A Better Alternative to Holding McGahn in Contempt
Don McGahn has thus far successfully navigated the ethical thicket into which he has been thrown. Congress, however, may punish him for complying with his duties under the law – actions it has heretofore celebrated – if the House Judiciary Committee follows through with its threat to hold him in contempt for adhering to his obligations owed to his former client, and safeguarding the attorney-client and executive privileges he is obligated to protect. The committee should think twice before following through with this threat because it has a better option that could yield more and justified results.
McGahn cannot now simply show up and testify. McGahn, unlike the vast majority of executive officers threatened with contempt, has to worry about his law license. He wasn't just an executive officer: He was the White House counsel, the lawyer to the Office of the President. His client was not just the president but the branch of government the president leads. Any information that he has may be subject to executive privilege, but it may also be protected under the attorney-client privilege. Under the District of Columbia Rules of Professional Conduct, the "attorney-client privilege is that of the client and not of the lawyer." The rule further notes that "the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client privilege and work product doctrine." Accordingly, McGahn has no choice but to honor the privileges his former client owns.
Under the Contempt of Congress statute, McGahn can only be prosecuted if he "willfully" fails or refuses to testify. Congress could also try to bypass the statute and hold him in contempt under its inherent constitutional powers. But even then, there has to be some showing of willfulness. McGahn's refusal to testify is not willful, because his duties under the law require him to maintain and protect the privileges of his former client. Congress itself has recognized the attorney-client privilege when it approved the Federal Rules of Evidence, which hold the privilege virtually inviolate unless certain, limited circumstances exist. This situation is no different than when a witness is unable to testify because of illness, when an independent intervening event has rendered the witness unavailable. In this case, the intervening event is a former client invoking a privilege the presidency owns.
Certainly, there is strong evidence that President Trump – by initially waiving the attorney-client privilege and failing to assert the executive privilege (ironically, against the advice of McGahn, who was even then thinking about the larger institutional interests of the presidency) – waived both, at least to some extent. The law on attorney-client privilege is very fact-sensitive, and the breadth of the executive privilege is not entirely clear. Attorneys faced with this situation, however, are not permitted the make the ultimate decision on whether a waiver has occurred in the face of a client's or former client's invocation of the privilege, nor should they be required to make that determination. This is the job of the courts. And Congress did not grant Don McGahn a license to practice law; the courts did.
The Judiciary Committee cannot have it both ways: It cannot commend McGahn for his integrity, adherence to the rule of law, and loyalty to the institution of the Office of the President, and then condemn him for refusing to ignore similar obligations to his former client the law unquestionably requires. Thus, the well-founded praise McGahn has received for his loyalty to the institution of the presidency is precisely the same loyalty that now precludes him from testifying. Saying the testimony will be limited to the Mueller report does not solve the problem, as the inevitable questioning will focus on what is not in the report, throwing McGahn right back into the ethical thicket. And if questioning is only about what is in the report, then why call McGahn at all? The report speaks for itself.
The Judiciary Committee has a better alternative. Instead of holding McGahn in contempt, it should first seek a judicial determination on whether and to what extent the privileges have been waived. Congress has the power and the ability to seek such a judicial determination, and has done so several times in the past. Only after this sort of determination is made should Congress brandish contempt threats.
By seeking a court decision on these issues instead of contempt, Congress will be acting at the zenith of its powers in seeking a determination from the judicial branch and will, indeed, affirm its commitment to the rule of law Congress claims it seeks to investigate and uphold. It will put the waiver issue to rest, will remove at least one barrier for McGahn and others to testify fully, and may clear significant obstacles to obtain the full Mueller report. Most of all, it will do the right thing for an ethical lawyer who many in Congress have said has done the right thing for this country and the presidency.