It’s impossible to say whether it will hold up in court. In broad strokes, it seems like a somewhat novel assertion, and a broader one than what previous administrations have claimed. However, the test will come in a courtroom, or several, and this Supreme Court has proved sympathetic to assertions of executive power. The OLC opinion does not, as Zoe Tillman and Steve Vladeck note, actually block McGahn from testifying, or claim that the president can. Instead, it says that he isn’t legally required to do so.
But McGahn has plenty of reasons he might not want to show up. It’s hard to see how he would benefit from testifying, and whatever Democrats hope to get out of McGahn as ammo against the president, they would surely have some tough questions for McGahn as well. Testimony would probably bring unwanted flak from Trump, and it would bring unwanted attention on McGahn’s law firm, Jones Day, which does a lot of work for Republican politicians. (The Trump campaign used to be a client, but in April it hired an in-house lawyer, in what was interpreted by some as a swipe at McGahn.)
The White House also has plenty of reasons it wouldn’t want McGahn to show up, too. There’s been lots of attention given to the prospect of Barr or Special Counsel Robert Mueller testifying to the House. “Frustrated House Democrats Pin Their Hopes on Mueller,” The New York Times announced last week. What Democrats imagine they’re going to get out of either man testifying is unclear. Consider Barr’s testimony to the Senate Judiciary Committee on May 1. The attorney general occasionally made some missteps, and it was a useful forum for Senator Kamala Harris to boost her presidential campaign. It did not, however, produce any epiphanies, and no surprise—Barr, on his second tour as attorney general, knows how to deflect.
Kia Rahnama: What Congress can do what Trump appointees defy it
It’s been nearly two months since Mueller submitted his report, and despite Democrats saying since then that they want to hear from him, there’s still no testimony scheduled, because Mueller has not agreed to testify yet. Unlike Barr, Mueller has not dedicated himself to Trump’s devoted defense, but he’s unlikely to be all that interesting, either. Mueller had 448 pages in which to express his views, and if he wanted to accuse the president of obstruction of justice, that’s where he would have done it.
Moreover, Mueller and Barr are each at least a degree removed from the action: Mueller investigated the underlying events, and Barr summarized and redacted Mueller’s report. Each man has already made his view clear. While Mueller could speak to his disagreement with Barr over summarizing his report, that report strongly implies that Congress ought to do the deciding on obstruction, and he’s unlikely to be especially patient if it tries to bounce the decision back to him.