Court Battle Over Congressional Subpoena?
Christi: Again, just to reiterate, this week, “The New York Times” reported President Trump ordered a security clearance for his son-in-law Jared Kushner. This is over the objections of other White House staffers. The Congressional reaction to that report was immediate. The Chairman of the House Oversight Committee says he wants to see White House documents on this decision by Monday. What comes next on the legal front? Constitutional attorney Page Pate with us now. So, let’s talk about that.
Christi: They’re saying they want to see the documentation. If the White House does not produce that by Monday, what is the consequence?
Page: Well, ultimately, we may end up in court. And I’ve always wondered when this is going to happen. Obviously, we now have a very aggressive Democratic-led Congress. They want to investigate a lot that’s been going on at the White House. They’re making requests. Eventually, they may have to issue subpoenas. But what happens when the White House says, “No, we’re not going to participate in this?”
Well, it’s complicated because, normally, when Congress wants to enforce a subpoena, they go to the Department of Justice and they get the cooperation of the Department of Justice to go to court and require the person who received that subpoena to respond to it. But are we gonna see that cooperation when it involves the White House? It’s going to end up in court to determine whether Congress really has the authority to get a lot of these documents and testimony that they’re requesting.
Christi: All right, I also wanna ask you about Paul Manafort, because we had Representative Gerry Connolly of the Oversight Committee saying, “It seems as though Paul Manafort, at this point, is fishing for a pardon.” Do you see elements of that?
Page: He’s been fishing for a pardon since day one, I think. I think that’s the reason he went to trial in Virginia. There was really no solid, legal defense to some of the tax fraud and bank fraud allegations that he was facing. He knew he was looking at a lot of time. But I think, always, he believed, at the end of the day, the President was gonna issue him a pardon. Now, why is it taking so long?
I think they’re concerned, potentially, about state criminal charges, and the President cannot pardon someone for state criminal charges, only federal charges. So perhaps Paul Manafort’s thinking, “I’m gonna get my sentence. I’m gonna do some time. But once that statute of limitations period runs, once the states can do no more to charge me,” then I think we’re gonna see a pardon.
Christi: What is that statute of limitations?
Page: It depends on the crime, but usually about five years. So we may see him sit for a couple of years in prison. But I do anticipate, eventually, we’ll see the President pardon him.
Christi: All righty. And then, the FBI, of course, says that releasing any information that is related to Comey, the Comey memos, which, you know, this is coming from a new court filing where CNN is trying to get those release, the FBI says, “Look, that’s gonna compromise the Mueller investigation.” Is there credence in that?
Page: It could be. I mean, we don’t know what’s in the memos and we don’t know exactly where Mueller is in his investigation. I mean, we’ve heard reports they’re about to issue their final report. It’s about to go to the Department of Justice, to the new Attorney General. But we don’t know. And that’s gonna really be interesting for me to see, other lawyers who are watching this, especially people that are concerned about transparency in government, how much of this investigation are we going to know about?
Congress is gonna try to get at it if we don’t hear it from the Department of Justice, but we’re gonna see this same issue pop up. Congress cannot compel the Department of Justice to provide them with this full memo. So…
Christi: Oh, we know Michael Cohen is gonna be talking again to the House Intelligence Committee this week. This will be the fourth meeting he has…
Christi: …in a week’s time. Did you see any of, you know, his testimony…
Page: I did.
Christi: …this week?
Page: Absolutely, yeah.
Christi: So what was your takeaway?
Page: Well, I think he’s presented further evidence that the President and some of the people in his close circle may be involved in criminal conduct. We have known that the Southern District of New York, pursuing investigations that relate to people very close to the President, and individual one himself, which we now know is the President. I think there is clear evidence that there are campaign finance violations that occurred here. But perhaps the Southern District is saying, “Look, it’s Department of Justice policy we can’t prosecute a President.” So I don’t know how much more of an investigation they’re gonna pursue.
Christi: So I wanna ask you about that because, again, Representative Connolly said, I think it was on Wednesday or Thursday, he was talking about the optics of hearing from the family. Because, of course, now, the Committee wants to hear from Ivanka and Don Jr. And he was saying, you know, two subjects of the criminal probe in, of these people are in the Southern District of New York. And he says, “It may be better to let that play out before the Committee and talk to them afterwards.” What is your thought process on that?
Page: That makes sense. I think, normally…and they’ve done this so far. Congress is trying to keep their investigation on one track and not interfere with criminal investigations. Because at the end of the day, if they do anything, if Congress does anything to upset, interfere, I wouldn’t say obstruct, but in some way affect the criminal investigation before it’s completed, it could jeopardize that investigation.
Christi: Real quickly.
Page: Because these people don’t wanna talk publicly…
Page: …until they’ve resolved their criminal case.
Christi: But real quickly, because we have to go, but at the end of the day, how vulnerable is the President, based on what we know so far?
Page: I think very vulnerable, but that doesn’t mean anything’s gonna happen to him in the Office. I mean, we’ve heard people suggest that the Southern District is preparing this case to indict him once he leaves office. That’s possible. They could indict him, put it under seal, put it on pause. We won’t know until we know, which will probably be after he leaves Office.
Christi: All righty. Page Pate, always appreciate your insight. Thank you…
Page: Thank you, Christi.
Christi: …for being here. Phil.
Phil: All right, [inaudible 00:05:21]…
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.