Hell Hath No Fury Like a Self-Promoting Republican Lawyer Scorned

Yesterday, Jerry Nadler subpoenaed Don McGahn, both to appear and testify on May 21, but also to turn over a slew of documents pertaining to 36 topics, the two most interesting of which are:

23. President Trump’s exposure in the Special Counsel Investigation relating to “other contacts,” calls,” or “ask re Flynn” as mentioned in Volume II, page 82 of the Report.

[snip]

34.  Communications relating to United States imposed sanctions or potential sanctions against the Russian Federation from June 16, 2015 to October 18, 2018, including but not limited to the sanctions imposed pursuant to the Magnitsky Act.

I suspect this is a friendly subpoena — a subpoena giving the witness an excuse for testifying. I say that not just because McGahn is a self-promoter who likes to pretend he’s the hero of saving Trump from prison, but also because McGahn got noticeably more chatty with Mueller’s office as Trump grew more unmanageable and the risk to McGahn’s future increased. Indeed, because he leaked his heroic role to the press, he ended up getting called in for further interviews.

At least as described by its footnotes, the Mueller Report revealed that McGahn testified five times. The first three seem to be largely sequential interviews covering three big events:

  • November 30, 2017: Flynn’s firing
  • December 12, 2017: Sessions’ recusal and Comey’s firing
  • December 14, 2017: Mueller’s appointment and Trump’s efforts to fire him, both directly (through McGahn) and indirectly (by firing Sessions)

Then, after the NYT and WaPo reported two versions of the story, in January of last year, that Trump asked McGahn to fire Mueller, McGahn was interviewed at more length about that.

  • March 8, 2018: Trump’s order to fire Mueller and attempt to force McGahn to correct the NYT story

Then, this year, after he had been fired for cooperating with Mueller, he was interviewed again, apparently to clarify some timing related issues (the interview apparently focused on his private phone records), and to explain why he didn’t tell Anne Donaldson, Reince Priebus, and others about the order to fire Mueller.

  • February 28, 2019

There are signs that, during the first set of interviews, McGahn was shading the truth. As expected, his story about the Flynn firing (and the CYA memo he drafted the day after Flynn’s firing) is dodgy — some of which I’ll return to, For example, his CYA memo claimed that, “Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the Department of Justice would not object to the White House taking action against Flynn,” when in fact she had told him she alerted him to Flynn’s lies precisely so the White House could take action. At times, it was clear McGahn was trying to put a less damning spin on things, especially notes taken by Anne Donaldson or Sessions Chief of Staff Jody Hunt. For example, he claimed a note that said “No comms, / Serious concerns about obstruction” didn’t mean that his office had tried to set a rule not to speak to Sessions about the investigation, reflected instead a concern about the press spin; that spin might reflect his own concern about his efforts to convince Sessions not to recuse.

In those initial interviews, too, McGahn’s story about his effort to get DOJ to issue a statement claiming the President wasn’t being investigated differs significantly from Dana Boente’s, which is useful to his story as it provides an excuse for his orchestration of blaming the Jim Comey firing on Rod Rosenstein. Perhaps the most ridiculous claim, from the initial meetings, is that Trump insisted on emphasizing Comey’s refusal to say he wasn’t under investigation because he didn’t want everyone to know Comey was fired over the Russia investigation. “McGahn said he believed the President wanted the language included so that people would not think that the President had terminated Comey because the President was under investigation” — this, even in spite of the fact that Trump told McGahn that he had told Sergey Lavrov he fired Comey because of the Russian investigation to take the pressure off.

McGahn,  and to a lesser degree Donaldson, both invented a bullshit story for why they were asking Richard Burr which Trump aides were targeted by the investigation, which a footnote dismantles.

The week after Comey’s briefing, the White House Counsel’s Office was in contact with SSCI Chairman Senator Richard Burr about the Russia investigations and appears to have received information about the status of the FBI investigation.309

309 Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11 /6/17 302, at 15. The “targets” were identified in notes taken by Donaldson as “Flynn (FBI was ~ooking for phone records”; “Comey~Manafort (Ukr + Russia, not campaign)”; [redacted] “Carter Page ($ game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. § 1001 for lying to the FBI). SC_AD_00l98 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets ofSSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Comey’s briefing to the Gang of8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI’s targets).

Perhaps most tellingly, the first time McGahn got asked about Trump’s efforts to fire Mueller, he was not all that forthcoming.

When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.

From the footnotes, it appears that Mueller’s office went back to Don McGahn in March 2018, after flattering stories about his heroic role showed up in NYT, WaPo, and CNN and got more clarification about how McGahn prevented Trump from firing Mueller (basically, by ignoring him). That interview, too, gathered information about how Trump tried to bully McGahn into correcting the NYT story, which falsely claimed that McGahn had told Trump he would quit. (Truthfully, McGahn’s threats to quit are as pathetic as I expected when the stories first came out, and the NYT story is as misleadingly flattering as I expected.)

It’s at that March 2018 meeting where McGahn admitted his real motivation: he envisioned himself as an esteemed judicial ideologue and not a historic hack.

McGahn also had made clear to the President that the White House Counsel’s Office should not be involved in any effort to press the issue of conflicts.578 McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not ” Saturday Night Massacre Bork.”579

Finally, after being fired himself for cooperating with Mueller (and, probably, for seeding so many self-serving stories with the NYT), Mueller interviewed McGahn once more, this February, one of the very last interviews that appears in the report. It appears they were cleaning up two discrepancies: the dates of the calls (it appears McGahn may have said one happened later than it did to separate it from coverage that Trump was under investigation for obstruction), and to get McGahn to explain why he didn’t tell Donaldson or Priebus and Bannon that he had been ordered to get Rosenstein to fire Mueller.

Incidentally, while self-proclaimed Mueller investigation hero McGahn appears to have been happy to tell Mueller’s team that Trump’s claims that Mueller had a conflict, he never told the press, not even in any of those seeded stories to the NYT.

There’s one detail about the Mueller report of particular interest, however, given the subpoena to testify. That note Donaldson took, recording that “McGahn told the President that his ‘biggest exposure’ was not his act of firing Comey but his ‘other contacts’ and ‘calls,’ and his ‘ask re: Flynn”?

Nowhere is his explanation for that comment cited to an interview report from him.

Which brings us to the subpoena, which (as I said) I suspect is a friendly one.

McGahn is almost certainly one of the people who sourced stories (including with his favorite reporters at the NYT) saying they were worried about all the damning things they said exposed in the Mueller Report. In McGahn’s case, he was right to be worried. The other day, Politico revealed that Trump replaced Jones Day as his 2020 campaign firm, in a move that was attributed to cost-cutting but that Politico’s sources say is retaliation not just for McGahn’s cooperation with Mueller but also a story (written by McGahn’s favorite NYT journos the same day he last interviewed with Mueller) on Jared Kushner’s inappropriate security clearance.

[C]lose Trump advisers say the decision also stems from disappointment with the White House’s former top attorney and current Jones Day partner, Don McGahn, whose behavior has irked the president and some of his family members.

Taking business away from Jones Day is payback, these advisers say, for McGahn’s soured relationship with the Trump family and a handful articles in high-profile newspapers that the family blames, unfairly or not, on the former White House counsel.

“Why in the world would you want to put your enemy on the payroll?” said one adviser close to the White House. “They do not want to reward his firm. Trump arrived at that point long ago, but the security clearance memo stories put a fine point on it.”

One February 2019 story, in particular, caught the White House’s attention, when The New York Times reported that the president ordered John Kelly, his chief of staff at the time, to grant a security clearance to Jared Kushner. Kelly had written an internal memo on it, according to the Times. That fact was closely held inside the White House, and few officials other than Kelly and McGahn knew, say two close White House advisers — and the administration blamed McGahn for the leak.

One other thing HJC is asking for are “communications with the Executive Office of the President regarding your response to the March 4, 2019 document request” by HJC.

Which, I’m sure they have reason to know, reflect White House opposition to his public testimony.

Don McGahn apparently imagined working for a corrupt asshole like Trump would get him named to the Supreme Court.

Instead, his firm has a lost a very lucrative client. He appears to be upping the ante by further distancing himself from Trump’s corruption. That may get ugly, because Don McGahn knows where a whole lot of Donald Trump’s bodies are buried. And given that McGahn, not Trump, is the one who packed the courts, the Republicans may have really divided loyalties over this fight.

Update: The White House is fighting McGahn’s subpoena.

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82 replies
  1. OldTulsaDude says:

    It is high time for patriotic Republicans to call out the Republican oligarchy that is attempting to destroy American for its own profit. It is past time for Democrats to draw a line in the sand.

    I just did a totally informal search for data on 4 key questions: single payer healthcare, taxes on the wealthy, taxes on corporations, and immigration. The results are astonishing. 70% favor single payer, 76% higher taxes on the rich, 67% favor higher corporate taxes, and 75% think immigration is a good thing.

    There should be no hesitation to do what is necessary. The country sides with progress and change.

    • Rugger9 says:

      No such thing as a “patriotic” Republican because between Faux and Limbaugh, et al, the TEA Party after St Ronnie announced his candidacy in Philadelphia MS (signaling the new Southern Strategy) the pragmatic small-c conservatives were ruthlessly drummed out of the party. The MAGA tribe is who they are and what they vote for which is why even though Sasse, Collins, Ernst, Rubio, etc., may grumble from time to time they will not vote against Kaiser Quisling.

      They still fear primaries more than history.

      • BobCon says:

        McGahn is different from most in the Trump orbit because he has money, no elected office in sight, and the ability to work without needing to kiss Trump’s ring.

        I’m trying to think who else fits that profile. Tillerson is one. Maybe Corker and Mattis. It’s not a long list.

        • Jockobadger says:

          I really like the sound of this:

          Don McGahn knows where a whole lot of Donald Trump’s bodies are buried.

          I wonder what the chances are that McGahn will not only get pissed off enough about cutting out his law firm, but that he’ll suddenly realize that he’s also the savior of the GOP. He doesn’t seem to be as compromised as most of this bunch. Damn it, optimism’s creeping in again.

          • MattyG says:

            Not too long from now those loudly and publicly cut-off and shunned by the Tangerine Moussolini will thank their lucky stars they were deemd so intollerably unfit to attend to their ruler…

        • blueridge says:

          I wonder what Mattis thinks of the administration, and why we haven’t heard a single word (at least of which I am aware) from him since he resigned. I’m not a sophisticated political observer, but it would seem a very powerful message if Mattis believes Trump to be inept/corrupt and went public with his views.

  2. earlofhuntingdon says:

    Don McGahn apparently imagined working for a corrupt asshole like Trump would get him named to the Supreme Court.

    There’s one born every minute. One of the Don’s few skills is the ability to spot them a mile away. Pity he never looks in the mirror.

  3. earlofhuntingdon says:

    Instead, his firm has a lost a very lucrative client.

    Assumes that Trump pays his bills. Clients come and go all the time. But pissing off Jones Day so publicly is not a good idea. Reputation is everything. Jones Day and its patrons can fight back in ways Trump would never see coming. Then he’d be left with the Rudy and Jay Show.

  4. Ollie says:

    Wow. So WH has just put out that they are blocking the request for the McGahn to testify. Wow. Who the fuck do they think they are?/?? I know! Like my old neighbor who is a retired Sheriff from CA. He is a know it all and worships the ground Trump shits on. So we’re chatting up (I’m gardening) and he says out of no where: “Yeah we have to get rid of the crooked politicians (claim: 90% are crooked) and then says they’re all Democrats. WTF? I look at him and tell him not to be such a moron………and he flips out! I started laughing and told him to go to a trump rally. I told him well at least Manafort is in prison now.

    Hey Marcy: LOL reading your needing an adjustment over the Mueller report. Thank god for yoga. I’m HATING the new twitter especially since old Jack went and met w/the WH asshole. Anyhow, really, really great coverage lately. Many thanks! peace and love

  5. arbusto says:

    Hope the HJC et al don’t expect a reacharound from McGahn while he’s pumping away at them with 150 grit petroleum jelly.

  6. JD12 says:

    Is McGahn fighting the subpoena with the WH or are they doing that independently? And is there anything to this or is it just a stall tactic?

  7. RWood says:

    Somebody walked into the room thinking he was a whistleblower and walked out with a sword hanging over his head. If that “friendly subpoena” was the carrot, I wonder what the stick is?

    I view McGahn as being a lot like Rosenstein or Cohen. They’re survivors. From now on McGahn going to do what’s best for McGahn.

    No wonder Drump is rage-tweeting.

  8. Savage Librarian says:

    Ooooh, things are starting to get fun now! Any chance you have anything more to say about that 2nd interesting topic you mentioned?

    “34. Communications relating to United States imposed sanctions or potential sanctions against the Russian Federation from June 16, 2015 to October 18, 2018, including but not limited to the sanctions imposed pursuant to the Magnitsky Act.”

  9. Jockobadger says:

    Just saw the update – Great piece Marcy – Thanks!

    So the WH is set to fight the subpoena for McGahn’s testimony and his documents. No surprise there, but isn’t he just a regular citizen now? He, McGahn, can fight it if he wants to, but can the WH somehow compel him to not comply, even if he decides it’s in his best interest? I’m hoping he pulls a Mickey Medallions and goes in and squeals like a stuck one.

  10. Savage Librarian says:

    And now for a little pep talk poem for all the EW faithful:

    “YUP”

    Different orbits, different planes,
    Different losses, different gains.

    But we still have things that align:
    The grit to face a steep incline,
    The novel way we toe the line,
    Spit and polish, a bit of shine.

    Different rhythms, different tones,
    Different voices, different zones.

    But we have things that are the same:
    Arrows yearning to take aim,
    Planting stakes to make a claim,
    Tracking back the way we came.

    Different times, different space,
    Different rhymes , different grace.

    But we have things that calibrate:
    Hesitation to take the bait,
    Losing patience while we wait,
    Hopeful interest in our fate.

    Different minds, different smarts,
    Different kinds, different hearts.

    But we have things that measure up:
    Ample fuel on which to sup,
    Sentiments to fill the cup,
    All the reasons to say “yup”.

  11. ken melvin says:

    Be careful what you wish for: Mitch says he hopes to be remembered for stuffing the courts. He and McGahn will long be remembered for the most corrupt courts in a century stuffed not with judges but with ideologues.

    • earlofhuntingdon says:

      Counter stuff. It’s not as if there isn’t enough work for them to do. Federal courts are swamped. A few votes here and there – as the Ruskies noted in the 2016 general – can balance things out in fruitful ways.

  12. earlofhuntingdon says:

    An aide told Trump there was going to be an egg roll at the White House. He ordered lo mein, instead.

  13. Eureka says:

    OT: thank you Marcy for publicizing and signing the statement of support for Julia Angwin. I miss her regular voice, and have been awaiting and watching for The Markup solely because of her; bye to that (and also, sadly, to all of the work she could have been doing elsewhere in the meantime while instead getting this started):

    Amie Stepanovich: “Nearly 50 people – leaders across the tech sector – standing in support of @JuliaAngwin (and more coming!) (links to Medium post with signatories)”
    https://twitter.com/astepanovich/status/1120767514345005056

    Sapna Maheshwari: “The Markup, an eagerly anticipated news site dedicated to scrutinizing technology and its effects on society, fired its editor-in-chief @JuliaAngwin via email last night. Big surprise for everyone including staff. We’ll be updating our story here: (links to NYT story)”
    https://twitter.com/sapna/status/1120695592529874945

  14. Kokuanani says:

    Slightly OT: I’m wondering why nothing’s been written — or at least I haven’t seen anything — about Rosenstein and the other dude standing mutely behind Barr in the latest. Have NO reporters tried to contact Rosenstein? Does NO ONE ask how morale is at the Justice Department is with those at the “top of the pyramid” demonstrating such rank mendacity?

    Just wondering.

  15. JKSF says:

    Article III of the Articles of Impeachment against Nixon was Contempt Of Congress.

    This is where we are heading.

  16. horses says:

    It’s worse than that. Don wants things.

    Lawyering is only his day gig. He does this political stuff to be able to afford expensive guitars. Playing in a classic rock band, he has to be able to afford what he really cares about.

    A mediocre clownburst Gibson Les Paul from 1992 is worth about $2,000. I’ve seen photos of him playing one of those.

    Are you ready for that, folks? American democracy got sold out to Donald Fucking Trump because a prime mover couldn’t otherwise afford a crappy guitar with a bad neck joint so his dumb ass could sound right playing Journey songs in a bar?

    • William Bennett says:

      That may just be the harshest put down I’ve ever been privileged to witness. Having that kind of cash available and wasting it on a ’90s era (one can’t use the word ‘vintage’ in this context) LP? Does he also collect K-Cars? Proud owner of a classic AMC Pacer?

      Obviously wealth is wasted on the rich.

      • bmaz says:

        Of all the issues I have with McGahn, and there are many, what kind of axe he plays, or has bought over the years, is not one of them. This is bogus talk. Come on, can discussion here please not be that petty and stupid?

        • earlofhuntingdon says:

          Yep. If you insist on evaluating people by the classic guitars they value, a) don’t be afraid to admit you need help, and b) spend some time at Santa Cruz Guitars.

  17. Leila512 says:

    Somewhat O/T, but since IANAL, can someone inform me whether it’s true that a Contempt of Congress charge would have to be enforced by the AG? In which case, nothing’s going to happen if one’s filed? Thanks in advance

    • harpie says:

      I also am not a lawyer, but I think the answer is that DoJ has no authority over how Congress conducts it’s duties.
      Elizabeth Delavega wrote a twitter thread about impeachment, here:
      https://twitter.com/Delavegalaw/status/1120814474938732544
      3:19 PM – 23 Apr 2019

      HOW to start official impeachment proceedings yet preserve the measured, nonpartisan gravity the issue merits? As in Watergate, before drafting articles of impeachment, the House authorizes the Judiciary Committee to open an inquiry into whether grounds for impeachment exist. 1/ […] / As the work proceeds, if the Executive Branch encourages people not to cooperate or respond to congressional subpoenas, Congress’s legal position is solid. There is no reason to delay a House Res. to begin a solemn, dignified and focused Judiciary Committee process at this point. / […]

      • Leila512 says:

        Thank you, but that’s not my Q. I was referring to whether it would be the AG who would have to enforce Contempt charges filed for the failure of a subpoenaed witness to appear, not to Impeachment proceedings.
        Would appreciate any lawyers here to respond…

      • harpie says:

        I’m going to read this from the Congressional Research Service:

        Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure
        Todd Garvey, Legislative Attorney; May 12, 2017
        https://fas.org/sgp/crs/misc/RL34097.pdf

        [From the summary][…] Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena. […]

    • Lydian says:

      Hi Jenny – another one I’ve heard is Crime that Pays is Crime that Stays, although I’m uncertain of context. I think it might refer to white collar crime, albeit in a financial setting (?). I’m uncertain of its genesis.

  18. Tom says:

    If and when Robert Mueller appears to testify before Congress, I hope someone will ask him if he can explain exactly what he meant when he wrote in the Introduction to Volume I (p. 9) of his report that “the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome.” There are obvious reasons why Putin might think he’d be in a better position dealing with Trump in the White House rather than Clinton; e.g., Trump’s lack of political experience, lack of knowledge of foreign affairs, and the effect of his divisive rhetoric on the U.S. populace. But I wonder if there are other factors beyond these that Mueller might be able to provide information about.

    • Canajan, eh says:

      It’s all about the Magnitsky Act and getting the sanctions on all of Putin’s cronies lifted. Read “Red Notice” by Bill Browder, the guy KQ was considering handing over to Putin at the Helsinki summit. Frightening.

      • Rayne says:

        That’s a narrow perspective. There was a lot more potential benefit to obstructing a Clinton presidency including:
        — termination of other sanctions place on Russia during the Obama administration;
        — ending the sudden glut of oil in the market from Iran’s market reentry after the signing of P5 agreement;
        — unrestrained development of Russian arctic oil reserves;
        — pull back of NATO growth and policing;
        — less obstruction of Russian expansion into former USSR satellite states;
        for starters, in addition to ending the Magnitsky Act and sanctions directly related to the Act’s inception.

  19. earlofhuntingdon says:

    S. Ct. to decide whether citizenship question remains in census questionnaire. [https://www.buzzfeednews.com/article/zoetillman/census-2020-citizenship-supreme-court]

    The majority on the Court has indicated it will vote to keep the question on the form, citing the need to enforce the Voting Rights Act. That would be a special revisionist history “Fuck You” from the radical right members on the Court.

    When the Court’s radical right needs a new law or a reason to stop enforcing an old one, it invents it. It claims for it, however, an ancient originalist provenance, even though the text of the change was only recently discovered when cleaning the Temple. Like Social Security, the radical right has wanted to undo the VRA for generations. So, in the manner of Mark Anthony, the S.Ct. majority intends to both praise and bury the VRA, but with less persuasive eloquence.

    The VRA was a cornerstone of Lyndon Johnson’s 1960s civil rights legislation. It was an era when Martin Luther King began his novel and daring joining of civil rights to economic and social justice rights. Jim Crow was the norm, in an era filled with cultural and social change, mass democracy, mass voter disenfranchisement, and a mass build-up in Vietnam. (It was about to be an era when military draftees were predominantly poor young men of color.) Southern sheriffs wielded water cannon and lined the route to the voting booth with an avenue of attack dogs and state police cars. The VRA was intended to change that and did.

    Today, however, the VRA is rarely enforced, not because it isn’t needed – the 2016 Georgia election fiasco demonstrates that – but because radical right ideologues don’t like it. I don’t think the Trump regime has ever enforced it. And the S.Ct. – despite its newfound concern – gutted it. It did that, in part, by denying the existence of persistent well-documented programs to prevent people of color from voting. Widespread GOP-dominated legislative gerrymandering and Jim Crow-era felon disenfranchisement laws are among them.

    But the VRA still lives. So, the Court would frustrate its purpose by keeping the citizenship question on the census form. Expert opinion, however, is unanimous that 1) citizenship information is already reliably obtained through other means, 2) the question would lead to an undercount of people of color, and 3) an over-count of white, predominantly GOP voters. Those consequences run parallel with others: Trump’s underfunding of the census; his mismanagement of the Bureau which runs it, leading to the wholesale loss of its leadership and technical staff, and its refusal to replace them.

    The GOP’s Stop-the-Vote campaign could only be aided and abetted by the S.Ct. voting to keep Wilbur Ross and Stephen Miller’s citizenship question on the census form. This is how democracy dies.

    • orionATL says:

      earl of h –

      thank you for this very informative background on the upcoming s.ct. decision.

      or should I say “the upcoming formalization of a decision” previously stored in each of the minds of the Christian rightwing of our supreme court.

    • harpie says:

      EoH: “I don’t think the Trump regime has ever enforced it.”

      Per Ari Berman, you are correct:
      https://twitter.com/AriBerman/status/1120714625895600129
      8:42 AM – 23 Apr 2019

      My quick takeaway from oral arguments in census case: same conservative justices who gutted Voting Rights Act now claim citizenship question needed to better enforce Voting Rights Act.
      What a farce.
      5-4 decision upholding citizenship q would have devastating impact on democracy
      It’s complete farce Trump admin argues citizenship question on 2020 census needed to enforce Voting Rights Act.
      Trump DOJ hasn’t filed single lawsuit to enforce VRA & has strongly supported GOP efforts to make it harder to vote
      Census citizenship question would most harm communities of color that Voting Rights Act supposed to protect, by leading to undercount of Latinos, other minorities & shifting economic/political power to whiter & more Republican areas

    • Herringbone says:

      Seems to me that a massive, organized refusal to answer any questions about citizenship on the census could have a lot of appeal.

        • earlofhuntingdon says:

          Just be aware that engaging in civil disobedience carries a cost. The key to how much is suggested by the colonial-era quote about hanging together to achieve independence or being hanged separately for rebellion. You never know which it will be until you know.

          Conducting the census every ten years is a constitutional, not statutory requirement. Answering census questions is legally required. Not answering them can lead to a fine, answering falsely can lead to a bigger fine.

          • Herringbone says:

            I agree—no one should do any sort of civil disobedience who isn’t ready to pay a penalty. But as far as I can tell, the fine for refusal to answer a census question is $100, and I’m guessing that there’s also some administrative wiggle room before it comes to that point (i.e., the Census would send around a person to get the answer, would have to send out a notice in case you mistakenly skipped that question, would have to provide an opportunity for appeal, etc.).

            I wouldn’t advocate anyone answering falsely, since presumably only citizens, for whom deportation wasn’t a potential penalty, would be engaging in this act of disobedience, and it would make no sense for citizens to claim to be non-citizens.

            I think the more serious downside is the incentive it gives scofflaws to avoid their civic duty to answer the census, not to mention the conspiracy theorists who think the census is evil. I would hope limiting the refusal to a single question—and insisting people be ready to pay the fine—would minimize the damage to the census as an institution.

            On the upside, I see this as a means to harness the power of “clicktivism”—virtual/social media activism, which is usually pretty useless—in a real-world setting. And as a means to move us toward the participation threshold that Ellen Chenoweth cites for a successful nonviolent people’s movement, which she claims is 5% of the population.

            (For more on Ellen Chenoweth, umm . . . Google her. I’m leery of putting up a link around here.)

            • Herringbone says:

              That’s *Erica* Chenoweth, who researches popular movements and nonviolence. My apologies for anyone who Googled and found Ellen Chenoweth, the prominent casting director.

          • P J Evans says:

            Not responding to the census at all is far more serious than not answering that question. But, as the data is restricted-access for 72 years (they release statistical information only until then), the government should be asked to detail how they know who didn’t answer that one, and why it matters that much.
            (Note that this was on the census in the past – 1900 through 1940, at least, and that AFAIK no one was ever charged for not answering – it was assumed that you were a citizen unless you answered otherwise, and they did ask, at least some years, when you came/were naturalized. – yes, I’ve read a lot of census pages, in the course of genealogy. It’s a major data source, though not all that reliable.)

    • earlofhuntingdon says:

      Timely twt from Adam Serwer. He’s referring to a Trump twt lauding the S.Ct.’s decision to take up the census form citizenship question case (because he thinks his two appointees will force the vote in his favor) [https://twitter.com/AdamSerwer/status/1121077510517686273]:

      The best part about this tweet is gonna be when Roberts pretends not to have seen it and insists the citizenship question is important to the voting rights act, a law he has bitterly hated since he was in his 20s.

      • harpie says:

        Serwer links to an article he wrote in February, 2013 [bold in original]:
        Chief Justice Roberts’ Long War Against the Voting Rights Act
        Roberts has been a critic of the Voting Rights Act for 30 years. Now he will help decide whether the law’s most important section lives or dies.
        https://www.motherjones.com/politics/2013/02/john-roberts-long-war-against-voting-rights-act/

        […] Memos that Roberts wrote as a lawyer in President Reagan’s Justice Department during the 1980s show that he was deeply involved in efforts to curtail the effectiveness of the Voting Rights Act, the hard-won landmark 1965 law that is intended to ensure all Americans can vote. Roberts’ anti-VRA efforts during the 1980s ultimately failed. But on Wednesday, when the Supreme Court hears oral arguments in Shelby County v. Holder, he’ll get another chance to gut the law. Roberts’ history suggests a crucial part of the VRA may not survive the rematch. […]

        Serwer was right.

    • Glen Dudek says:

      The commentary I’ve seen on the SCOTUS review of the census question focused on Ross’s use of the VRA as a justification. IANAL, but as I understand it, Judge Furman’s decision relied on at least 4 distinct reasons why the census question violated the APA or other statutes, only one of which was Ross’s pretextual use of the VRA as justification. The other violations (relying on direct inquiries rather than administrative records, ignoring other means to collect citizenship data that would be more effective and less costly, failure to follow statutory requirement to address the change at least 3 years before the census) would likely still be sufficient to uphold Judge Furman’s ruling, would they not?

        • Glen Dudek says:

          Sorry to be unclear, I will go find the SCOTUS briefs/transcripts from yesterday and read them to understand the full scope of the arguments.

          I just can’t understand how SCOTUS can justify reversing Judge Furman’s original ruling to block the addition of this census question based on his conclusions that the process for adding the question violated the APA as well as 141(f)(1) reporting requirements. For reference, Judge Furman’s ruling can be found here: https://apps.npr.org/documents/document.html?id=5684706-Jan-15-2019-Ruling-by-U-S-District-Judge-Jesse The APA in particular has been a key blocker for many of this administration’s more egregious and inept attempts to enact destructive policies.

          I suppose I shouldn’t be so naive about how SCOTUS might justify any ruling, esp. since Gore v Bush emphasized how nakedly political the court can be.

      • earlofhuntingdon says:

        Scotus is not limited to the lower court’s reasoning. It can and often does invent its own. It also accepts very few appeals. If it wanted to affirm the lower court, the most efficient way would have been to deny the appeal.

        The conservative majority appears to be looking for reasons to overturn the circuit court ruling. But for this majority, suggesting its purpose includes supporting enforcement of the VRA is outright snark.

        • Maestro says:

          I don’t think that’s an entirely accurate statement of appellate law. Matters of law are generally reviewed de novo, where the higher court conducts its own independent review and interpretation of the applicable law and is unbound by the lower court’s reasoning. Other areas are reviewed for abuse of discretion, meaning that unless the lower court’s holding is completely unjustified by any reasonable interpretation of the facts, its conclusion must stand. Lastly, appellate courts are generally bound by the lower court’s finding of facts and cannot disturb those findings unless they are completely unsupported by the evidence.

          So the problem here for the appellants would seem to be the lower court’s finding of fact and what those findings mean under the Administrative Procedures Act. The APA requires that when an executive branch agency takes an administrative action (like here making a change to the process of the census), they have to justify that act by establishing an appropriate underlying and factual record to ensure the act is being taken for a legitimate purpose and not in an arbitrary or capricious fashion.

          The lower court made findings of fact that the citizenship question proposal was not based on the stated reason but rather that the stated reason was pretextual. Those factual findings are not supposed to be disturbed on appeal. Therefore, based on the factual record developed by the lower court, there would seem to be no way for SCOTUS to avoid finding that the citizenship question violated the APA.

          Based on how oral argument went, it seems as though the conservative bloc will get around this by simply discarding the evidence establishing that the Commerce Department’s stated reasoning was pretextual and will simply accept it as true. They aren’t supposed to do that because even if you disagree with the lower court’s interpretation of the facts, the facts still are what they are. Moreover, if they believe the lower court’s finding of facts are unsupported by the evidence, they aren’t supposed to just substitute their own facts—they’re supposed to send the case back to the lower court for further fact-finding. Appellate courts are by definition not able to conduct fact-finding, but SCOTUS seems poised to do so anyway.

          So I definitely agree that SCOTUS seems poised to overturn the lower court, but that in doing so they’re going to violate multiple established principles of appellate law.

          • earlofhuntingdon says:

            I’ve got a name (but it’s not movin’ me down the highway), it’s Bush v. Gore.

          • Glen Dudek says:

            Thanks, Maestro, this is what I believed to be true about appellate law, but stated in much more detail and clarity than I could muster.

  20. Jenny says:

    McGahn talked to Mueller with no objection from the WH.
    Congress wants McGahn to testify.
    McGahn’s statements are public. Now WH waving the executive privilege flag.
    McGahn no longer in the WH, back to private practice.

    How can executive privilege apply to McGahn considering he’s no longer WH lawyer?

    • pjb says:

      I don’t know (I suspect only matters he was in the WH at the time of the events in question) but I have a related question. Why doesn’t Nadler start by subpoenaing Corey L to testify about Trump’s request that he get Sessions to reassert control and kneecap the Mueller investigation? Corey is a total asshole but he was never an executive branch employee so presumably there’s not even a hint of plausible executive privilege claim available.

    • HRHTish says:

      Agreed. Since McGahn spoke with Mueller’s team, and the results of those talks are now generally public, how can a claim of executive privilege even be made? IANAL, obviously.

  21. Leading Edge Boomer says:

    At another forum I suggested that a subpoena was unnecessary, that McGahn could do the right thing and testify before Congressional committees voluntarily. How could Trump prevent that? Seems like McGahn might be so inclined. A responder pointed out that a subpoena negates any non-disclosure agreement that McGahn may have signed earlier. So I think that it is indeed a “friendly” subpoena.

    • Yohei72 says:

      The White House is trying to change the meaning of “executive privilege” to “No one can tell you anything we don’t want them to.”

  22. Badger Robert says:

    It is definitely weird that McGahn, and arch conservative and almost a libertarian, is the one who saw he wanted to survive in a post Trump world. But McGahn may be right. Trump is essentially and autocrat and a statist.
    William Sherman had great empathy for the southerners, and was racist based on his experience with the poor state of black preparedness for civic life under slavery. Nonetheless Sherman’s armies in Mississippi, Georgia and South Carolina, completed the destruction of slavery. Jim Crow and debt serfdom followed, but the buying and selling of human beings ended.

    • earlofhuntingdon says:

      Not a big distinction there after Reconstruction ended.

      The formal end to slavery relieved the plantation owner of the capital cost of owning and maintaining slaves. In many instances, sharecroppers assumed the role of slaves and cost no more.

      One element of Jim Crow was the discriminatory enforcement of the criminal law. Prisoners, overwhelmingly African-American, are not protected by prohibitions against “involuntary servitude” – their punishment is inherently involuntary. A legal loophole allowed the creation of an army of unpaid, largely African-American laborers.

      Prisons, public and private alike, still provide a large force of underpaid laborers for private businesses. They sometimes withdraw routine “benefits” for those who refuse to work for those private businesses. And they have taken to charging prisoners for their upkeep and other costs associated with imprisonment, which has the hallmark of a debtor’s prison.

  23. Badger Robert says:

    But the episode reveals that Trump hates lawyers and has not dealt with many lawyers that had independent careers and independent practices. He has always been able to find the Mike Cohen type people who would do what was asked if the reward was power. The only people he dealt with were probably criminal law lawyers, who were afraid of their clients.

  24. Badger Robert says:

    When McGahn testifies, his story seems to be that not only did Trump ask M to see to it that DOJ fired Mueller, but also that McGahn state in writing that Trump did not ask him to do that. Those are hard facts to explain away with respect to guilty knowledge and corrupt intent. Those facts, and getting Cohen to make the hush money payment to postpone disclosure of at least one affair, and probably two, will be difficult to explain. The hush money payments as stand alone crimes are not as serious, but as impeachment of any denials Trump could claim, they are very effective.

  25. Tech Support says:

    So how does all this change the odds that McGahn is the author of the “Resistance” NYT op-ed? The piece came out on September 5th, one week after Trump tweeted out McGahn’s impending departure.

  26. Taxidermist says:

    McGahn’s family is mobster/mafia, going back to the 80’s mixed up with Trump. He can never be any real cooperator or truthfully and fully answer questions to the best of his knowledge. This media attention he’s drumming up as some sort of hero is utter bullshit. And if he’s painting himself as a snitch, I wonder what the hell he is seeking to gain? Hero status is not a snitch end game.
    Sorry for the rant, I despise McGahn for the thug he is. And Thank you Marcy for this important, excellent article!

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