Former White House Counsel Don McGahn is scheduled to testify about Donald Trump’s obstruction of justice crimes tomorrow before the House Judiciary Committee, and – until now at least – all indications were that he would show up. Now the New York Times is reporting that Trump is “expected to instruct” McGahn not to show up. This is laughable nonsense, of course, but it does change tomorrow’s equation significantly.
First, I’ll spell out what the New York Times didn’t bother to: there is no such thing as Donald Trump “instructing” Don McGahn not to show up. That’s not a real thing. Trump has literally no ability, not as President of the United States, and not as McGahn’s FORMER employer, to instruct him not to show up. The sentiment carries about as much legal weight as if I tried to “instruct” Donald Trump to come over here and tie my shoelaces for me. It’s simply not a real thing, and it carries zero legal weight.
That said, it puts Don McGahn in something of a bind. McGahn has a disturbingly warped sense of right and wrong (he personally spearheaded putting alleged serial rapist Brett Kavanaugh on the Supreme Court), but McGahn has consistently shown that he’s highly averse to being seen as a criminal. We learned that when he documented Donald Trump’s obstruction crimes in real time, and then eagerly described them to Robert Mueller, in order to keep his own name clear amid Trump’s crime spree.
Make no mistake: while Donald Trump and the Department of Justice can use executive privilege to try to legally block Don McGahn from turning over documents, or from answering certain questions during his testimony, they cannot block him from showing up to his testimony. Accordingly, if McGahn fails to show up tomorrow, it’ll make him a garden variety criminal. Even if he doesn’t get criminally charged for it, he’ll forever be known as a de facto Trump gangster in the court of public opinion – and that notion has always seemed to really bother McGahn.
The NY Times article points out that if Don McGahn does show up and testify tomorrow, Donald Trump could try to retaliate against him by having the federal government take business away from McGahn’s law firm. But the article fails to point out that Trump would be committing a felony by doing this, and in fact Trump and William Barr are committing a felony simply by illegally trying to “instruct” McGahn not to testify; it’s witness intimidation.
In any case, the ball is now in Don McGahn’s court. He’s spent the past few years carefully trying to avoid committing any crimes. Now he’ll have to commit a crime tomorrow – which would forever ruin his reputation as a lawyer and as a public figure – if he wants to avoid Donald Trump’s wrath. Don’t expect House Democrats to go easy on McGahn if he fails to show, as they have to make him more afraid of the legal consequences they can dish out, than he is of the illegal consequences that Trump can dish out. McGahn is now living the same nightmare that the rest of us have been living since Trump illegitimately took office.
Bill Palmer is the publisher of the political news outlet Palmer Report