Summary List Placement
Donald Trump left a lot of secrets behind when his presidency ended. Now comes the opportunity to spill some beans during the Joe Biden era.
The reckoning has been a long time coming, and it has reached something of a turning point in recent weeks as federal judges, Justice Department attorneys, and congressional Democrats push toward resolution on a series of high-profile cases that have kept many of the Trump-era mysteries closely guarded through years of tortured litigation.
One juicy nugget of new information could come out of a lawsuit seeking the public release of a Justice Department legal opinion that gets at the heart of an enduring question that once captivated Washington: Did Trump’s efforts to impede the Russia investigation amount to obstruction of justice?
A federal judge recently ordered the release of the legal memo, in a decision that accused former Attorney General William Barr of being “disingenuous” in his rollout of the special counsel Robert Mueller’s findings.
DOJ has until Monday to decide whether it wants to appeal US District Court Judge Amy Berman Jackson’s May 3 ruling to release the memo, which could shed further light on how Barr decided that Trump should not be prosecuted over multiple episodes of possible obstruction that came under scrutiny from the Mueller team.
But wait, there’s more.
The Justice Department led by Biden’s appointees also recently reached an “agreement in principle” with House Democrats that will allow Trump’s first White House counsel, Don McGahn, to sit for a transcribed interview behind closed doors.
McGahn was a central witness for Mueller’s investigators. His name appears more than 160 times in the special counsel’s final 448-page report. Now the Democratic-led House Judiciary Committee will get to ask him about a critical time period that nearly ended the Trump presidency after waging a two-year legal battle.
House Judiciary Committee Chairman Jerrold Nadler told Insider he expected big takeaways from McGahn’s long-awaited testimony.
“It will be based on his testimony and what he told the Mueller commission about his dealings with the White House,” the New York Democrat said in an interview. “The steps are very clear. He will come in for the interview, we’ll ask some questions, and we’ll see where they go from there, depending on the answers.”
Other unexpected legal moments are also shedding light on a Trump presidency that broke all norms.
Earlier this week, a federal court unsealed records showing that the Justice Department secretly obtained a grand-jury subpoena during the Trump administration to identify the person behind a Twitter account devoted to mocking Rep. Devin Nunes, a California Republican and prominent Trump ally. Twitter fought the subpoena, and the Justice Department withdrew it this spring, The New York Times reported.
In recent weeks, the Justice Department has also disclosed that it obtained the phone records of reporters at CNN and the Washington Post during the Trump administration, sparking outcry from the news outlets and press freedom advocates.
Combined, the string of recent developments underscore just how much remains to be known about behind-the-scenes happenings between January 2017 and January 2021 — and how court cases left over from the Trump administration could unearth details in the months and years ahead.
Some of it has the potential to be particularly explosive. McGahn’s testimony and the release of the legal opinion on the Muller investigation could prompt a wider reexamination of allegations of obstruction of justice against Trump at a time when the former president is facing mounting legal risk, with the Manhattan district attorney and, more recently, the New York attorney general running parallel criminal investigations into his financial dealings.
It’s also the case that none of this is especially easy for the Biden-era Justice Department. Legal and political headaches abound for the federal law-enforcement agency as congressional Democrats’ desire for further damning information about Trump conflicts with executive-branch principles that could weigh in favor of keeping the previous leadership’s communications secret.
“They have, on the one hand, a lot of pressure from people to let all of this stuff out. They also have to protect what’s clearly privileged information,” a former Justice Department official said. “One of the beauties of having a career staff at DOJ is trying to maintain arguments and principled positions across administrations. If you do that, you have to take the good with the bad. What you’re arguing comes back to affect you.”
‘It was preordained’
Under the Trump administration, the Justice Department said the memo on the Mueller investigation should not be released because it was part of the process of advising Barr on whether the president should be prosecuted over obstruction-of-justice accusations.
But Jackson questioned the Justice Department’s claim that the so-called deliberative process privilege applied to the memo, siding with the government watchdog group Citizens for Responsibility and Ethics in Washington. The nonprofit group sued in 2019 for access to the legal memo.
Jackson said her review of the document revealed that Barr had already reached his decision on the question of prosecuting Trump by the time the memo was prepared. In a scathing 35-page opinion, the judge appointed by President Barack Obama characterized the Justice Department’s representations in the open-records case as disingenuous and depicted Barr’s rollout of the Mueller report as misleading.
“The review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given,” wrote Jackson, who oversaw Mueller-led criminal cases against the Trump acolytes Paul Manafort, Rick Gates, and Roger Stone.
As the Justice Department approaches a Monday deadline to appeal, the decision is not as simple as wanting the disclosure of a record that could reflect poorly on Trump and his administration. The Justice Department has to keep broader considerations in mind, namely how its approach in the case could influence future litigation over access to other administration records.
There are political crosscurrents at play. Senate Judiciary Committee Chairman Dick Durbin led a group of Democrats writing to Attorney General Merrick Garland last week urging the Justice Department not to appeal Jackson’s order for the public release of the memo.
“DOJ’s actions in this case, and in another recent Freedom of Information Act (FOIA) case seeking information about President Trump’s activities, have raised doubts about DOJ’s candor when characterizing potential evidence of President Trump’s misconduct to courts,” the Democratic senators wrote. “To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them.”
A Justice Department spokesperson declined to comment.
Anne Weismann, a lawyer for CREW, said she was hopeful that the Justice Department would decline to appeal Jackson’s ruling and turn over the memo. In an interview, she said she suspected the document would show that Barr never engaged in a serious legal analysis but instead sought to spin Mueller’s findings to blunt any legal or political damage to Trump.
“I think it’s fair to say the Justice Department took a heavy hit in the Trump years and lost a lot of its luster, and I say this as a former DOJ person,” Weismann, a former longtime official in the department’s civil division, said. “If the AG wants to restore public confidence in the Justice Department, he needs to do the right thing here and put the document out there.”
Other documents released in the same Freedom of Information Act litigation brought by CREW have shown how Barr and other top Justice Department officials were working “furiously behind the scenes trying to figure out how to react publicly to the Mueller report,” she said. The memo could provide further insight into how Barr took steps to shield Trump from blowback over Mueller’s findings.
“It was preordained. They knew they weren’t going to prosecute. It does feed into the larger question of there was never serious consideration at DOJ about what I think is pretty overwhelming evidence” of obstruction, said Weismann, who stepped down as CREW’s chief FOIA counsel last year but has continued working with the watchdog group in semi-retirement.
“DOJ has never seriously considered that, and I guess it raises the question of whether they should,” she added.
Inherited Trump-era cases causing headaches
Changes in administration come with shifts in policy and, in some cases, legal arguments.
After taking office in 2017, the Trump administration abandoned legal arguments the Justice Department had taken under the Obama administration.
Now under Biden, the Justice Department has restored Obama-era positions, notably with regard to the constitutionality of the Affordable Care Act, and canceled Supreme Court arguments scheduled for cases involving funding for Trump’s wall along the US-Mexico border and the former president’s controversial asylum policy.
In the lower courts, some cases leftover from the Trump era are proving more difficult to discard.
A week after Biden was sworn in, the Justice Department asked to push back discovery in a case it filed last year during the Trump administration against John Bolton, the Republican president’s former national security advisor. That lingering lawsuit aims to seize the proceeds from Bolton’s damning memoir about his White House tenure under Trump.
In a ruling earlier in January, a federal judge in Washington, DC, allowed Bolton to pursue evidence that Trump and senior White House officials engaged in misconduct in delaying the national security review of the book, “The Room Where It Happened,” and sought to exert undue influence on classification decisions for sensitive material.
Bolton and the Biden-led Justice Department received a second extension for the beginning of discovery in March. In a filing, the two sides raised the possibility of a settlement.
A settlement could avoid a discovery process that could unearth damaging information about the Trump administration’s review of the book. But legal experts interviewed by Insider said it could also be viewed as going soft on allegations of failure to fully submit to a prepublication review designed to sift classified material out of government officials’ memoirs.
“It’s tricky, and a difficult issue for them is how it will be perceived. If they pursue the case, they give legitimacy to the process that took place during the Trump administration, which doesn’t look good from an appearance perspective,” a former Justice Department official said. “If they settle it and don’t pursue the case, they have to be able to somehow explain why they’re letting Bolton off the hook. That’s a very tricky position for them to be in.”
Since Biden took office, the Justice Department has similarly raised the prospect of a settlement in former Deputy FBI Director Andrew McCabe’s challenge to his 2018 termination.
After months of criticism from Trump, McCabe was fired in 2018, less than two days before his planned retirement. The Justice Department’s inspector general found that McCabe had misled internal investigators about disclosing information to reporters at The Wall Street Journal, but his firing was seen by some supporters as part of Trump’s battles with law enforcement and the intelligence community.
McGahn testimony at long last
The drawn-out case over McGahn’s testimony stood out as perhaps the most prominent instance of the Trump administration’s defiance of congressional demands for information.
Rather than allow that tortured legal battle to proceed, and perhaps set clearer precedent concerning Congress’ ability to compel the testimony of executive-branch officials, the Justice Department under Biden reached a compromise allowing McGahn to testify behind closed doors. The deal was reminiscent of how the Obama administration resolved a standoff leftover from the Bush administration over a congressional demand for the testimony of former White House counsel Harriet Miers.
House Democrats eagerly pursued McGahn’s testimony following his extensive cooperation with the Mueller investigation, in which he relayed several incidents the special counsel scrutinized for possible obstruction of justice. Under the deal with House Democrats, his testimony is limited to information attributed to him in the Mueller report.
But the wording of the agreement appears to give McGahn some leeway to testify more broadly, barring an objection from a Justice Department representative in the room. McGahn’s level of candor and the approach of the Justice Department lawyer are likely to determine the extent to which the testimony provides new insights into Trump’s conduct during his presidency.
“Mr. McGahn will be free to decline to answer questions outside of the agreed-upon scope of questioning and counsel from the Department of Justice may instruct Mr. McGahn not to answer such questions,” the agreement says.
On Capitol Hill, House Judiciary Committee members are scrambling to get ready to engage anew on a topic that once dominated the headlines and could come roaring back based on what information comes spilling out.
Republican Rep. Jim Jordan, the ranking member of the House Judiciary Committee, told Insider that the panel still had not finalized the date on when McGahn is expected to appear before lawmakers. The Ohio congressman, a fierce Trump defender, also said he didn’t anticipate any revelations when the ex-Trump White House lawyer finally sits for his interview.
“It is supposed to be limited to the Muller report, and we already know all about that,” Jordan said.
Several Republicans said their staffers were rereading the Mueller report to get ready for the meeting with McGahn.
“I’m still preparing for it,” Rep. Steve Chabot, a Republican of Ohio, told Insider. “I haven’t formed any opinions that I probably want to express this early.”
This story was first published on May 21, 2021.