What’s Going on Here? #2 by Editors’ Blog – Talking Points Memo / by Josh Marshall

What’s Going on Here? #2

Editors’ Blog – Talking Points Memo / by Josh Marshall / 1h

Earlier I noted the mystery of just why this National Security Council staffer is going to testify before the impeachment inquiry next week. Tim Morrison is clearly defying the wishes of the White House and the President. But they can do more than wish. Or they should be able to. Something doesn’t fit. Now the Posthas long piece covering similar ground. But to me it still leaves the mystery unanswered.

There are a few possible answers but none are really satisfying. The Post says that the House is getting these people to testify “largely because attorneys for officials who have been called for depositions concluded that the White House’s legal arguments are weak compared with a congressional subpoena.”

But that doesn’t really answer the question. The House’s legal standing almost certainly isstronger. But that doesn’t mean you don’t fight it out, especially this White House and especially with this much at stake.

As I noted and as I think most lawyers would agree, the White House has pretty solid standing to at least argue that they can shield staffers on the National Security Council from testifying on the basis of executive privilege. I’m not saying they’d win. Given the evidence of wrongdoing already on the table and the fact of a formal impeachment inquiry I kind of doubt they would. But it’s not a frivolous argument. Even slowing down the pace of revelations would be a positive at this point.

The surprising answer seems to be that the White House just hasn’t tried to invoke executive privilege.

Some folks around the White House seem a bit stunned by this too.

A number of outside advisers are perplexed that the White House hasn’t filed an injunction or taken some other legal step to stop the parade of officials sharing what they saw and heard.

“Many Trump allies are concerned and don’t understand the strategy of not filing an injunction,” said Jason Miller, an informal Trump adviser. “It’s a head-scratcher. President Trump and the administration have clearly said they don’t want folks participating in this sham process and stepping all over presidential privilege.”

Miller is one of the more comical figures in the Trump orbit. I don’t think he’s a lawyer. So I don’t know what authority he really speaks with on this issue. But it’s a good question: why aren’t they at least trying?

I can’t say why this is the case. But it looks like the White House went out with these totalizing, over-the-top arguments about the impeachment inquiry not even being real (no vote of the full house, etc.), illegitimate, unconstitutional, etc. (Remember that massive resistance letter from White House Counsel Pat Cipollene back on October 8th.) But as pretty much everyone agreed at the time, these were political arguments. As legal arguments they ranged from far-fetched to absurd.

It seems like these people’s lawyers looked at these arguments that are mainly just legal bombast and decided the White House was not really giving their clients any leg to stand on. So they decided to honor the subpoenas. But again, how can it be that simple? How can the White House’s stance be so low-energy and inert?

Perhaps the other answer is that these people – mainly not Trump diehards know that the situation is very bad and just want to wash their hands of it. That, again, seems like a much more plausible global explanation. But it still doesn’t explain the White House’s failure to at least try what seems like pretty basic blocking and tackling.

It still doesn’t add up.