On Saturday, the New York Times published an expose on how White House Counsel and former Trump campaign counsel Don McGahn has been cooperating with the Mueller investigation and has given thirty hours of interviews. Yet, instead of being praised for his cooperation and transparency, Mr. McGahn's character is being attacked by the "Gray Lady" in its ongoing efforts to undermine President Trump.
The Wall Street Journal's editorial board responded, pointing out that Mr. McGahn could have only cooperated with President Trump's permission:
The thesis of the New York Times story is that Mr. McGahn cooperated in a way that could hurt Donald Trump in order to protect himself and because he doesn’t trust the President. This fits the media narrative that Mr. Trump is covering up his collusion with Russia and his obstruction of justice, and thus Mr. McGahn must be scrambling to save himself.
Yet lost in the resulting tempest is a crucial fact that appears to contradict this spin: Mr. Trump had to waive executive privilege for Mr. McGahn to cooperate with Mr. Mueller. . . . But as White House counsel Mr. McGahn represents the Presidency. He is a careful enough lawyer to advise Mr. Trump that agreeing to answer Mr. Mueller’s questions would waive executive privilege. And the Times reports that Mr. McGahn’s attorney, William Burck, said on the record that Mr. McGahn cooperated only after Mr. Trump waived any privilege claim.
Executive privilege is held by the chief executive - the President - and as with other legal privileges, only the holder of the privilege can waive it. Unlike President Clinton when investigated by Ken Starr or President Obama's administration when investigated by Congress, President Trump has nothing to hide and is cooperating with the Mueller investigation, despite its problems and failure to return any evidence of wrongdoing by the President or his campaign after over a year of investigation:
This isn’t what you’d expect if Mr. Trump is leading a coverup. . . . Yet when Mr. Trump doesn’t invoke privilege for his White House counsel, he gets no credit. . . . Keep in mind that Mr. Trump’s lawyers cooperated extensively with Mr. Mueller for months, turning over tens of thousands of documents—also without claiming executive privilege.
The Wall Street Journal's editorial board pointed to the heart of the problem in the Times' misleading report - the effort to portray the Trump White House as fractured. Mr. McGahn has been loyal to the President throughout his cooperation with the Mueller investigation:
Mr. McGahn has been one of the President’s most effective advisers—notably on judicial nominations. But some in and outside the White House resent his influence and might want to portray him as undermining Mr. Trump. The bottom line is that readers should remain skeptical about what is reported about Mr. Mueller’s probe, waiting to see the evidence he actually produces.
To see the double standard here, one must only imagine what the news stories would be were the political parties reversed. The mainstream media would lament the waste of taxpayer dollars spent on a lengthy, unnecessary investigation by the Republicans and either applaud a Democratic administration for cooperating with it for the good of the country or defend the administration for not cooperating.
This week in the Daily Caller, RNLA Vice President for Election Education David Warrington submitted an op-ed reviewing this week's Senate hearing with Attorney General Jeff Sessions. The article praises his testimony and offers a comparison to the former Obama Administration:
[Attorney General] Sessions stood his ground and answered every question asked regardless of how ridiculous the question . . . The only questions he refused to answer were ones pertaining to private conversations he had with the President. In refusing to detail those conversations, he acted properly. . . Sessions’ refusal to answer on the basis that President Trump may wish to assert executive privilege over the conversation in question, conforms with longstanding practice at the Department of Justice, as well as every other department or agency of the executive branch. Democrats were aghast at this, and Senator Martin Heinrich (NM) even accused him of obstructing a congressional investigation. Yet legal privileges, like the attorney-client privilege, marital privilege, and executive privilege, are important protections for the rule of law, not an obstruction of the process. . .
Furthermore, as it is the President who holds the privilege, neither Sessions nor any other executive branch official, has the authority to waive that privilege. Every President, including Obama, understood this . . . Democrats on the Committee, and their allies, must have forgotten that for eight years during the Obama administration, they championed the independence of the executive branch, executive privilege, the confidentiality of executive branch communications, and the power of the executive branch to resist congressional investigations. . . The Obama administration broadly resisted congressional investigations into serious crimes and misdeeds for which there was actual evidence (unlike the assertion of Trump’s collusion with Russia).
Mr. Warrington went on to point out that President Obama’s DOJ did not turn over emails in the IRS investigation on targeting Tea Party organizations, invoked executive privilege on Operation Fast and Furious, and shielded Executive staff from participating in congressional investigations or blatantly ignored the calls of Congress. The article closed on this note:
Attorney General Sessions’ conduct has been above reproach, and the inquiries about him should be laid to rest, but Democrat Senators and the media continue “resisting” President Trump through false attacks on Sessions and others close to Trump. This not only damages the public discourse and undermines our system of representative government but, as Sessions pointed out during the hearing, it distracts the DOJ from legitimate problems facing the nation, such as the opioid epidemic and terrorism. Perhaps that is the Democrats’ true goal: if successful in damaging Sessions, they can prevent DOJ from carrying out its mission and thereby harm President Trump and Republicans in 2018 and 2020. . . The Democrats will continue to trade in detestable lies and secret innuendo in their attempt to effectuate the coup they seek in order to achieve the result they did not get at the ballot box. . . What today’s hearing demonstrated beyond any doubt is that Attorney General Sessions is an ethical man who has served his country honorably for many years.
This article was published as part of the Republican National Lawyers Association's regular weekly Op-Ed with the Daily Caller. To read Mr. Warrington's other article about Attorney General Sessions, please click here. We will bring you a summary of our next article next week.
