The Trump administration indicated Monday it wants to block former White House counsel Don McGahn from testifying before the House Judiciary Committee.
In a letter to committee chairman Rep. Jerry Nadler (D-N.Y.), current White House counsel Pat Cipollone said McGahn is “absolutely immune” from being compelled by Congress to testify about his time as White House counsel.
“There is no question that the position of Counsel to the President falls within the scope of the immunity,” the letter said. “The constitutional immunity of current and former senior advisers to the President exists to protect the institution of the Presidency and, as stated by Attorney General [Janet] Reno, ‘may not be overborne by competing congressional interests.’”
The letter cited a written opinion, issued Monday by the Justice Department’s Office of Legal Counsel, stating that the House Judiciary Committee could not compel McGahn to testify.
The question of whether McGahn “need comply with a subpoena purporting to require an appearance is different from the question [of] whether the adviser’s testimony would itself address privileged matters,” reads the memo from the Office of Legal Counsel. “Therefore, the public disclosure of the Special Counsel’s report does not have any legal bearing upon the force of the congressional subpoena.”
McGahn is an important witness to some of the most troubling activity outlined in the second volume of special counsel Robert Mueller’s report, which focused on the question of whether Trump obstructed justice. The report mentions an instance where McGahn said the president directed him to fire Mueller as special counsel.
The OLC’s memo says that McGahn’s “departure as Counsel to the President does not alter his immunity from compelled congressional testimony on matters related to this service to the President.” The public disclosure of the redacted Mueller report “did not constitute a general waiver concerning Mr. McGahn’s communications with the President on those subjects or any other subjects,” the memo says.
The House Judiciary Committee issued a subpoena last month for McGahn as part of its investigation into Trump’s potential obstruction of justice in the Russia probe. The subpoena demanded that McGahn testify before the committee and supply documents related to several incidents described in Mueller’s redacted report.
The White House subsequently ordered McGahn not to comply with the committee’s documents request. White House acting chief of staff Mick Mulvaney said earlier this month that the documents “implicate significant Executive Branch confidentiality interests and executive privilege,” McGahn’s lawyer William Burck told The Wall Street Journal.
On Monday, White House press secretary Sarah Sanders claimed the White House “has been completely transparent” with Mueller’s investigation.
“The Department of Justice has provided a legal opinion stating that, based on long-standing, bipartisan, and Constitutional precedent, the former Counsel to the President cannot be forced to give such testimony, and Mr. McGahn has been directed to act accordingly,” Sanders said in a statement. “This action has been taken in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the Presidency.”
Nadler responded to the White House’s decision later on Monday, saying the committee would “convene as planned tomorrow morning, and Mr. McGahn is expected to appear as legally required.”
“It is absurd for President Trump to claim privilege as to this witness’s testimony when that testimony was already described publicly in the Mueller Report,” Nadler said in a statement. “Even more ridiculous is the extension of the privilege to cover events before and after Mr. McGahn’s service in the White House.”
Nadler’s statement didn’t say how the committee will proceed if McGahn does not appear on Tuesday, though Nadler has previously mentioned the possibility of holding him in contempt. The Justice Department’s memo on Monday said Congress can’t hold someone in contempt for invoking immunity under the current circumstances.
Trump told reporters later on Monday that his counsel is attempting to block McGahn’s testimony “for the office of the presidency.”
“I think it’s a very important precedent,” Trump said. “The attorneys say that they’re not doing it for me, they’re doing it for the office of the president. We’re talking about the future.”
This article has been updated with information about Trump’s comments and Nadler’s statement.