The White House Can 'Instruct' All It Wants. If Subpoenaed, Hope Hicks Must Testify. Or Go to Jail.

For the love of the living god, will someone in the Democratic congressional leadership remember where somebody put the handcuffs?

There is no legal principle under which Hope Hicks and Annie Donaldson can be "instructed" not to comply with congressional subpoenas either for documents or for their own selves. There is no constitutional root cellar in which they can be hidden. Go start hauling people off, please. From the Washington Post:

The House Judiciary Committee last month issued a compulsory measure to one of Trump’s closest staffers and longtime aides, Hicks, and Donald McGahn’s staffer, Annie Donaldson, as part of its expansive probe into potential abuse of power, public corruption and obstruction. Both faced a Tuesday deadline to turn over documents and have been subpoenaed to appear for testimony later in June.

In a statement, Rep. Jerrold Nadler (D-N.Y.), committee chairman, said the two were told not to cooperate. “As part of President Trump’s continued obstruction of Congress, the White House has instructed both Hope Hicks and Annie Donaldson not to turn over records in response to subpoenas issued by our committee last month,” Nadler said. “I note that Ms. Hicks has agreed to turn over some documents to the committee related to her time working for the Trump campaign, and I thank her for that show of good faith.”

Swell. Now turn over everything we asked for or you're going to the sneezer.

The White House advised Nadler that Hicks and Donaldson cannot provide records that are the property of the White House, according to a White House official who spoke on the condition of anonymity to freely discuss private deliberations. White House Counsel Pat Cipollone sent a letter Tuesday to Nadler explaining that acting White House chief of staff Mick Mulvaney had directed Hicks and Donaldson not to provide records or information that involve executive branch material and their time in the White House, the official said.

"Because we said so" is not an assertion of legal privilege. "Because Mick Mulvaney said so" is even less of one.

Donaldson famously fretted in her West Wing diary “is this the beginning of the end?” when Trump insisted on firing Comey in May 2017 and on mentioning the president was not a subject of the Russia investigation in his public termination letter. She and McGahn both believed his mention of the Russia probe could be viewed as evidence he was engaged in obstruction of justice. She also described McGahn’s repeated efforts to try to protect Trump from his worst impulses and the case he was building against himself in various ways. That included when he sought to call the Justice Department himself and tried to improperly pressure Attorney General Jeff Sessions to “unrecuse” and resume control over the investigation.

Under U.S. v. Nixon, this isn't even a close call. Executive privilege isn't ironclad, nor is it infinitely malleable. And, finally, it's not an alibi.

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