It is very safe to say that Trump has had a difficult post-presidency period when it comes to legal liability, both criminal and civil. We reported on the possible case coming out of New York last night along with our reservations about any state prosecuting a former president (whether we’re right or wrong, the concerns about the inherently political nature are problematic). We noted that it was our belief that any decision to prosecute a former president should be made by the nation as a whole, a case brought by the DOJ.

Well, now, a day later, Trump is one step closer. Congress and the White House (Biden’s White House) have reached a deal allowing Don McGahn to testify to Congress as to what he saw Trump do with respect to possible obstruction of justice charges in the Mueller case. If Congress hears what it believes to be a crime, it can refer the matter to DOJ, who may or may not take the case. Given that Mueller outlined any number of instances of obstruction of justice, it is quite plausible that Garland is already moving on such a case anyway.

The interesting fact is that Trump was not part of the agreement. Trump happens to no longer be president and, at least in theory, cannot claim executive privilege, though he might try. As explained by the New York Times:

The Biden administration and House Democrats have reached a tentative deal to allow President Donald J. Trump’s former White House counsel, Donald F. McGahn II, to testify before Congress about Mr. Trump’s efforts to obstruct the Russia inquiry, according to a court filing late Tuesday….

But the filing also flagged a potential wild card: “Former President Trump, who is not a party to this case, is not a party to the agreement in principle regarding an accommodation,” it said.

That absence leaves open the question of whether Mr. Trump could try to intervene to block Mr. McGahn from testifying by asserting executive privilege. An attempt to invoke it by Mr. Trump would raise novel questions about the extent to which a former president may assert the privilege when the incumbent president declines to do so.

If we know anything about Trump, he will move to block the case, claiming executive privilege for himself, even when the current president disagrees. (Biden has plenty of reasons to be guarded about giving Congress wide-open access to the White House, he knows that if the GOP leads the House in 2022 they will impeach him, and thus Biden doesn’t want to open the door entirely).

But even if Trump tries to intervene by taking the matter to court for an injunction, these types of cases can – at times – be heard on an extradited basis, something Trump’s DOJ never claimed but might be claimed in this matter.

Given all that we’ve read about what went on behind the scenes with McGahn, and Trump asking McGahn to fire Jeff Sessions for not firing Comey, McGahn is the person most likely to have the type of testimony that would finally earn Trump a rock-solid federal indictment. We can only hope. We have played this waiting game a long long time. It cannot go on forever. These are good signs.

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Peace, y’all
Jason
[email protected] and on Twitter @JasonMiciak