Judge Refuses To Delay Her Order For McGahn To Comply With Congressional Subpoena

[Gothmog]

Source: Talking Points Memoerandum

The federal judge in Washington who ordered former White House counsel Don McGahn to comply with a congressional subpoena will not put that ruling on hold while it’s appealed.



Read more: https://talkingpointsmemo.com/news/don-mcghan-stay-denial-district-court

[Gothmog]

1. A district court judge has DENIED the Trump administration's request that she pause her McGahn rulin

Link to tweet

[Gothmog]

2. From the opinion

https://www.courtlistener.com/recap/gov.uscourts.dcd.210013/gov.uscourts.dcd.210013.53.0_1.pdf

This Court has no doubt that further delay of the Judiciary Committee’s
enforcement of its valid subpoena causes grave harm to both the Committee’s
investigation and the interests of the public more broadly. This is because, as the Court
explained in its Memorandum Opinion, “when a committee of Congress seeks testimony
and records by issuing a valid subpoena in the context of a duly authorized
investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its
own interest, but for the benefit of the People of the United States.” (Mem. Op. at 74.)
Interference with a House committee’s ability to perform its constitutionally assigned
function of gathering relevant and important information concerning potential abuses of
power in a timely fashion injures both the House and the People whose interests the
Congress’s power of inquiry is being deployed to protect. Thus, far from DOJ’s “no
additional harm, no foul” attitude, it is clear that the Judiciary Committee’s ongoing
investigation will be further hampered if the Committee loses its ability to question
McGahn altogether (effectively or not) during the current impeachment inquiry.

DOJ’s insistence that the Judiciary Committee is really most interested in the
Ukraine affair, and thus will not be harmed by any delay with respect to key testimony
concerning certain circumstances revealed in the Mueller Report, fares no better. For
one thing, it is the Judiciary Committee, and not DOJ, that gets to establish the scope of
its own Article I investigation, and the Committee has repeatedly represented that it is,
in fact, reviewing the Mueller Report as part of the House’s impeachment inquiry. (See
Mem. Op. at 10; see also Hr’g Tr., ECF No. 44, at 9:10–11:17.) DOJ’s related
suggestion that the Committee already has what it needs from McGahn for the purpose
of its investigation (see Def.’s Mot. at 8 (asserting that “[t]o the extent that the
Committee remains interested in the events described in the Mueller Report, that report
has been made available to the public with minimal redactions” and “the Committee’s
Chairman and Ranking Member were given access to the unredacted report, other than
grand jury information”)) likewise evidences DOJ’s manifest refusal to accept that the
Judiciary Committee is constitutionally authorized to subpoena witnesses almost
without exception, and that, as a result, the Committee is not limited to calling only
those persons whose testimony is unknown. (See Mem. Op. at 35–39.) DOJ also does
not, and cannot, deny that whatever additional information that the Committee (and the
public) might glean from McGahn’s live testimony will be lost if the Judiciary
Committee does not have an opportunity to question him prior to any House vote on
impeachment. (See Pl.’s Opp’n at 7.)

Finally, although the public does have an interest in appellate review of this
matter, it is not at all clear that the D.C. Circuit would actually lose the ability to decide
“the weighty issues presented in this lawsuit” if the stay is denied, as noted above.
(Def.’s Mot. at 9); see also Miers Stay Opinion, 575 F. Supp. 2d at 205. By contrast,
the Judiciary Committee would almost certainly lose the chance to question McGahn as
part of the present impeachment inquiry if a stay order issues, which would
unquestionably harm the ongoing investigation that the Judiciary Committee is
conducting, and by extension, would also injure the public’s interest in thorough and
well-informed impeachment proceedings. DOJ does not dispute that McGahn is a key
witness to events that the Judiciary Committee seeks to review, or that “Congress could
be seriously handicapped in its efforts to exercise its constitutional function wisely and
effectively” if the Committee is not able to compel timely testimony related to the
current impeachment inquiry. Quinn v. United States, 349 U.S. 155, 160–61 (1955)
(citations omitted). Therefore, any additional delay in McGahn’s compliance with the
Committee’s valid subpoena causes real and certain harm to the Judiciary Committee
and to the broader interests of the public.

[Volaris]

11. Well that judge just kicked AG Barr square in the nuts lol!!!

[George II]

15. I doubt it, trump has them in a glass case in the Oval Office.

[Volaris]

17. Trump must be using them as chinese hand excercise balls...

Trying to work out and buff up those tiny, inadequate hands of his lol...

[lagomorph777]

43. Son of a bitch you made me laugh at work!

[RainCaster]

20. Putin has them, right next to DFTs balls

Along with Lindsey & McTurtle

[lagomorph777]

42. No, they've been shipped to the Kremlin.

Putin has a giant underground testicle vault; one entire wing is dedicated to US GOP politicians.

[Canoe52]

18. Really? and all this time I thought he was a eunuch!

[Volaris]

19. Trump does love his cucks, doesnt he lol?

[RainCaster]

21. He's the cuck, Vlad has full control

[Volaris]

23. Well ya, but theres always an asslicking order, isn't there lol?

As long as you're not 'bottom bitch'....

[RainCaster]

33. The first one is the bottom bitch

Everyone knows that.

[stuffmatters]

12. If there was ever a "beautiful" opinion, this one is beautiful.

And seems constitutionally pretty airtight!

[dchill]

28. Well, now, that's about the size of it!

[DesertRat]

3. Kick and rec!

[Ligyron]

4. Yeah, I think just about everyone on earth wants to hear what this guy has to say.

Even Trumpers. Everybody knows it's just a stall and not likely to succeed anyway.

[Mr.Bill]

5. And he still won't testify

and nothing will happen.

[vsrazdem]

6. Yes he will. He now has a court order to testify and would be in contempt of court.

I think he would like to keep his license.

[Mr.Bill]

8. Then he'll just go there and take the fifth.

I guess he could be disbarred, but as long as Barr in the AG, no one is getting arrested. Correction: No republican is getting arrested.

[TeamPooka]

9. his taking the fifth works for me. nothing screams guilty to the American public than someone

invoking their 5th amendment rights over and over

[FreeWheatForever]

13. I am thinking of how the fifth turned out when invoked by...

Mark Furman. He was guilty, OJ went free.

[onenote]

14. He will assert executive privilege

Even if it's not justified, it will delay matters as that issue would then have to be litigated.

[Fritz Walter]

39. The American Public doesn't care

Witness the election of Rick Scott as Florida's governor -- for two terms -- and now senator.

From the Tampa Bay Trib, citing a 2014 Democratic Party TV ad:

"Maybe you've heard about what was the largest Medicare fraud in history, committed when Rick Scott was a CEO," the narrator says. "Or that Scott's company paid record fraud fines of $1.7 billion. And when Scott was deposed in lawsuits about his company, he took the Fifth 75 times. Meaning, 75 times, Scott refused to answer questions because — if he had — he might admit to committing a crime."
...
Scott started his hospital company, Columbia, in 1987 by purchasing two El Paso, Texas, hospitals. He quickly grew the company into one of the country's largest publicly traded hospital chains, and in 1994, merged Columbia with Tennessee-headquartered HCA.

In early 1997, federal agents revealed they were investigating the Columbia/HCA chain for, among other things, Medicare and Medicaid fraud. Allegations included that Columbia/HCA billed Medicare and Medicaid for tests that were not necessary or ordered by physicians, and that the hospital chain would perform one type of medical test but bill the federal government for a more expensive test or procedure. Agents seized records from facilities across the country including in Florida.

Scott resigned in July 1997. Scott said he wanted to fight the federal government accusations, but the corporate board of Columbia/HCA wanted to settle. In 2000, the company pleaded guilty to at least 14 corporate felonies and agreed to pay $840 million in criminal fines and civil damages and penalties.

[lagomorph777]

44. "If you're innocent why are you taking the Fifth Amendment?"

“Like you see on the mob, right? You see the mob takes the Fifth. If you’re innocent why are you taking the Fifth Amendment?”

https://www.dailykos.com/stories/2017/5/22/1665062/-Trump-If-You-re-Not-Guilty-Why-Take-The-5th-As-Mike-Flynn-Proceeds-To-Do-Just-That

[vsrazdem]

24. I believe the judge outlined what was considered executive privilege in her ruling. He has no

reason to take the fifth, he is not accused of comitting a crime.

[Mr.Bill]

25. Just because you are not accused of committing a crime

doesn't mean that your testimony couldn't incriminate you.

[vsrazdem]

26. They are not going to ask him questions that would incriminate him. He already refused to do

Trumps bidding (breaking the law). They are going to verify the Mueller report in his own words, in other words they are going to make him say out loud to the world that Trump asked him to lie to the public. That does not incrimiate him.

[Mr.Bill]

27. So you've got a list of their questions?

We don't know how this is going to go. What we do know is so far he has resisted testifying.

[vsrazdem]

31. They aren't going to ask questions they don't have the answers to. If they ask anything not

included in the Mueller report, he can claim executive privilege.

[Mr.Bill]

32. Then he can claim executive privilege all he wants

since no one knows what's in the unredacted Mueller report.

[vsrazdem]

34. The judge stated in her ruling what executive privilege involves regarding his testimony, but

it appears you don't really seem to want answers.

[Mr.Bill]

35. We'll see how it plays out.

My hopes are not very high.

[vsrazdem]

36. I'm looking forward to it. I'm also wondering what documents Lev Parnas is turning over to

the committee. The judge ruled today that his texts and documents can be turned over, and I am so hoping he has something on there about Nunes. That would be scrumptiuous.

[Mr.Bill]

37. I am hopeful about the Parnas documents also.

But they must be vetted carefully, which I know the Democrats will do. We don't want to get Dan Rathered.

[pandr32]

7. Let's hope he complies!

[lark]

10. Started to just say - he won't.

Then decided that miracles do occasionally happen and I shouldn't preclude the great joy of that - but that's what it would take.

[Gothmog]

16. More from the opinion

This is very relevant https://www.courtlistener.com/recap/gov.uscourts.dcd.210013/gov.uscourts.dcd.210013.53.0_1.pdf

‘[A]n impeachment investigation involving the President of the United States’
is ‘a matter of the most critical moment to the Nation.’” In re Application of Comm. on
Judiciary, 2019 WL 5608827, at *3 (quoting In re Report & Recommendation of June 6,
1972 Grand Jury, 370 F. Supp. 1219, 1230 (D.D.C. 1974) (Sirica, C.J.))) (alteration in
original). Indeed, the fact that the issuance of a stay of McGahn’s testimony would
impede an investigation that a committee of Congress is undertaking as part of an
impeachment inquiry is yet another distinction between the instant circumstances and
those that existed when the D.C. Circuit stayed the district court order in Miers. And as
this Court noted above, the D.C. Circuit Miers panel also did not address any of the
four traditional stay factors, each of which weighs against the issuance of a stay under
the circumstances presented here for the reasons previously explained.

[Gothmog]

22. Judge flays DOJ, calling its arguments 'disingenuous' & 'unacceptable mischaracterization

Link to tweet

[certainot]

29. can someone please explain.... will he need to show up in public? or is the trump admin able to

stop him

he doesn't seem like a very partisan guy - just a little nuts and thinking he can work his way into supreme court or at least keep a law practice where he can make $2000/hr. he's hiding behind the courts. he likely will spill the beans rather than lie and risk going to jail. but he's going to have to be forced but when he is he's not going to lie.

someone tell me please- is he going to show up in public before new years?

[TomSlick]

30. Ouch.

The opinion is seventeen pages of get outta my court, you dumb ass - of course, in the best judicial language.

Any lawyer with the capacity for shame would be mortified for advancing such an argument. The reputation of the DoJ will take years to recover from the Barr years.

[Gothmog]

38. Great comments from Neal Katyal

Link to tweet

[H2O Man]

40. Neal Katyal is great.

When he talks, I listen. Very carefully.

[H2O Man]

41. Recommended.

[stopdiggin]

45. couple more bits you might have missed

as Justice was getting a thorough spanking --

"For one thing, it is the Judiciary Committee, and not DOJ, that gets to establish the scope of
its own Article I investigation, and the Committee has repeatedly represented that it is,
in fact, reviewing the Mueller Report as part of the House’s impeachment inquiry."

".. likewise evidences DOJ’s manifest refusal to accept that the
Judiciary Committee is constitutionally authorized to subpoena witnesses almost
without exception ..."

[ancianita]

46. +1000!