With testimony from the president’s top lawyer, the special counsel is in no position to claim he needs to speak with Trump.
National Review
by Andrew C. McCarthy
8/20/2018
Excerpt:
For months, these columns have contended that, on the question whether President Trump should agree to a request by Special Counsel Robert Mueller III for an interview, the burden of persuasion has been imposed on the wrong party. That is, the president should not even be asked to submit to questioning at this point; the prosecutor must first establish that the president (1) is implicated in a serious crime and (2) has information or evidence that the prosecutor is unable to obtain from any other source.
That argument is bolstered by this weekend’s New York Times report that, with the president’s consent, Mueller’s team has conducted 30 hours of interviews with White House counsel Donald F. McGahn II. Having secured testimony from the president’s top lawyer, the special counsel is in no position to claim that he needs the president’s own testimony.
The president’s consent to make McGahn available to prosecutors is extraordinary, as it involves waiving both executive privilege and attorney–client privilege. As to the latter, some claim that there is no real waiver involved because McGahn purportedly represents “the presidency” in the abstract, not the actual incumbent. (The Times pushes this line, claiming that McGahn “viewed his role as protector of the presidency, not of Mr. Trump.”) This is nonsense. McGahn’s client is the president in the latter’s official capacity — in contrast to Trump’s private lawyers (Rudy Giuliani and Jay Sekulow).
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