The latest shipment of quasi-legal manure from the Department of Justice*'s pastures comes as the House of Representatives was preparing to hear from Don McGahn, former White House counsel and a guy who spent 30 happy hours chatting with Robert Mueller's folks, and whom, according to their report, was tasked by the president* to fire Robert Mueller his own self. McGahn no longer works in the White House, and, therefore, the White House cannot direct him to tie his shoes, let along ignore congressional subpoenas.

But, to the surprise of absolutely nobody, that's precisely what the White House has done, and the Department of Justice* backs up that decision with yet another innovative legal theory by which Al Capone might have died in his bed. From the Washington Post:

The 15-page legal opinion written by Assistant Attorney General Steven A. Engel argues McGahn cannot be compelled to testify before the committee, based on past Justice Department legal opinions regarding the president’s close advisers. The memo says McGahn’s immunity from congressional testimony is separate and broader than a claim of executive privilege.

“This testimonial immunity is distinct from, and broader than, executive privilege,” Engel wrote, arguing that the immunity “extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser – as a function of the independence and autonomy of the president himself.” That immunity, the memo insists, does not evaporate once the adviser in question leaves the government, because the topics of interest to Congress are discussions that occurred when the person worked for the president.

The whole cloth out of which this theory is made can be found in one of its first sentences.

Congress may not constitutionally compel the president's senior advisers to testify about their official duties.

One might logically inquire if the DOJ is here stipulating that criminal obstruction of justice were part of McGahn's "official duties." And the opinion sails off to the Planet Bafflegab when it claims that McGahn still enjoys this dubious "immunity" even though he doesn't work in the White House anymore.

Former White House Counsel Don McGahn, left, has had some wild ride through Trumpland. Tom Williams Getty Images

But, I happen to have the late Chief Justice Warren Burger right here, and he has some thoughts to share.

In the performance of assigned constitutional duties, each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id. at 5 U. S. 177. No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution.

—U.S. v. Nixon, July 24, 1974.

The claim of privilege asserted by the Department of Justice is breathtakingly far beyond even the claims asserted by the Nixon White House. Of course, back then, at least in 1974, the DOJ wasn't completely in the bag, and the Senate wasn't in the hands of a majority made up of puppets and salamanders. Either the claims of this administration* stand, or the Constitution does. It's that simple.

However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

—U.S. v. Nixon, July 24, 1974

The Constitution will see them in court.

Respond to this post on the Esquire Politics Facebook Page here.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

This content is created and maintained by a third party, and imported onto this page to help users provide their email addresses. You may be able to find more information about this and similar content at piano.io