McGahn could decide Trump's political fate
By Elie Honig
Updated 5:06 PM ET, Wed April 24, 2019
... McGahn served as Trump's White House counsel for nearly 21 months, from Trump's first day in office until October 2018. In that capacity, he had firsthand access to the most important conversations in the administration. And McGahn has long been respected across the political aisle. Not even Trump -- who was reportedly unsettled at McGahn's cooperation with Mueller, though Trump claimed he "allowed" McGahn to testify -- has turned on McGahn and questioned his credibility (not yet, at least).
McGahn's testimony, as summarized in Mueller's report, is potentially devastating to Trump on the matter of obstruction of justice. According to Mueller, in March 2017, Trump told McGahn to prevent then-Attorney General Jeff Sessions from recusing himself from the Russia investigation; Trump "expressed anger at the decision and told advisers that he should have an attorney general who would protect him." McGahn later advised Trump not to have contact with FBI Director James Comey and others at the Department of Justice about the Russia probe.
... in June 2017, when the media reported that Mueller had begun to investigate obstruction of justice, Trump called McGahn at home and directed him to have Deputy Attorney General Rod Rosenstein fire Mueller. McGahn did not carry out Trump's order, "deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre." Compounding the matter, in early 2018, when the media reported on Trump's attempt to have McGahn fire Mueller, Trump pressured McGahn -- indirectly, through other White House officials, and directly, in the Oval Office -- to falsely deny the media reports. McGahn refused.
Apparently recognizing the potentially devastating impact of McGahn's testimony, the White House reportedly may assert executive privilege in an effort to block it. But executive privilege -- the notion that certain communications between the President and his advisers should remain confidential -- seems inapplicable here. First, under the legal "crime-fraud exception," testimonial privileges do not apply to conversations that occurred in the course of committing a crime -- here, at least arguably, obstruction. Second, the White House likely has given up, or "waived," the privilege by permitting McGahn to speak to Mueller about the communications and then by allowing McGahn's testimony to not be redacted in the final report. Typically, once a privilege is waived, it cannot then be un-waived later ...
https://www.cnn.com/2019/04/24/opinions/don-mcgahn-muller-report-congress-testimony-honig/index.html
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