WASHINGTON – The White House has instructed its former top lawyer, Don McGahn, not to testify before Congress about President Donald Trump's efforts to thwart the special counsel investigation of Russian interference in the 2016 election.
The instruction came after the Justice Department told White House lawyers that McGahn could not be forced to testify even after lawmakers issued a subpoena. It is the latest in a series of clashes between Trump and lawmakers seeking to investigate him.
The House Judiciary Committee had summoned McGahn, the former White House counsel, to appear at a hearing Tuesday morning. McGahn provided prosecutors hours of testimony about Trump's efforts to stymie special counsel Robert Mueller's investigation, and Democrats who lead the committee wanted to press him to detail those episodes in public.
McGahn’s lawyer, William Burck, said in a letter to Nadler that McGahn is “conscious of the duties he, as an attorney, owes to his former client” and would decline to appear, according to The Associated Press.
Judiciary Committee Chairman Jerry Nadler, D-N.Y., has warned Burck that the committee would have no choice but to find McGahn in contempt if he fails to testify and provide a log of unreleased documents. Nadler said the committee would meet Tuesday and he expected McGahn there.
Nadler said the Mueller report described a "shocking pattern of obstruction of justice" as Trump "acted again and again – perhaps criminally – to protect himself from federal law enforcement."
"Don McGahn personally witnessed the most egregious of these acts," Nadler said. "President Trump knows this. He clearly does not want the American people to hear firsthand about his alleged misconduct, and so he has attempted to block Mr. McGahn from speaking in public tomorrow."
The department said Monday that McGahn need not appear to answer those questions. In a 15-page letter, the head of the department's Office of Legal Counsel, Steven Engel, told White House Counsel Pat Cipollone said McGahn and other advisers to the president cannot be compelled to testify.
"We provide the same answer the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the president's senior advisers to testify about their official duties," Engel wrote. "Those principles apply to the former White House Counsel. Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as counsel to the president.”
Trump said Monday that the administration was blocking McGahn's testimony to protect the presidency rather than for his personal benefit. "They're doing that for the office of the presidency," Trump said. "It's a very important precedent. They're not doing that for me. We're talking about the future."
Sarah Sanders, White House press secretary, said Trump has been transparent during the Mueller inquiry and that McGahn has been told not to appear.
"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. "This action has been taken in order to ensure that future presidents can effectively execute the responsibilities of the Office of the Presidency."
A key portion of the Mueller report described how Trump tried to remove Mueller, as described by McGahn. Since the report was released, Trump has denied that he tried to fire Mueller. Lawmakers are eager to question McGahn about the discrepancy.
"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. "It is also the latest example of this administration’s disdain for law."
But Cipollone earlier said in a letter to Burck that McGahn was working on the president’s behalf during the investigation so that the documents “remain legally protected from disclosure under longstanding constitutional principles.”
Trump has asserted executive privilege over the redacted portions of Mueller’s report and millions of pages of underlying evidence about Russian interference in the 2016 election, as a precaution while Justice Department officials review which documents should remain secret permanently. The probe ended with Mueller finding no conspiracy between the Trump campaign and Russia, and deciding not to pursue charges of obstruction of justice.
Trump allowed McGahn to meet with investigators for 30 hours during the nearly two-year inquiry. Trump now contends any documents McGahn could provide the committee are White House property and should remain secret. Trump has also said he will fight all House subpoenas as presidential harassment rather than legitimate congressional oversight.
Engel wrote that the executive branch has asserted for 75 years that senior presidential advisers may decline to testify before Congress, and formal immunity has been formally asserted for nearly 50 years. A U.S. District Court ruled in 2008 that presidential advisers weren’t entitled to absolute immunity, but the White House and Congress settled the case before an appeals decision was reached.
The Judiciary Committee has already found Attorney General William Barr in contempt for refusing to provide Congress with an unredacted version of Mueller’s report. The committee also subpoenaed McGahn for documents due May 7 and testimony due Tuesday.
The top Republican on the panel, Rep. Doug Collins of Georgia, tweeted Monday that McGahn's testimony is already available in Mueller’s 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?” Collins said. He said if lawmakers want to know what McGahn has to say they could simply read Mueller's report.
That Mueller report, based in part on testimony from McGahn and other senior Trump aides, said Trump called McGahn at home June 17, 2017, and told him Mueller had conflicts and should be removed. McGahn didn’t carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre, a reference to former President Richard Nixon firing prosecutors during the Watergate investigation. Trump later met with McGahn in the Oval Office and pressured him again, but McGahn refused.
McGahn later told Trump's chief of staff that the president had asked him to "do crazy s---," according to the report.
Nadler argued in a May 7 letter to Burck that Trump already waived executive privilege over documents by providing them to Mueller’s team. Even if privilege is asserted, Nadler said McGahn would have to appear and assert it for each question asked.
But Burck replied in a letter to Nadler that said McGahn would wait while the committee and the White House negotiate what to do with the records.
"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," the letter said.
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This article originally appeared on USA TODAY: White House tells Don McGahn, former counsel, not to testify to House panel