On Thursday, following reports that President Donald Trump will claim executive privilege to prevent former White House Counsel Don McGahn from testifying to Congress about the attempt to fire special counsel Robert Mueller, CNN’s Chris Cuomo held a discussion on whether blocking McGahn’s testimony constitutes valid executive power.
Former Trump White House lawyer Jim Schultz told Cuomo that it does, noting that courts have often given deference to presidents on the matter. But former FBI Special Agent Asha Rangappa strongly disagreed.
“Chris, the executive privilege is a limited privilege to protect deliberations, policy deliberations, things concerning national security, that are purely outside of the purview of Congress. It’s a separation of powers issue,” said Rangappa.
“When you are talking about obstruction of justice, in which Congress has an interest in protecting, then that privilege no longer is something that belongs exclusively to some executive branch function. It’s potentially concealing evidence of a crime,” Rangappa continued. “And we know from U.S. v. Nixon that the privilege then doesn’t hold, and I think it would not hold even in the case where it is Congress that has oversight because of the specific fact that Congress has an interest in uncovering acts of obstruction.”
“I think that you are right that he has waived the privilege already, and I think a third thing here is that the White House has no leverage over McGahn,” continued Rangappa. “If he actually wants to voluntarily come in and testify, there’s pretty much nothing that the president can do. So I think that this is an uphill battle for the president.”
“And just to add, the president is equating — if he is saying he has already talked to Mueller, so now, you know, Congress doesn’t need him to do more, then he’s basically conceding that Congress is entitled to see all of the 302s which McGahn provided to the FBI,” Rangappa said. “If they’re equivalent, then that should just be handed over if McGahn isn’t going to testify.”