Don McGahn (Photo by Drew Angerer/Getty Images)
I have three competing theories about the House Democrats’ appetite for impeachment, and which one I subscribe to seems to depend on which side of the bed I wake up on in the morning. Like, from 30,000 feet, it’s clear that their plan is “stupid.” But as I drill down, it becomes more difficult to see what exactly motivates their ineffective meanderings. It’s like “dark energy.” We theorize that it’s there, because we can’t explain the movement of the cosmos without it. But we can’t see it, do not understand its nature, don’t know where it comes from, and hypothetically it doesn’t exist at all but we’re too stupid to know what’s really going on.
Here are my theories:
- Democrats, the real ones, want to do impeachment, and believe the only way is through these not-actually-impeachment hearings. The Trump administration blocks their attempts at gathering evidence, and the Democrats, ignorantly but earnestly, believe that the slow march through the federal courts will eventually get them the testimony they need to move public opinion and DINOs towards impeachment.
- Democrats do not want to do impeachment, know that the Trump administration will block them at every turn, and know that the court process does not move quickly enough to break Trump’s logjam. They want to look like they’re doing something, without actually doing anything, and the federal courts are the perfect patsy in their long-con of their base voters.
- Democrats exist in a state of perma-shock that Trump exists and Republicans don’t care that he exists. Every new act of obstruction and non-compliance honestly catches them by surprise. They’re unable to mentally process the reality of their situation, like a man slowly choking to death from smoke inhalation who doesn’t run because his smoke alarm hasn’t gone off. Unless Robert Mueller or Joe Biden or Mitch McConnell saves them, they’re all gonna die.
I think Democrats want me to believe they’re hopelessly ignorant, but trying, when the reality is that they can’t possibly be that stupid, which will lead to the result that we all die in a fire.
House Judiciary’s latest stratagem to compel Don McGahn to testify is a Rorschach test for how you personally believe the Democrats are screwing this up.
To set the stage: Former White House Counsel Don McGahn was an eyewitness to Donald Trump’s many, many attempts to obstruct justice. He essentially testified to all of it, under oath, to former special counsel Robert Mueller. He didn’t say “the president obstructed justice” (hold that thought) because he’s not a mouth-breathing idiot like most of the president’s employees. But he told Mueller, who eventually told the country, all of the evidence needed to make an obstruction case against Donald Trump.
The House subpoenaed McGahn to testify in front of them, and Donald Trump said “no.” Trump has no credible legal theory on which to block McGahn’s testimony. He doesn’t even really have a discredited legal theory to block McGahn’s testimony. He hasn’t even asserted executive privilege, and he can’t because he waived executive privilege by allowing McGahn to sit down with Mueller in the first place. I want to repeat this because the mainstream sources are really bothering about this point: DONALD TRUMP HAS NO AUTHORITY TO BLOCK MCGAHN’S TESTIMONY, AT ALL. Anybody who tells you he does is either an idiot, a grifter, or likely both.
Speaking of grifters, McGahn has decided to ignore the Congressional subpoena and go with his former-boss’s NON-THEORY of obstruction of a Congressional inquiry. This should not be surprising. McGahn is a weasel who “resisted” Trump’s effort to make him an accomplice to obstruction of justice not out of some deep moral or ethical principle, but out of pure self-preservation. Don McGahn is no hero. He’s a man adept at swimming through sewers without drowning. He was only in the sewer to promote an alleged attempted rapist to the Supreme Court, and having accomplished his mission, he is hiding out at Jones Day just waiting for the stink to get out of his clothes.
Confronted with McGahn’s unwillingness to comply with a Congressional subpoena, buttressed only by Trump’s legally useless directive that he do so, yesterday, the House Judiciary Committee sued to compel McGahn’s testimony. Here’s the complaint. I’m sure that lawyers can appreciate that, when faced with a person who refuses to follow the law, getting a court order to compel him to follow the law seems like the right thing to do.
There are a couple of obvious problems with this approach, however. First is that it doesn’t really take into account the fourth dimension: time. The House sued, so now the Trump administration gets to respond. You can bet they’ll take all the time possible before so doing. Then we’ll need the court, even on an expedited time frame, to rule. Then we’ll need an appeal. Then we’ll need an appeal from that appeal to the Supreme Court. Then we’ll need to see if the Supreme Court, emboldened by five conservatives who like to do Trump’s bidding, grants cert. Tic Tok on the clock, but the party don’t stop, Democrats. While you’re waiting on the McGahn saga to play out in court, Donald Trump is still the president and you are not any closer to impeaching him for his crimes.
The second problem is that all this legal maneuvering only gets McGahn in the chair. I’m assuming the Democrats will win this fight because, again, DONALD TRUMP HAS NO AUTHORITY TO BLOCK MCGAHN’S TESTIMONY! Once he’s in that chair, all McGahn is going to say is “my conversations with the president are privileged.” Boom. END OF HEARING. You can thunder questions at him and read back passages of the Mueller report and all of that, but you can’t make the man give voice to the things he knows and has already told Robert Mueller. And you certainly can’t get him to say anything he hasn’t already told Robert Mueller.
Oh, you can sue him over his assertion of privilege (tic tok), or you can hold him in contempt of Congress (tic tok), but if you thought the Mueller testimony went “poorly” because Mueller did not act out a compelling narrative of the President’s obvious crimes, wait till you get a load of the McGahn testimony.
It would be one thing if the Democrats honestly didn’t know what McGahn was going to say. But in this case, we know what McGahn is going to say because HE’S ALREADY SAID IT. And it was recorded and written down in the Mueller report. Honestly, House Judiciary would be better off just getting David Morse to come in a READ McGahn’s testimony from the Mueller report to them, instead of wasting their time try to force McGahn to repeat himself under oath.
And so I come back to my original problem. I already know how the McGahn testimony is going to play out, and anybody even slightly paying attention does too. The Democrats are marching, uphill, both ways, into a cul-de-sac. WHY? WHY ARE THEY DOING THIS?
Do you know how the universe ends? In a “Big Rip.” The forces of dark energy increasingly expands the universe until galaxies, stars, and eventually atoms are pulled apart. If you were still alive and on a planet before the end, you’d look up into the sky and see no stars, no light, and feel no heat. It ends dark, and it ends cold.
Pondering Impeachment, House Sues Don McGahn, Ex-White House Counsel, for Testimony [New York Times]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at