D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena

The U.S. Court of Appeals for the D.C. Circuit issued a major reaffirmation of congressional authority on Friday when it ruled Friday, 7-2 that the House has legal standing to use the courts to compel McGahn to appear in response to a House Judiciary Committee subpoena.  I testified repeatedly in Congress in support of the McGahn subpoena (including in the Trump impeachment hearing) and said that I believed that the White House was not just wrong on the law but would ultimately fail in this effort. I have been a long advocate of congressional standing as an academic, columnist, and a litigator, including my prior representation of the United States House of Representatives in the Obamacare litigation (where we prevailed on standing for the House). I disagreed with an earlier decision against the House.  I am obviously gratified by the result in this case.

The White House can still raise other issues  the appeals court left open other legal arguments against the subpoena to McGahn. That includes appearing only to refuse to answer certain questions on the basis for privilege or other objections.

However, the ruling reaffirms this critical access of the House to the courts to force compliance with its subpoenas. D.C. Circuit Judge Judith Rogers wrote “To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed. And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information.”

This is the second recent set back for the White House in the D.C. Circuit. Recently, the court reversed a panel in the Michael Flynn case and sent back his case to Judge Emmet Sullivan for a final resolution of the motion to dismiss the case.  While I have strongly disagreed with Sullivan’s actions (as did a couple of judges in the Circuit), I repeatedly stated that I expected the D.C. Circuit to reverse and send the matter back to Sullivan.  The reversal was not an endorsement of his controversial actions but the basic principle that a trial court should be allowed to rule and complete the record before appeal.  I agree with that decision and only hope that Sullivan will consider the concerns of many of us (including fellow jurists) over his prior conduct and orders in the case.  These charges will be dismissed and the D.C. Circuit makes it clear that the law in overwhelming in favor of dismissal.  If Judge Sullivan does not dismiss the charges, he will be reversed.  The only question that remains is whether he will use this hearing for any purpose other than applying that clear legal standard.

This is a far more important ruling.  It is extremely important to our constitutional system for the House to be able to enforce such subpoenas.  Indeed, I hold an even broader view of legislative standing. I previously addressed this importance in testimony before Congress:

I have repeatedly testified before Congress on the single most valuable change that would counter the usurpation of legislative authority: legislative or member standing. I have long advocated the right of members to seek judicial review in alleged violations of the separation of powers. While I understand the reluctance of courts to consider political questions, a separation-based challenge is not a political but a structural question that is committed to the courts. Indeed, “standing” does not appear anywhere in the Constitution as a term or even by reference. It is a creation of the courts and has radically changed over the years to create a growing barrier for access to the courts. We now face a situation where major alleged violations of the Constitution are raised but there is no one who clearly has the standing to force judicial review. 

For those who support the Madisonian democratic values, the D.C. Circuit decision is a triumph for constitutional order.

108 thoughts on “D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena”

  1. First the courts should get their own act together before administering between the other two branches. The Constitution has no sides but the courts place them without concern of the long term effects on their judgment. Most recently at the supreme level Obama care tax debate, lower level continuous interference on immigration to name just a few. And how about the FISA courts aren’t they controlled by the supreme and where is their reckoning.

  2. Trump’s Scheme To Cut Payroll Taxes Has Been A Gift To Biden

    Prospects Of Republicans Gutting Social Security Now Seem All-Too-Credible

    A few months ago President Trump got it in his head that a temporary cut to the payroll tax would be a spectacular boost to the economy, despite the fact that almost no one in either party believed it was a particularly good idea.

    Here’s the background. When it turned out that Congress had no interest in cutting the tax — which funds Social Security — Trump issued an executive order allowing businesses to temporarily defer the tax.

    But then both large businesses and small businesses mostly said, “Thanks, but no thanks” to Trump’s idea, because implementing it would create a bureaucratic hassle and then their employees would be on the hook to pay back the deferred taxes next year.

    When they figured out that few businesses were interested, the administration decided to force 1.3 million federal workers to take the deferral whether they wanted it or not, sparking outrage from employee unions and protests from Democrats.

    But far worse is something Trump said to calm fears about workers being stuck with a big tax bill in 2021. If he wins the election, Trump vowed, he will “terminate the payroll tax.” He added: “We’ll be paying into Social Security through the general fund.”

    That would be a monumental change in how we pay for a program that costs over a trillion dollars a year, which is why White House aides rushed to say that Trump really didn’t mean what he said and instead meant only to say that he’d make permanent the cuts in his executive order.

    No one would be dumb enough to take either Trump’s first promise nor his staff’s clarification at face value; for one thing, either one would take an act of Congress, and they’d never do it. But the thing about political campaigns is that if your opponent says, “I’m going to do this spectacularly unpopular and stupid thing,” you don’t have to ask, “Does he really mean that?” You can just attack him for what he said.

    Which is exactly what the Biden campaign is doing. Biden’s new ad assumes that Trump would eliminate the employee half of the payroll tax (it’s paid equally by employers and employees), which would indeed render the program unable to pay all its benefits in just a few years.

    Edited from: “Trump Made An Incredibly Stupid Promise. Biden Is Turning It Into A Liability”

    Today’s Washington Post

    1. And military personnel can’t opt out, so members of the military are being warned, since they’ll owe the money back unless it becomes permanent (and harms Social Security):

      “More than a million troops to get temporary pay hike with payroll tax deferral — but there’s a catch”

    2. There is no basis for this assumption. The payroll tax deferral order was a deferral order not a cancellation. There is no authority in the POTUS to cancel the tax, only to defer collecting it.
      Kinda like Obama deferred deporting dreamers, ya know? SCOTUS said that was ok so the payroll tax deferral must be too. LOLZ

      1. Kurtz, the issue is that no one wants the deferment because they dont want to be hassled later. But that aspect of the issue just whizzed over your head.

  3. Leslie Proll (civil rights lawyer):
    “Senate is back today. Although it has confirmed 200+ Trump judges, more judges are first on agenda.
    “Look at what’s not at top of list:
    “❌ COVID relief
    “❌ Justice in Policing Act
    “❌ Restore Voting Rights Act
    “❌ Fund postal service
    “❌ Protect elections from foreign interference”

    Why are they focusing on judges?
    Because support for Republicans is shrinking, and as the demographics of the country continue to change, they’ll continue to lose voters, and appointing conservative judges is the GOP’s effort to make up for their shrinking legislative power. If they actually cared about the country’s well-being, they’d be acting on legislation that benefits people.

    1. Regarding Above:

      If Democrats are blessed with a blow-out victory this fall, they should declare the Federalist Society an inappropriate organization for any judge to belong to. Ideally judges should have open minds towards facts and compelling arguments. There should be no such thing as ‘Cookie Cutter Judges’ upholding the values of organization whose principles are at odds with the nation’s well-being. Democrats should then have Congress pass a resolution removing all Federalist judges from the courts. Republicans would go ballistic, of course. But why should this country be saddled with a significant number of judges appointed by an impeached president who lost the Popular Vote??

      1. regarding above anonymous




        1. Kurtz, we don’t want judges ‘groomed’ in a conservative finishing school to look out for ‘only’ conservatives. And since Trump never won the Popular Vote, he shouldn’t have the right to stick us with such judges.

          1. Our presidential election is 50 individual elections. You know that just as much as I do.

          2. Federalist society is nothing of the sort. You wouldn’t know a thing about it. Did you sit through events and lectures? I did

            but who cares eh? im done with them a whiles back. Or i wouldnt be on here writing under a fake name what i really thought.
            the worst thing i can say about those guys is they kiss too much backside just to get a slot.
            i never was good at hiding what i really thought.
            but that’s par for the course with most appointed judges. for my part I still like electing judges and I’d be in favor of doing that more
            I know ABA considers that notion a heresy, so, that means it’s probably got merit

            as for the popular vote, back to civics 101. electoral vote gives the win. don’t like that? change the law and quit whining

            1. Kurtz, too many of Trump’s (Federalist) appointees are younger White males. And that’s the whole idea. ‘Young’ White males to stay on the courts for decades. So long after public views have changed, we’ll have a bunch ‘old’ White males keeping the courts true to Mitch McConnell’s vision. Never mind that McConnell will be decades dead by then.

              1. Too many? Is there a Goldilocks number for color on the courts? Do you read court opinions and think, wow, that dude is so white?

            2. Kurtz, it’s not the EC, it’s winner take all rules in 48 states, meant to optimize each states power but with all doing it, only optimizing the dozen or less battle ground states and cancelling the rest where candidates don’t bother to even visit. That is not in the Constitution and when states started doing that early in the 19th century Madison expressed his displeasure.

  4. Each branch has innate privilege, otherwise, it ceases to exist as a branch – it is subsumed by the favored branch.

    An attorney does not represent a client if all aspects of the client’s case are made public.

    Property is not private if public ingress is allowed.

  5. I recall Turley testifying at the impeachment trial that of course if Congress just went the subpoena route this would all be resolved in a few months, and was highly critical of Congressional Democrats for not playing it out in the courts. Predictably, Trump, aided by some judges some of whom he appointed, of course will drag every subpoena out and it will be several rounds of court appeals before any resolution – at which point Trump will likely be a private citizen by virtue of the electorate.

    1. A private citizen who will have no protections from the office making him more vulnerable to prosecution. Remember just because he becomes a private citizen doesn’t mean he doesn’t answer for his crimes as president. Even Turley clearly stated this is perfectly a legal route Biden can take against trump.

  6. Worth another side glance: HCQ use was associated with a 30% lower risk of death in COVID-19 hospitalized patients.


    This is just one of a number of recent studies showing the drug is effective. Moreover, in Africa where the drug is used routinely because of malaria the Covid-19 impact has been relatively light.

    For political reasons the Left attacked the drug relentlessly, including Commit and BTB on this site, leading to reduced chances for infected people to take it and correspondingly greater deaths. That’s on you folks, or as they say, blood on your hands.

    1. Young would have us believe that Democrats are immune to the virus and have no aging relatives. Democrats, according to Young, are all slim and fit with no exposure to germs.

        1. Young, you’re making a ridiculous argument! You’re mindlessly asserting that half the country wants to prolong this pandemic by ignoring an effective treatment just to spite Donald Trump. At the same time you’re implying that the Science community is aiding this effort to ignore an effective treatment. Only a paranoid believer in QAnon would subscribe to such nonsense.

          1. Young, Allan and a few others spend a lot of time on this blog. One doesn’t have to wonder why. All one has to do is read their all-too-frequent comments.

          2. Anon. Look again at you comment at 3:00. I said none of those things. You are attacking a straw man conjured from your own delusions. As I said, electroshock therapy might help you with that.

          3. Who said half the country? Just some scurrilous strategists who appear to mysteriously dictate editorial policy at Wapoo and NYT which both failed to update the retraction of the anti-hcq+ prophylaxis debunking from the Lancet, which wasnt. And Lancet retracted it. Did wapoo and nyt update this fact? hmmmm i dont think so

            There are numerous interviews from physicians who were reporting solid anecdotal results all along and were decrying this lack of objectivity by the medical establishment and the press, as the early pandemic wound its way through our existence. One of them is a Jewish doctor from out East who treated that synagogue cluster from NJ. I forget his name. There were various others.

            So I would say, having been given this “talking point” that hcq+ was bogus, Democrats at the low level, trusted their leadership, and were caught up in this anti-HCQ narrative, they thought it was just bs, when it wasnt, and it’s evident more so than ever, that HCQ+ has some therapeutic validity. And yet the word never went out, so we are still stuck with those who yet harbor this illusion.

            Lysenkoism, in a word

    2. ROFL that you think anyone’s comments here have any impact at all on who hydroxychloroquine is prescribed to. Are you nuts?

      You’re also silent about the limitations that the authors themselves note for the study: “Within the limits of an observational study and awaiting results from randomized controlled trials, these data do not discourage the use of HCQ in inpatients with COVID-19.”

      “Moreover, in Africa where the drug is used routinely because of malaria …”

      Malaria is common in much of Africa. There are a number of approved drugs (CQ, HCQ, atovaquone-proguanil, doxycycline, mefloquine, …), which have varying effectiveness, dependent in part on where someone lives, which Plasmodium species live there, and what kind of resistance has developed. You haven’t presented any evidence that HCQ is “used routinely” in Africa. I remember when I worked in sub-Saharan Africa in the 80’s, I initially took chloroquine, but then had to switch to Fansidar because of the chloroquine-resistant malaria where I was living/working (where P. falciparum was common). I don’t know how widely used hydroxychloroquine is as malaria prophylaxis in 2020, and I doubt you do either.

      1. This is only one of multiple studies that have come to the same conclusion. Another came from Belgium recently and it was quite persuasive. Then the Ford study. I haven’t forgotten that two, black, Democrat legislators have also credited HCQ with saving their lives.

        You and Book are part of the crowd adding their voices to the denunciation of a drug that appears to be saving lives. Who knows what you are saying to individuals or others. I compare you to people who won’t take antibiotics for some bizarre reason or other. Nor, for that matter, do you know how many people repeat what you say thinking you know what you are talking about.

        If even one sick person took your advice, directly or indirectly, and suffered for it, that is too many.

        Meanwhile, you fault Trump for speaking for a drug that has been available for years and has known, and limited, side effects. You took it and it didn’t kill you.

        But you haven’t commented on Cuomo’s ordering COVID diseased patients into nursing homes where their infection could kill thousands. New York has fewer cases than Florida 473,000 to 650,000 but almost 3 times as many deaths.33,000 to 12,000. A lot of that comes down to Democrat Cuomo and his homicidal policies. New Jersey is another Democrat failure, 198,000 cases but 16,000 deaths, far more deaths than Florida with a much smaller population.

        The Democrat party is the party of riots, neglect and death.

        1. Young, you’re either lying or you have really bad reading comprehension. I haven’t “denounced” HCQ.

          “If even one sick person took your advice, directly or indirectly, and suffered for it, that is too many.”

          What advice? Quote what you’re referring to, so we can see what advice you’re referring to, because your vague handwaving doesn’t tell us.

          And do you hold Trump to that same standard, that “If even one sick person took [his] advice, directly or indirectly, and suffered for it, that is too many”?

          “you fault Trump for speaking for a drug that has been available for years and has known, and limited, side effects.”

          No, I fault him for advocating a drug that hasn’t yet been shown by randomized controlled trials to be effective and for causing a shortage of the drug that harms people who take it for other illnesses, like lupus.

          “You took it and it didn’t kill you.”

          Work on your sh*tty reading comprehension (or maybe your comprehension is fine, and it’s simply your inattention to detail that’s showing). I did not take HCQ. I took CQ.

          “you haven’t commented on Cuomo’s ordering COVID diseased patients into nursing homes where their infection could kill thousands”

          Actually, I told you days ago that “I’m aware of the order issued by Cuomo on March 25 through May 10. But I’m not sure what analysis has been done to determine the # of nursing home deaths linked to the order vs. from other causes (e.g., via asymptomatic workers). I look forward to you presenting evidence for your claim that “Cuomo killed thousands by sending virus infected bodies into nursing homes.” You are going to present evidence, right?”
          But you never did respond.

          Just like you didn’t respond above re: whether you actually had evidence that HCQ is currently “used routinely” in Africa.

          You just move on to new claims, new insults, …

          1. Commit: ” I did not take HCQ. I took CQ.”
            Word mincing again. They are very similar. Either will work. But why mention it if it’s different?

            Commit: “I fault him for advocating a drug that hasn’t yet been shown by randomized controlled trials”

            If the two black, Democrat legislators had waited for your randomized trials they would be dead. Good thing you weren’t in charge of their care.

            Cuomo knew from the Washington tragedy that nursing home patients were vulnerable. Cuomo exposed them to repeated infections despite that and many died. The low fatality rate in Republican Florida compared to the outrageous, homicidal rate in New York screams for justice.

            1. “why mention it if it’s different?”

              Again: work on your reading comprehension. I mentioned it to point out that just because a drug has been used as an antimalarial, that doesn’t imply that it’s still widely used.

              YOU claimed “in Africa where the drug [HCQ] is used routinely because of malaria …,” but you haven’t provided any actual evidence that HCQ is actually “used routinely” in Africa in 2020 vs. the multiple other antimalarials that are used. My guess is that it’s not one of the widely used antimalarials, but I don’t know. If you were honest and you don’t know, you’d just say “I don’t know.”

              “If the two black, Democrat legislators had waited for your randomized trials they would be dead.”

              You think that the only reason that doctors have tried it with patients is because of Trump? Are you nuts? I haven’t advocated that doctors not prescribe it. I don’t have a problem with doctors prescribing drugs off-label in consultation with patients after reading the literature and determining that a given off-label use might help and isn’t contraindicated for that patient. On top of which, you have no idea what the outcome would have been for those 2 specific people if they hadn’t taken it.

              “Good thing you weren’t in charge of their care.”

              What an idiotic comment. I would never want a non-physician in charge of someone’s care for a serious illness. Of course it’s a good thing that *I* wasn’t in charge of their care. It’s also a good thing that *Trump* wasn’t in charge of their care and that *you* weren’t in charge of their care. Why is it a good thing? Because none of us are physicians.

              You say “If even one sick person took your advice, directly or indirectly, and suffered for it, that is too many,” and I ask you to quote the advice, but you cannot. Because you’re imagining it. It’s striking that you call others “delusional” but attribute things to others that they haven’t said. Were you hearing voices when you imagined this “advice” that didn’t actually come from me?

              And you still haven’t provided actual evidence about the impact of Cuomo’s order. No one is questioning the # of overall deaths (as long as you’re not one of the crazies who’s insisting that it’s only a few thousand total nationally). You made a claim about the impact of Cuomo’s *order*. Either back it up with evidence or act like an honest person and simply admit “I can’t.”

        2. Young says: “limited side effects”. If indeed that ‘was’ the case there would be no controversy here.

      2. again we see CTHD wasting time. but i’ll toss another proof out there which she will ignore, and thus in turn prove MY POINT that CTHD IS A TROLL. IGNORE!


        “Treatment with Hydroxychloroquine Cut Death Rate Significantly in COVID-19 Patients, Henry Ford Health System Study Shows
        July 02, 2020

        DETROIT – Treatment with hydroxychloroquine cut the death rate significantly in sick patients hospitalized with COVID-19 – and without heart-related side-effects, according to a new study published by Henry Ford Health System.

        In a large-scale retrospective analysis of 2,541 patients hospitalized between March 10 and May 2, 2020 across the system’s six hospitals, the study found 13% of those treated with hydroxychloroquine alone died compared to 26.4% not treated with hydroxychloroquine. None of the patients had documented serious heart abnormalities; however, patients were monitored for a heart condition routinely pointed to as a reason to avoid the drug as a treatment for COVID-19.

        The study was published today in the International Journal of Infectious Diseases, the peer-reviewed, open-access online publication of the International Society of Infectious Diseases (ISID.org).

        Patients treated with hydroxychloroquine at Henry Ford met specific protocol criteria as outlined by the hospital system’s Division of Infectious Diseases. The vast majority received the drug soon after admission; 82% within 24 hours and 91% within 48 hours of admission. All patients in the study were 18 or over with a median age of 64 years; 51% were men and 56% African American.

        “The findings have been highly analyzed and peer-reviewed,” said Dr. Marcus Zervos, division head of Infectious Disease for Henry Ford Health System, who co-authored the study with Henry Ford epidemiologist Samia Arshad. “We attribute our findings that differ from other studies to early treatment, and part of a combination of interventions that were done in supportive care of patients, including careful cardiac monitoring. Our dosing also differed from other studies not showing a benefit of the drug. And other studies are either not peer reviewed, have limited numbers of patients, different patient populations or other differences from our patients.”

        1. Kurtz– The Ford study was very compelling. The Belgium study helped convince Dr. John Campbell whose video presentations from the UK have been excellent from the beginning. The benefit versus risk of taking it if infected with the Wuhan virus is now substantially in favor of taking it.

          I suspect you are right. The leaders wanted to attack Trump on everything and the trolls got the notice and have been ranting against it ever since. The Yale epidemiologist [forgot his name] who early on said it works is candid in saying now that the opponents have killed hundreds if not thousands just to make a political point. If Commit or Book get Covid I suspect they won’t wait for clinical trials; they will be gulping the pills to save their own hides. Actually, Book said as much some while back.

          1. I suspect you are right. The leaders wanted to attack Trump on everything and the trolls got the notice and have been ranting against it ever since.

            You mean like a certain elderly quondam store detective in West Hollywood?

          2. I can’t cut the WAPOO or NYT slack, nor the leading liars like Pelosi.

            I can cut the garden variety democrats some slack, because, as you see, they get lied to very aggressively by their party leadership and national fake news media.
            Unfortunately, they are often in denial about admitting a proven error, and rarely are able to come together and rectify proven falsehoods which have come from their pathetic and wicked mercenary leadership.

            these who have uickly. such strong crowd instincts are not a problem. if sufficient force was applied at the financiers of all this mischief, and some chokepoints on down the rungs of the ladder, the lemmings could be fed a good message instead of constant bad ones, and things might go in a better way

            So what happened that allowed the truth about HCQ to emerge? Well, in the hospitals, and the universities, there were simply too many decent physicians and researchers to control, and the real ones are harder to control than ticket punching, bean counting bureaucratic scum. There were doctors and researchers doing real work and not just following the lysenkoism.

            So the bad guys lost control over the bogus narrative. the truth came out. never judge to quickly on what the “newspapers” claim the “scientific community” says– because science is a very useful epistemological method and usually a very slow one, that takes time and does not lend itself to headlines that are fetched from ignorance in a few weeks or months.

        2. “i’ll toss another proof out there which she will ignore”

          I’m not ignoring it. I’m simply noting that any honest scientist looks at all of the relevant evidence, in favor and against; they don’t cherrypick. I’m also noting that prospective randomized controlled studies are more reliable than retrospective observational studies. Both you and Young have cited the latter, not the former.

          Did you read the study itself, or only the news report?

          Here’s a partial quote from the study itself: “Limitations to our analysis include the retrospective, non-randomized, non-blinded study design. Also, information on duration of symptoms prior to hospitalization was not available for analysis. … Recent observational retrospective studies and randomized trials of hydroxychloroquine have reported variable results. … Our results also require further confirmation in prospective, randomized controlled trials that rigorously evaluate the safety and efficacy of hydroxychloroquine therapy for COVID-19 in hospitalized patients. Considered in the context of current studies on the use of hydroxychloroquine for COVID-19, our results suggest that hydroxychloroquine may have an important role to play in reducing COVID-19 mortality.”

          Might it prove to be effective? Sure. Do we know this for certain already? No. Combined results from multiple studies have conflicting results.

      3. Commit,
        Regarding malaria, I thought this was interesting:
        “In conclusion, SeO32−, methylseleninic acid, selenomethionine and selenocystine have anti-plasmodial activities that induce apoptosis-like cell death in P. falciparum, and the anti-plasmodial effects of Se seem to be based on its chemical forms. The apoptosis-like cell-death mechanism in P. falciparum can be beneficial to respond to the growing problem of drug resistance.”

        The same website notes that many areas of Africa (and China) have selenium-poor soils.

        ” Interestingly, a recent ecological analysis using these data in relation to the COVID-19 outbreak in China indicates that there may be a relationship between Se status and disease outcome(85). Cure and death rates from COVID-19 were analysed in different regions in relation to Se status as previously assessed by hair Se; notably the city of Enshi in Hubei province, known for high Se status, showed a significantly higher cure rate whereas
        Heilongjiang province, known to be an area of low Se status, showed a higher death rate. Overall, cure rate was associated with higher Se status”
        British Journal of Nutrition. August 2020. “Selenium and viral infection: are there lessons for COVID-19?” G. Bermano, C. Méplan, et al.

        Glutathione is manufactured by the endoplasmic reticulum which requires zinc to do so (so a zinc ionophore + zinc would help the ER produce glutathione). At the heart of glutathione is a selenoprotein.

  7. I think it’s only a matter of time before someone orders a load of big rocks dumped on Prof Turley’s front lawn for his to use on his glass house & give him a backhoe so he can dig the his hole faster in his back yard to bury his “Expectation of Privacy”, his Civil Rights, the Bill Of Rights & his , congress & especially the US Judiciairy’s
    “Attorney-Doctor Client Privilege”.

    Mark my words, it will not be violence that destroys you people but your own legal recommendations, rulings & other actions.

    What’s that George is always saying? Something about the Manifest Tenor of the US Constitution.

    I guess it’s far beyond the grasp of many people even to today.

    1. Maybe in part I jumped the gun? I’ll keep reading.

      “malthus100 says:
      September 8, 2020 at 12:40 PM

      Prof. Turley, can you give us any insight into why or how Trump waived attorney-client privilege with McGahn in the first place? I remain mystified by that decision.”

  8. This is worth a side glance, Megyn Kelly slams Kamala Harris for saying she is ‘proud’ of Jacob Blake.


    Blake was approached by the police after a black woman called for help when Blake violated a restraining order by coming to her home and, again, assaulting her sexually with his hands in her private areas. Blake was shot when he reached for a knife after struggling with police.

    So, Kamala is ‘proud’ of this criminal deviant who attacks women. But she was proud of J. Smollett too, and supported his stupid, racist allegations.

    Kamala is one wicked person.

    1. Young, a reminder that in our discussion of the the shooter who killed two people in Kenosha (since indicted for murder), you said “So far as I know, it is too early to decide whether the shooter in Kenosha is a murderer,” “Probably you do not quite grasp the requirements for conviction. We say Guilty Beyond a Reasonable Doubt,” and “Commit, a person is Presumed Innocent until proven guilty.”

      Apparently you don’t think it’s too early to decide that Jacob Blake is a “criminal deviant who attacks women” and don’t consider him innocent until proven guilty.

      1. The court had already issued a restraining order against him for previously assaulting this woman in the same way. He broke the restraining order and assaulted the woman again, penetrating her with his fingers. He fought with the police. He went for a knife.

        On these witnessed facts do you believe the woman?

        Are you proud of this man?

        Are you happy with Kamala being proud of this man?

        I notice that Kamala, the feminist, didn’t bother to meet with the woman who had been sexually assaulted by this person according to her account. Kamala isn’t proud of the victim. In fact, in her political world, it appears she doesn’t give a s**t about the victim.

        I never thought you would rush to the side of the man who assaulted a woman and then ignore the victim. But, Kamala!

        1. Among your problems, Young, is that you often make claims without providing actual evidence for them.

          Here’s one relevant court document: https://wcca.wicourts.gov/caseDetail.html?caseNo=2020CF000736&countyNo=30&index=0&mode=details&_ga=2.75973917.962857288.1599592244-1057828937.1598121223

          Now your turn. Present actual evidence. Why don’t you start with “[He] assaulted the woman again, penetrating her with his fingers.” Provide a statement from the woman or a police report that she stated that.

          “I never thought you would rush to the side of the man who assaulted a woman and then ignore the victim.”

          I haven’t. I’m waiting for more information. Me calling you out on your hypocrisy isn’t me rushing to Jacob Blake’s side.

          “On these witnessed facts do you believe the woman?”

          You claim again that they’re “facts,” but you don’t provide evidence. What kind of sh*tty lawyer are you? Present the evidence that would be allowed in court. I’d be happy to listen to what she’s said about it. I’ve yet to hear that. If you have a statement from her, present it. If you don’t have a statement from her, then act like an honest person and just say “I don’t have one.”

          As a lawyer, you should know that it’s pretty common for a judge to issue a pre-trial TRO. The issuance of a TRO is not evidence of guilt. Do you believe that “a person is Presumed Innocent until proven guilty” or don’t you?

          “Are you happy with Kamala being proud of this man?”

          The Hill doesn’t quote her, but indicates that his lawyer said “Jacob [Blake] Jr. told Sen. Harris that he was proud of her, and the senator told Jacob that she was also proud of him and how he is working through his pain.” That’s not a statement about being proud of his alleged criminal acts. If he did what he’s been charged with, that’s shameful, but it still wouldn’t justify shooting him in the back 7 times and paralyzing him.

          “he reached for a knife” “He went for a knife.”

          There was a knife in his car. Prove that he reached for it.

          Kyle Rittenhouse killed two people. I’m willing to wait until his trial before deciding if he’s a murderer. Why aren’t you willing to wait for Blake’s trial?

          1. Commit: ” What kind of sh*tty lawyer are you?”
            One who knows that this is only a blog site and not a courtroom. Perhaps you haven’t noticed, but you are neither a judge nor a jury.

            You said The Knosha Kid was a murderer within a day or so of the incident. Almost at the same time there were reports he was being chased and attacked by three people. One of those, by the way, had a record as a sex offender. What is it with you and your affection for sex offenders? He had no record. My original comment was wait and see but I doubted this was murder.

            Blake, on the other hand, has a record. He fought with the police. He had a knife and appeared to be going for it. I would have shot him right then and there had I been one of the officers. There have been a number of reports online about what he did to that woman. Some likely have errors. They always do. Court documents also do not always touch on everything. But taken together, I think that with the existing information you would not want to invite home for dinner and to meet the folks. The Kinosha Kid, on the other hand, appears safe if you don’t attack him.

            The other thing, “What kind of sh*tty lawyer are you?” You and BTB and Natascha have a lot in common.

            1. “You said The Knosha Kid was a murderer within a day or so of the incident. ”

              No, I said “Young, will you join me in condemning the person who murdered two protesters in Kenosha last night?” because the deaths had been described as murders, but shortly after, I realized that I’d worded it too strongly and said “He’s been charged with first-degree intentional homicide, but whether he’s guilty will be determined in a trial or plea.”

              “What is it with you and your affection for sex offenders?”

              What is it with you and your predilection for asking false loaded questions? I take that as evidence that you don’t have a good argument, so you resort to garbage.

              Me: “Now your turn. Present actual evidence. Why don’t you start with “[He] assaulted the woman again, penetrating her with his fingers.” Provide a statement from the woman or a police report that she stated that.”
              You: [crickets, no evidence]

              You: “he reached for a knife” “He went for a knife.”
              Me: “There was a knife in his car. Prove that he reached for it.”
              You: [crickets, no evidence]

              “I would have shot him right then and there had I been one of the officers.”

              Then you’re a disgusting person, and it’s good that you’re not a police officer.

              1. Commit: “You said The Knosha Kid was a murderer within a day or so of the incident. ”

                No, I said “Young, will you join me in condemning the person who murdered two protesters.”

                This is why so many think you are a little off. Care to distinguish “was a murderer ” which I said you said from “the person who murdered” which you did say.

                I don’t mean doing a letter count or saying that “was a murderer” has one less word than “the person who murdered” or other slightly mad distinctions you often make. It is plain that you jumped to the conclusion that the kid was a murderer.

                Do you do this at home? Does your husband just turn up the television or rip out his hearing aids when you do this? Or do you only live with a dozen cats? This senseless parsing is not something found in How to Make Friend and Influence People.

                By the way, Biden’s former stenographer announced that Biden’s mind is in steep decline.

                1. Young, you complain about me missing the big picture, but then you do what you accuse me of, by purposefully cutting off the second half of what I said to you in order to distort the big picture.

                  I said all of the following, and you cut off everything in italics, even though it’s all relevant: “I said ‘Young, will you join me in condemning the person who murdered two protesters in Kenosha last night?’ because the deaths had been described as murders, but shortly after, I realized that I’d worded it too strongly and said ‘He’s been charged with first-degree intentional homicide, but whether he’s guilty will be determined in a trial or plea.’”

                  “It is plain that you jumped to the conclusion that the kid was a murderer”

                  Duh. Because I’d seen a bunch of people referring to two murders. And then I realized that I shouldn’t jump to that conclusion, so I corrected myself, noting he’d been charged but we didn’t know yet whether he was guilty. If YOU corrected yourself even half as often as I do, we’d be making progress.

            2. Young, you leveled specific charges and have been asked for proof. It seems you’re inability to provide it is evidence against your claim. How else can we read that?

              1. The police union has published its review of the incident. The proof that the suspect had a knife and reached for it, is the contemporaneous eyewitness accounts of the other police on the scene at the time. Likely these accounts have already been given under oath and they will be again. That is the proof.


                Now i wonder if CTHD will admit that there is proof that the suspect had a knife and reached for it, or not. If not then it confirms what I have said the past month, which is that it is a troll and it only seeks to make argumentative comments and waste time.

                No doubt someone else, her or part of the team, will fetch up the goalposts and move them,. which will only serve to further prove the point.

                1. Kurtz, thanks for the link, but I don’t think it proves what you say it does. Yes, he apparently had a knife at the point he was wrestling with the cops, but it doesn’t say he did as he walked around the car and there is no statement that when he reached into the car that was what he was going for. Since this comes from the police union, some skepticism is warranted, just as it would be if coming from Blake’s lawyer.

                  “The Wisconsin Department of Justice had no immediate comment on the union’s version of events. “

                  1. Fine, leave it to the authorities to sort it out. But don’t pretend there is no evidence that the suspect had a knife or that he reached for it. I mean I saw the guy on video ignoring commands, walking off the taser shots, and going into his car. It’s pretty normal to fear people have a weapon in the car. A lot of people do. Hell I do and more than one. But if i get pulled over, I keep my hands on the wheel, and I follow orders, because I was taught as a kid, cops have good reason to fear for their lives when pullover suspects don’t comply and grab for stuff . I was taught by a former prosecutor that if I valued my life, I would always always keep my hands in view, and follow orders of police if pulled over. I have never had a problem with being pulled over and as a reformed traffic violater, I got pulled a lot before I mended my ways.


                    We also discussed the landmark case Terry v Ohio in law school and we were warned much the same. Lucky for me I guess, not only do I have this white skin, for which I thank my ancestors, but I also had this excellent and very practical education.

                    Who is educating the young black men to avoid the trouble by complying with police? It’s sure not BLM which is EGGING THEM ON TO “RESIST”


                    1. Kurtz– On keeping hands on the wheel, I do too. At night I also turn on the dome light. I can easily imagine being on edge walking up to a vehicle and not knowing what to expect. I am courteous but not obsequious and I have been treated fairly.

                      Again, I may be a horrible person to Commit, but if I were a cop and had to fight a person who walked off a taser and headed for a knife I would have shot him.

                      A couple days ago a video was online showing a skinny white girl charge out of a house with a butcher knife and attack two cops and a dog. She was still fighting the dog and holding the knife on the ground with bullets in her. They can be fatally wounded but still kill. I hope she didn’t hurt the dog.

                    2. you need at least 10 feet distance for a real shooting professional specops guy to be able to get a draw and shot off against a knife attacker.

                      most cops don’t come anywhere near that level of shooting competence. 20 feet is more realistic for a fast cop. even then it might not be enough

                      people are generally ignorant of such things and of course BLM doesnt want anyone to know. trust me, cops know!


                      another point the BLM suckups don’t get, is that every wrestling match with a cop, is a handgun incident. because the suspect sometimes can seize the weapon. cops are trained in weapon retention but it’s a wrestling match and skills matter. in jail, a lot of hardened convicts learn the methods of seizing handguns and even practice them when they get out. like, how to yank a thing out from the cop’s holster and pull the trigger with the pinkie. such things can and do happen.

                    3. Kurtz– So true. The woman cop who jumped back when the knife crazy jumped out at her fired several shots and all missed. Had she not had backup she would have been stabbed to death.

                      Precious time is lost when your mind is trying to overcome the disbelief that this is really happening to you. Then you need to act. There is very little time to avoid being killed, but I think you already know that.

                    4. Kurtz– My God! What a telling video. Thanks. I noticed the attacker using his left hand as a distraction and then bringing the knife in for the kill. Terrific training video. I am sending it on. Thanks again.

                2. To be clear: I haven’t questioned that there was a knife in the car. There’s plenty of evidence for that. The question was: did he reach for it, as Young claimed? (And was he holding it, as some others have claimed?)

                  “Likely these accounts have already been given under oath”

                  I look forward to hearing statements made under oath — from police, Blake, witnesses, and investigators. Your link doesn’t provide that.

                  Your link has conflicting info:
                  “Blake was armed with a knife, but officers did not initially see it, Matthews [attorney for the Kenosha Professional Police Association] said. “The officers first saw him holding the knife while they were on the passenger side of the vehicle,” he said.
                  “The bystander who recorded the shooting, 22-year-old Raysean White, said he saw Blake scuffling with three officers and heard them yell, “Drop the knife! Drop the knife!” before gunfire erupted. He said he didn’t see a knife in Blake’s hands. “State investigators have said only that officers saw a knife on the floor of the car. They have not said whether Blake threatened anyone with it.”

                  AFAIK, the state investigators still haven’t stated any subsequent conclusions about it.

                  I have no problem admitting that the news report says what it does.

                  1. Commit– If someone fights you, resists a taser and heads in the direction of a weapon like a knife, then shoot. Even then you may not avoid being hurt.

                    1. “ Commit– If someone fights you, resists a taser and heads in the direction of a weapon like a knife, then shoot. Even then you may not avoid being hurt.”

                      Big problem with that assertion. They didn’t know there was a knife until AFTER he was shot. Remember YOU stated that they FOUND a knife after he was shot.

                      He headed in the direction of his car where his children were. None of the officers could have known there was a knife in the car. There was no indication there was a weapon in the car before he went to it.

                      The police report stated there was a knife on the floorboard, BUT given the fact that police themselves have lied before about such evidence it cannot be credible until the full investigation is completed.

                      No police officer reported that he was heading for a weapon. The knife was discovered AFTER being shot.

                3. Mr. Kurtz, the only proof there is about a knife being held is the police union’s claim. It’s already proven that police reports are often embellished or made to square with the events and later proven to be fabricated by video.

                  The credibility of a police report is no longer a certainty that it is true.

                  Police officers were well within arm length of Blake when he reached into his car. They still had the ability to pull him off rather than just shoot him point blank in the back. CTHD provided actual evidence that young has yet to provide. Being a lawyer as he claims to be he should have no problem providing the evidence for his claims. He’s moving the goalposts not CTHD. That’s a mark of a S-itty lawyer. In fact CTHD is more of a lawyer than young is and she’s actually NOT a lawyer.

                  1. I doubt anyone here feels obliged to prove anything to you. You just spin in place rather than discuss. And, as I mentioned above, this is only a comments section in a blog, not a court.

    1. Disobedient saboteur with an obvious ethnic motivation. Very pathetic he was allowed to disrupt WH operations the way he did

  9. Important issue indeed. Just worth to mention the dissenting of judge Henderson, rejecting that argument mentioned in the post, that, there is no other way, but to judicially, compel the political branch, to comply with the legislature demands or requests. I quote:

    ” The House may, for example, withhold appropriations or, as it did here, impeach the President for “[d]irecting the . . . def[iance of] a lawful subpoena.” H.R. Res. 755, 116th Cong., at 6 (2019).2 Thus, even if the House is unlikely to invoke its inherent contempt authority or pursue a criminal prosecution, see Majority Op. at 33–34, it is untrue that “no practicable alternative to litigation exists,” id. at 26. The political process may be messy, subject to the pitfalls of supercharged partisanship, but “we must put aside the natural urge . . . to ‘settle’ [this dispute] for the sake of convenience…….”


  10. The House of Representatives is no more a CO-EQUAL branch of government than just one member of the Supreme Court is a CO-EQUAL branch. It takes BOTH Senate and House both agreeing in order to counter balance the President. Also the Plenary powers of each branch used to be inviolable

    1. How is a branch “co-equal” if it has the power to impeach and convict the other two branches.

  11. Trump is an expert in subverting judicial proceedings through perverse manipulation of appeals etc. His arguments range from getting his hair wet to being god and above the law.

  12. Mostly good column JT. Not sure why you have walked so softly previously on this issue, yet another example of Trump’s attempts to weaken our representative government.

          1. ha ha Prarie Rose says the name of an important figure. Prarie if you thought nobody had heard of him who would read you, I did


            It’s hard to hear his name and not be reminded of the owner of Time Life, Henry Luce, and his OSS man, CD Jackson.

            It’s all so much more subtle and complicated that “Operation Mockingbird” these days now

  13. Prof. Turley, can you give us any insight into why or how Trump waived attorney-client privilege with McGahn in the first place? I remain mystified by that decision.

  14. Turley has the temerity to chide Judge Sullivan: “I agree with that decision and only hope that Sullivan will consider the concerns of many of us (including fellow jurists) over his prior conduct and orders in the case.” JUDGE SULLIVAN’S CONDUCT is something the American people should worry about, given the lies and guilty pleas of Flynn and the blatantly-obvious political reason for Barr seeking dismissal? If the parties could simply dismiss a felony criminal case without the Judge’s approval, they would have already done so. But…that’s not the law. The Judge is there to ensure justice. The Judge has the discretion to deny the motion, even if both parties agree, and in the interests of justice, he has every right to inquire why, after two guilty pleas, the government would suddenly seek dismissal.

    1. The basis for the proposed Flynn dismissal is 1) no materiality of Flynn’s alleged lies–materiality being a necessary element of the offense(s) to which he pleaded guilty; 2) prosecutorial misconduct/Brady violations which I feel is far more important. Barr should be willing to bring up the prior prosecutors, who committed the Brady violations, on ethics charges, but to date, has not been willing. This obviously hurts the argument on behalf of Flynn/Barr that the prosecutorial misconduct (by prior prosecutors on the Flynn case) was a significant enough “manifest injustice” to permit withdrawal of the guilty plea or outright dismissal of the prosecution. Typically, however, undisputed Brady violations which are material to the prosecution are more than sufficient reason to permit withdrawal of a guilty plea and/or outright dismissal of the case, in the prosecution’s discretion. The prior prosecutor’s on the case withheld FBI documents such as “302” forms in which the FBI agents themselves stated they didn’t think Flynn lied. Had these critical documents been provided to Flynn’s prior defense attorneys–as they clearly should have been, as they are clearly “exculpatory” Brady material–it surely would have impacted his decision to enter a guilty plea (both times). Another obvious grounds to permit him to withdraw his plea (at a minimum, even if the prosecution is to proceed, which is a distinct issue) would be ineffective assistance of his prior defense counsel. I’m sure his current defense counsel is addressing all of the above and more, and you would have to readt the actual legal briefs (which I haven’t) for more clarity.

      1. Powell already alleged prosecutorial misconduct and Sullivan already ruled against it in his Dec.16, 2019 ruling.
        The 302 from the 1/24/17 interview *was* provided to Flynn. Don’t confuse the date on which it was made *public* with the date that it was provided to *Flynn and his counsel*.
        Shea has claimed that Flynn’s false statements aren’t materially false, but the DOJ had previously claimed that they *were* materially false, and Sullivan had ruled in agreement. The DOJ hasn’t explained its change of opinion about the materiality, and I hope that in the hearing, Sullivan asks about that.

        That hearing has now been scheduled for the end of the month.

      2. Nothing you say changes the fact that Flynn DID lie, he admitted to lying under oath, or that Barr’s motivation, including his perception of the situation, is all politically-based. There is nothing truly exculpatory in the documents you cite–just more spin. A Brady violation would have to be significant enough to change the outcome of the case, and the documents allegedly withheld wouldn’t do this, because FLYNN DID LIE. When asked why he was pleading guilty, he replied: “I’m pleading guilty because I am guilty.” Everything else you list is just Fox News spin. And…don’t forget the other Fox News spin: we should feel sorry for Flynn because his high-priced attorneys were bankrupting him and he was going to lose his house and his son might also go to jail. He was represented by competent counsel, and that fact does not change because Trump got Barr to agree to dismiss the charges and Kellyanne, vis a vis Fox News, came up with a strategy to make Flynn appear to be a victim instead of the unapologetic liar/Russia colluder that he is. FLYNN DID LIE, and his lawyers were not incompetent for recommending a plea deal. The ineffective assistance of counsel claim won’t fly, either.

    2. Temerity? Ha, are we supposed to get down and lick the article III tyrants’ wingtips and kiss the hem of their robes now, in addition to suffering their “lifetime tenure” and so many other perquisites of power?

        1. Article III scoundrels should be impeached and the Constitution should be amended to clip their wings.

  15. So not to sound too stupid, but why is it that there’s no attorney-client privilege for McGahn? (I have the same question or concern regarding Cohen too.) If this privilege is so easily pierced or violated, then why should anyone ever trust any attorney? And why is Turley so eager that this privilege be violated?

    1. McGahn is not Trump’s personal attorney and has a higher responsibility to the government of which he is a member.

      1. McGahn was acting the attorney for someone, or something, even if not “Trump’s personal attorney,” and therefore, that someone or something would have had to have waived privilege. McGahn is not allowed to waive the privilege on the client’s behalf–whoever or whatever the “client” actuall is. (I believe it’s the Office of the Presidency, which Trump has the authority to waive privilege for, since he’s the President. Not sure though.)

        1. Again: there’s a crime-fraud exception to attorney-client privilege. No one has to waive the privilege for that, because it doesn’t exist in the first place. McGahn may end up saying that he can’t answer some questions because they’re privileged, but that doesn’t imply that he can’t answer any questions at all. Trump may also have waived privilege by talking about some of this in public.

      2. So By the Book does who pay determine who has the privilege?

        And what if the privileged conversation concerns foreign affairs and similar? Can committee Congressmen beholden to a foreign entity pierce that privilege?

    2. McGahn was WH counsel, not Trump’s personal attorney. And attorney-client privilege isn’t absolute. There’s a crime-fraud exception, if “legal advice was used in furtherance of an illegal or fraudulent activity” (ABA); “the crime-fraud exception applies if: the client was in the process of committing or intended to commit a crime or fraudulent act, and the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up” (Nolo).

    3. privilege is almost always a qualified right. in civil suits it can be put aside by court order when there is no other way of getting to the relevant information.

      there’s also a thousand ways to waive it. like when mcveigh attacked his lawyer stephen jones on 60 minutes once he was convicted. he waived confidentiality and jones went full out on proving that he did a good job for mcveigh, in his book “others unknown” which is a very interesting read DV i recommend it if you are interested in high stakes trials

  16. Good time to ask the question WHY since DC has a paltry population and is not a State given that high status? Precinct Court maybe if there is such a thing but even that cannot be supported without denying rights of the 50 nationSTATES in our Constitutional Republic.

    1. There are more people living in DC than in the entire state of Wyoming, so it’s odd that you call that a “paltry population” (in fact, the DC population exceeds the population of WY by more than 100,000 people).

      And the DC federal courts have status because they deal with so much that involves the federal government. The existence of the DC courts doesn’t deny any state rights.

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