Don McGahn won’t comply with House Democrats’ subpoena

According to Robert Mueller’s report, Don McGahn told investigators that President Donald Trump instructed him to tell Deputy Attorney General Rod Rosenstein to fire Mueller. | Saul Loeb/AFP/Getty Images

Former White House Counsel Don McGahn is refusing to comply with a congressional subpoena for documents related to special counsel Robert Mueller’s investigation, deferring to a last-minute instruction from the White House to disregard House Democrats’ demands.

William Burck, McGahn’s attorney said that his client would defy the committee’s subpoena for documents that were due by Tuesday as part of the panel’s investigation into allegations that President Donald Trump obstructed justice.

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“The committee seeks to compel Mr. McGahn to produce White House documents the executive branch has directed that he not produce,” Burck wrote in a letter, obtained by POLITICO, to House Judiciary Committee Chairman Jerry Nadler (D-N.Y.).

“Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the committee and the executive branch can reach an accommodation,” Burck added.

The committee’s subpoena to McGahn also demanded that he testify publicly on May 21. A source involved in the negotiations said the White House’s request only applies to documents and is silent on whether McGahn would be permitted to testify in public later this month.

Nadler’s office did not immediately respond to a request for comment. Democrats have argued that because McGahn already provided voluminous testimony and documents to Mueller — much of which has already been made public — executive privilege no longer applies.

But McGahn’s successor as White House counsel, Pat Cipollone, indicated to Burck earlier Tuesday that the White House considers documents in McGahn’s possession to be subject to executive privilege and that any discussion about sharing them with Congress should be between lawmakers and the White House.

“The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant executive branch confidentiality interests and executive privilege,” Cipollone wrote to Burck on Tuesday. “For these reasons, the Acting Chief of Staff to the President, Mick Mulvaney, directs Mr. McGahn not to produce these White House records in response to the committee’s April 22 subpoena.”

The White House’s intervention in McGahn’s testimony is the latest skirmish in a broader effort to defy Democratic investigators’ demands for documents and testimony that the president and his Republican allies have said amounts to a political witch-hunt.

McGahn delivered some of the most damning testimony in Mueller’s investigation of whether Trump attempted to obstruct the probe of his 2016 campaign’s links to the Russian government.

His testimony, combined with notes from his deputy Annie Donaldson, portrayed a White House in chaos, a president fuming at the special counsel investigation and repeatedly attempting to disrupt the probe.

Jordyn Hermani contributed to this report.