practices appellate and constitutional law. he was under president reagan and george h. w. bush. welcome, david, great to see you. good to be with you. paul: let s start don mcgahn. the white house claim of a testimonial privilege. he doesn t even have to appear under the constitution because of the separation of powers. is that justified? it is justified, when message to chairman nadler, congressional power to obtain evidence, the context of oversight or impeachment is not unlimited. it is all because of transitional powers the case is compelling. first of all paul, we re talking about discussions between white house counsel.e there in the sweet spot, all forms of testimony and executive privilege. it is the most i can repair the other argument that s very interesting that is somewhat
more complex were also very compelling, what are they doing this for?not really for oversight purposes because oversight power r is by literac power are we going to legislate things a president can discuss with white house counsel? no. what they really trying to do, this article impeachment sub rosa. like mueller to testify or don mcgahn to testify or get documents that twould justify the mueller investigation. to try to find some way of according atpaul: they want to prove a obstruction of justice. evading their own accountability. instead of making the case themselves based upon the evidence they develop they want to say robert mueller tacitus and don mcgahn attested to this. this article outsourcing impeachment power but is also
subpoena, even to a senior presidential advisor, the witness must show up. our subpoenas are not optional. paul: that was house judiciary chairman, there another tuesday after former white house counsel don mcgahn failed to appear at hearing before his committee. the day earlier the white house directed to defy a subpoena to testify send the justice department opinion of the president senior advisors cannot be compelled to answer questions about their official duties. it is just the latest chapter in the ongoing legal battle between house democrats seeking access to witnesses and mp documents related to the mueller probe as well as the president financial dealings.
in order to enforce this, they would first ask doj to enforce it. doj would not do that. so the house can go litigate soul contempt on its own. in the district court. my prediction they would lose. we talking about is very important for viewers to appreciate about imperial congress. congress is pushing beyond that out of boundaries. it is oversight powers and impeachment powers which a letter acknowledging their doing. i think they would lose. i think it would be thrown out this way. paul: they were a couple of other cases of subpoenas with white house challenge them donald trump challenge one about the president s, the trump organization bank with deutsche bank and another by khis accounting records. and the lower courts this week sided with congress on the subpoenas. does congress have a stronger case on those issues than it did with don mcgahn? t out think so. it s a somewhat different case because they are, we really are
unconstitutional. paul: we heard from nadler and others at the present forfeited executive privilege because he allowed don mcgahn to his 530 hours to robert mueller in a special counsel probe. frankly it is a silly argument. you do not forfeit executive privilege, paul, i committee with members of executive branch. he was in the department of justice. nadler was correct in that every time he goes from interagency process, one department talks to another, one official talks to another, you forfeit the privilege. that is a silly argument. he knows better than that. paul: what if the house goes ahead and threatens sscontempt they say, against mr. don mcgahn, can he enforce it? there s enforcement back to y that dates mid-19th century. they could try to send the surgeon on arms to try and seize mr. gamcgahn. i very much doubt. believe it or not there is some statements by more junior house members that might do that it