The White House on Monday directed former White House Counsel Don McGahn to defy a subpoena to testify before the House Judiciary Committee on Tuesday, and the Justice Department released a corresponding legal opinion arguing that McGahn is not obligated to answer lawmakers’ questions.
The move deals a blow to House Democrats, who have sought testimony from McGahn after special counsel Robert Mueller’s report detailed President Donald Trump’s efforts to shut down the Russia probe.
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“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,” White House Press Secretary Sarah 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.”
Though the new opinion draws heavily on directives drafted in previous administrations, the 15-page Office of Legal Counsel memo incorporates some of the president’s broader legal arguments against congressional oversight — a signal that it views the fight to block McGahn’s testimony as part of a bigger effort to resist congressional scrutiny.
“Coercing senior presidential advisers into situations where they must repeatedly decline to provide answers, citing executive privilege, would be inefficient and contrary to good-faith governance,” the new opinion reads. “The president’s immediate advisers, if compelled to testify, are unlikely to answer many of the members’ questions, suggesting that the hearing itself will not serve any legitimate purpose for the committee.”
The opinion, authored by Assistant Attorney General Steven Engel, also states: “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”
McGahn’s attorney, William Burck, did not immediately respond to requests for comment. A spokesman for the Judiciary Committee did not immediately comment.
Judiciary Committee Chairman Jerry Nadler (D-N.Y.) told Burck earlier this month that he would move to hold McGahn in contempt of Congress “unless the White House secures a court order” blocking McGahn from complying with the subpoena. The committee’s subpoena sought documents and public testimony from McGahn.
On Monday, Nadler said the committee expects McGahn to testify and will convene as scheduled.
“This move is just the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this Committee,” Nadler said of the White House’s instruction to keep McGahn from testifying.
Earlier this month, McGahn refused to turn over the requested documents after the White House instructed him not to comply with that part of the subpoena.
Rep. Doug Collins of Georgia, the top Republican on the Judiciary Committee, latched onto the new Justice Department opinion and noted that McGahn’s claims are outlined in the Mueller report.
“What better way to ensure we don’t hear from McGahn this week than by subpoenaing a witness who’s categorically immune from testifying? Thankfully, McGahn’s testimony is in Vol 2 of the #MuellerReport, 99.9% of which is available to the chairman, should he ever choose to read it,” Collins wrote on Twitter.
A less-redacted version of the report is available to Nadler, Collins and 10 other lawmakers, but Nadler has not viewed it out of protest of the restrictions placed by the Justice Department.
The Judiciary Committee kicked off a wide-ranging investigation in March into Trump for allegations of obstruction of justice and abuses of power. McGahn is emerging as a central witness in the committee’s probe, after Mueller’s report outlined Trump’s directives to McGahn to shut down the Mueller probe.
At its core, the new opinion argues that current and former advisers to the president must be equally immune from congressional subpoenas for testimony.
“[The] risk to the separation of powers and to the President’s autonomy posed by a former adviser’s testimony on official matters continues after the conclusion of that adviser’s tenure,” Engel argued. “Mr. McGahn’s departure as Counsel to the President does not alter his immunity from compelled congressional testimony on matters related to his service to the president.”
The new opinion also takes direct aim at Nadler’s argument that McGahn is not bound by executive privilege from discussing his testimony to Mueller. Nadler has suggested that Trump waived executive privilege when he permitted McGahn to testify to Mueller without restriction — and elements of that testimony ended up in Mueller’s public report without any executive privilege claim.
But the new opinion argues that the president’s decision to authorize McGahn to disclose information to Mueller does not waive his immunity from testifying. “To the contrary, presidents have frequently authorized aides to share information as an accommodation to Congress, notwithstanding claims of immunity,” the office wrote.
The OLC opinion also indicates that Congress is unable, legally, to attempt to invoke inherent contempt against McGahn. Inherent contempt, which has become an increasingly favored strategy for House Democrats, despite decades of disuse, is an effort by Congress to unilaterally enforce its own subpoenas by levying fines to potential witnesses or throwing them in jail.
“The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of a presidential assertion of executive privilege,” Engel writes, signaling a potential court fight should Congress pursue this strategy.
The new Justice Department opinion issued Monday builds upon an earlier one drafted in 2014 under the Obama administration.
“The executive branch’s longstanding position, reaffirmed by numerous administrations of both political parties, is that the president’s immediate advisers are absolutely immune from congressional testimonial process,” according to the 2014 opinion. “This immunity is rooted in the constitutional separation of powers, and in the immunity of the president himself from congressional compulsion to testify.”
That opinion noted that the federal court in Washington had previously ruled that a “former counsel to the president” was “not entitled to absolute immunity from congressional compulsion to testify.” But the Obama Justice Department argued that this ruling was erroneous.
“[W]e believe those cases do not undermine the executive branch’s longstanding position that the president’s immediate advisers are immune from congressional compulsion to testify,” according to the opinion. “We therefore respectfully disagree with the … court’s analysis and conclusion, and adhere to the executive branch’s longstanding view that the president’s immediate advisers have absolute immunity from congressional compulsion to testify.”
Darren Samuelsohn contributed to this story.