Did Trump Waive Executive Privilege over McGahn’s Congressional Testimony?

The House Judiciary Committee served former White House Counsel Don McGahn with a subpoena, available here, to produce several documents on May 7, 2019 and appear for sworn testimony on May 21, 2019. The topics primarily relate to McGahn’s knowledge and comments detailed in the Meuller Report’s obstruction-of-justice section. The HJC no doubt wants to explore McGahn’s presidential conversations in more detail.

The Washington Post reported that the White House would assert executive privilege to prevent McGahn’s testimony. According to the New York Times, HJC Chairman Jerrold Nadler said that this assertion would “represent one more act of obstruction by an administration desperate to prevent the public from talking about the president’s behavior.” The White House did not back down—yesterday, April 28, 2019, Counselor to the President Kellyanne Conway told CNN that asserting privilege over McGahn’s testimony was “always an option.”

But has the President already waived executive privilege such that the HJC has no boundaries when it questions McGahn (if it ever does)? Some law professors, as quoted in this Associated Press report, think so, but precedent from the Nixon, Clinton, and Bush43 administrations cautions against immediate conclusions.

McGahn Testified—Waiver?

McGahn provided 30 hours of testimony to investigators during the Mueller investigation, and the Mueller Report contains portions of that testimony. The President, as confirmed in this tweet, allowed McGahn to voluntarily appear for the interviews with no restrictions on his testimony.

Barr Confirms Non-Assertion of Executive Privilege—Waiver?

After General Barr sent Congress his Mueller Report summary, available here, but before releasing the Mueller Report, he gave a short press conference. Barr confirmed that More…