WASHINGTON: The White House moved to shield former Counsel Don McGahn from testifying before Congress, asserting a broad immunity to compelled testimony as Democrats investigate President Donald Trump’s efforts to curb Special Counsel Robert Mueller’s Russia probe.
“Because of this constitutional immunity, and in order to protect the prerogatives of the Office of the Presidency, the president has directed Mr. McGahn not to appear at the committee’s scheduled hearing on Tuesday, May 21, 2019,” White House Counsel Pat Cipollone wrote Monday in a letter to House Judiciary Chairman Jerrold Nadler.
The move escalates a battle between the White House and Congress over lawmakers’ authority to investigate the president following the conclusion of Mueller’s probe. Earlier this month, the administration told McGahn not to turn over documents the House Judiciary Committee had subpoenaed in April, and asserted executive privilege over all of Mueller’s investigative documents sought by Democratic lawmakers.
Trump told reporters outside the White House that McGahn’s testimony was being blocked “for future presidents” and “not for me.”
Democrats have said they need to hear from McGahn to learn more about several incidents Mueller investigated to see whether Trump had tried to obstruct justice. The committee could decide to hold McGahn in contempt if he decides to follow the White House’s instructions and decline to appear.
“This move is just the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this committee,” Nadler of New York said in a statement. “It is also the latest example of this administration’s disdain for law.”
He said his committee will meet as planned on Tuesday morning “and Mr. McGahn is expected to appear as legally required.”
If McGahn doesn’t show, Democratic committee member David Cicilline of Rhode Island said a formal impeachment inquiry should be opened. Cicilline, who hadn’t previously joined those ready to pursue that option, said in an interview that “it may be an impeachment inquiry will strengthen our hand significantly in our effort to bring witnesses before our committee and collect documents.”
But the Justice Department said Monday that “Congress could not lawfully exercise any inherent contempt authority against Mr. McGahn for asserting immunity” because he would be complying with a lawful “presidential direction that he not provide testimony.”
It wasn’t immediately clear how McGahn would respond. The White House doesn’t have authority to stop him from appearing if he so chooses.
The Justice Department published a new legal opinion addressing immunity with respect to McGahn’s testimony to Congress.
The Justice Department’s memo on immunity from congressional subpoena
“The immunity of the president’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognised and arises from the fundamental workings of the separation of powers,” the department said.
The immunity claim that the White House is invoking for McGahn’s testimony was used under Presidents Barack Obama and George W. Bush. In one case, Bush’s Justice Department argued that former White House Counsel Harriet Miers was immune from a subpoena related to the firings of several US attorneys. During the Obama administration, the department suggested White House aide David Simas shouldn’t be compelled to testify about potential Hatch Act violations.
“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,” Obama’s Justice Department wrote in a July 2014 memo.
The Justice Department’s Office of Legal Counsel said the immunity from testimony is distinct from – and broader than – a claim of executive privilege, saying “the immunity extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser.”
McGahn emerged as a central figure in Mueller’s report on whether Trump obstructed the Russia probe. The former White House counsel, who spoke with Mueller with permission of Trump’s lawyers, provided Mueller a detailed account about an attempt by Trump to have the special counsel removed from his post.
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The White House tried to get McGahn to say publicly that he didn’t think Trump obstructed justice but McGahn had declined to do so, the Wall Street Journal reported this month. After that report, Trump said on Twitter that he was “never a big fan” of McGahn, and that McGahn had been at greater risk of being fired than Mueller.
The House Judiciary Committee subpoenaed McGahn for the records and testimony last month, setting a May 7 deadline to comply with the records request. Cipollone responded to the committee in a letter telling it to redirect the subpoena to the White House. The letter also said White House Acting Chief of Staff Mick Mulvaney instructed McGahn not to hand over the records.
“The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with the clear understanding that the records remain subject to the control of the White House for all purposes,” Cipollone said.