WASHINGTON — President Trump has ordered former White House counsel Don McGahn to ignore a subpoena to appear before Congress on Tuesday.
The move fuels an intensifying dispute between the Trump administration and House Democrats over access to witnesses and documents, as Trump plows forward with a strategy to deny all congressional subpoenas.
The Department of Justice’s Office of Legal Counsel sent a 15-page letter to the White House concluding that Congress could not force McGahn to testify, and Trump has ordered McGahn not to make an appearance, the White House said on Monday.
“Congress may not constitutionally compel the President’s senior advisers to testify about their official duties,” the DOJ letter reads. “This testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress.”
Armed with the DOJ’s legal opinion, Trump ordered McGahn not to appear on Tuesday, current White House Counsel Pat Cipollone wrote in a letter sent Monday to Congressman Jerrold Nadler, the New York Democrat in charge of the House Judiciary Committee.
“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,” Cipollone wrote.
The dispute over McGahn’s testimony marks one more conflict between Trump and Congress that now seem destined to be decided by the courts. While lawyers and legal experts have told VICE News that Congress likely has the upper hand in most of these fights from a legal perspective, they could take months to play out, and could stretch out beyond the end of Trump’s first term.
Trump has defied congressional subpoenas for his tax returns and the unredacted portions of special counsel Robert Mueller’s report on Trump’s ties to Russia and obstruction of justice. He’s filed lawsuits to keep financial firms from sharing their records on Trump’s businesses with Congress. And now, he’s fighting to keep McGahn from telling Congress everything he knows about Trump and obstruction of justice.
McGahn’s pending testimony on Tuesday had been hotly anticipated, thanks to the starring role he played in the Mueller report in multiple incidents concerning possible obstruction of justice by Trump. McGahn was the top White House lawyer during the first two years of Trump’s presidency, and gave dozens of hours of testimony to Mueller’s team.
McGahn doesn’t work for Trump anymore, however, and it remains unclear how the lawyer will choose to maneuver through this conflict between Trump and House Democrats, each of which claim to have the law on their side.
The White House had already ordered McGahn not to turn over documents subpoenaed by Congress. In response, Nadler, the New York Democrat in charge of the House Judiciary Committee, has threatened to hold McGahn in contempt of Congress.
According to the Mueller report, McGahn defied a request by Trump to have Mueller removed in June 2017, threatening to resign instead. Afterwards, the report says, Trump asked McGahn to fabricate a paper trail denying the episode ever took place. But again, McGahn refused.
McGahn had been subpoenaed to appear by the House Judiciary Committee, the panel with authority to launch impeachment proceedings against Trump if House Democrats ever decided to go down that road.
In another widely publicized incident described in the report, Trump asked McGahn why he was taking notes — noting that other attorneys Trump had worked with didn’t do stuff like that.
McGahn shot back that he was taking notes because he was a “real lawyer.”
Cover: Don McGahn, White House counsel, speaks during a discussion at the Conservative Political Action Conference in National Harbor, Maryland, U.S., on Thursday, Feb. 22, 2018. (Photo: Andrew Harrer/Bloomberg via Getty Images)