Last week, a new President Trump-related lawyer controversy popped into the headlines. This time, it involves former White House counsel Don McGahn and whether executive privilege will allow President Trump to stop McGahn from testifying before Congress about obstruction.
Regardless of how you lean politically, the primetime Trump lawyer drama has certainly been educational for attorneys watching the news cycle. From Cohen getting raided, to Giuliani being Giuliani, to the arc of the Avenatti story, to the Mueller report, and now Don McGahn, legal ethical issues have never been more visible in the media. Below, you can read about the issues facing former White House counsel McGahn, as an attorney being called to testify by Congress in an inquiry regarding President Trump.
Waiving Executive Privilege
One of the big headlines is the fact that President Trump has stated that he plans to fight the subpoena and executive privilege is expected to be the main issue cited for quashing it. Many of the subjects listed in the subpoena hit on the biggest and most controversial political stories we've seen during the Trump presidency, including the investigation into Michael Flynn, James Comey's firing, Jeff Session's recusal, Roger Stone, the "Trump Tower meeting" and so much more.
Notably though, whether executive privilege would apply to McGahn is not quite settled. For example, McGahn already provided testimony during the Mueller probe, leading many to believe that the White House waived executive privilege when McGahn was permitted to participate, or when the Mueller report was released. Some say though, these claims are rather weak.
Controlling the Former Counsel
Significantly, McGahn is no longer employed by the White House, and that could result in him voluntarily testifying. His status as a former employee also limits the White House’s ability to restrict McGahn if he does choose to testify. One commentator explained that McGahn is likely to comply with the subpoena because his other option might be jail time. Fortunately, we won’t have to wait to long to find out whether McGahn shows up, answers questions, or just asserts executive privilege when he gets there. He was called to appear on May 21.