The Legal Wrangling Over Subpoenas
LULU GARCIA-NAVARRO, HOST:
The U.S. House of Representatives is letting fly the subpoenas - for testimony from former White House counsel Don McGahn, for records from President Trump's accounting firm and for a civil rights division official on the addition of a citizenship question to the census. The president's response...
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PRESIDENT DONALD TRUMP: We're fighting all the subpoenas. Look. These aren't, like, impartial people. The Democrats are trying to win 2020.
GARCIA-NAVARRO: So what happens next? To help us consider that, we're joined by Danny Cevallos. He's a legal analyst for NBC and MSNBC and co-founder of the law firm Cevallos & Wong. Thanks for coming on.
DANNY CEVALLOS: Thank you for having me.
GARCIA-NAVARRO: So I should start by saying that the president wanted to fight all the subpoenas. But apparently he has caved, at least on one of them. The White House will allow former security clearance official Carl Kline to sit down for a voluntary transcribed interview. How should we understand that move?
CEVALLOS: It's interesting because administrations in the past have either flatly refused or at least imposed their own conditions on having executive branch officials testify or provide documents. History is full of examples of the executive branch resisting these subpoenas or these requests and resisting contempt charges that are brought afterwards. And ultimately, Congress relies on the Department of Justice, which is part of the executive branch, to prosecute or even bring these contempt charges to a grand jury.
GARCIA-NAVARRO: So where does that leave all the other subpoenas though? I mean, obviously this was a high-profile one, but it's one of many.
CEVALLOS: It's one of many subpoenas. And frankly, I'm surprised the Trump administration is willing to play ball like this. They know from history that time is on the side of the executive branch. And if they really want to oppose these subpoenas and take it to the courts, if enough time passes, there may be a new Congress. And those congressional subpoenas only last as long as the current Congress.
The second thing, too, is that if Congress wants to even hold executive branch officials in contempt, the law says that the DOJ or the executive branch, the U.S. attorney, shall present the case to a grand jury. But history also has shown us that that word, shall, is largely meaningless. The executive branch simply can refuse to prosecute people in their own executive branch for criminal contempt for defying a Congressional subpoena. So Congress needs the cooperation of the executive branch. The executive branch doesn't necessarily need the cooperation of Congress.
GARCIA-NAVARRO: You know, there's been words like constitutional crisis bandied about, also that this is somehow unprecedented. But you're putting this into a historical perspective and saying, actually, there is a long history of the White House being resistant to these kinds of subpoenas from Congress.
CEVALLOS: It doesn't happen often, but it's definitely happened. It happened to Harriet Miers in the Bush administration. It happened to Eric Holder in the Obama administration. But history also shows us that in virtually none of these occasions does the executive branch or the DOJ prosecute these cases. So it's really Congress' right but without any real remedy.
GARCIA-NAVARRO: The wider context of this, of course, is that Congress has the right of oversight. It's written into the Constitution. If Trump succeeds in fighting off many of these subpoenas, what does it mean for the power of congressional oversight?
CEVALLOS: It means probably the same thing it's meant for many decades about the power of congressional oversight over the executive branch, which is it's largely undefined. Going back to the Nixon case, which first gave us a real definition of executive power or executive privilege to resist a congressional subpoena, all that really taught us is that there is an executive privilege, but it's not absolute. That leaves a lot of gray area and a lot of area for the courts to flesh out.
And that's why these cases often end in cooperation, as we're already seeing in just the last few hours or days, that - we probably will see even more cooperation in the coming hours and days from the executive branch and from the White House, which - I mean, it's in their interest to avoid a prolonged battle. But this is a White House that has shown that normally, it's not afraid of a battle. So it's rather a surprise that they would capitulate on even this issue.
GARCIA-NAVARRO: Danny Cevallos is a legal analyst for NBC and MSNBC. Thank you so much.
CEVALLOS: Thank you.
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