By David Montanaro
Published May 21, 2019
Former White House Counsel Don McGahn is caught in an "awkward position" after the White House directed him not to appear before the House Judiciary Committee, Fox News senior judicial analyst Judge Andrew Napolitano said Tuesday.
The White House on Monday cited a Justice Department opinion that McGahn cannot be compelled to testify about his official duties -- and, through his legal team, McGahn confirmed that he won't appear.
The development prompted an obstinate response late Monday from Chairman Jerry Nadler, D-N.Y.: “We are having the hearing tomorrow and we’re expecting Mr. McGahn to show pursuant to the subpoena."
The related DOJ memo said McGahn, like other senior advisers to a president, has "immunity" from being compelled to testify about his official duties.
"This immunity applies 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," the memo said.
Responding on "Fox & Friends," Napolitano said ultimately a judge will decide the issue, similar to other disputes between House Democrats and the administration. He pointed to the ruling Monday that the House Oversight Committee can pursue a slew of Trump financial documents dating back to 2011.
Napolitano said he expects that ruling to be appealed, and possibly overturned, by a federal appeals court or the Supreme Court.
"Ultimately, a lot of this will get to the Supreme Court, as was the case when the House of Representatives wanted Nixon's tapes," he commented.
Democrats want to hear from McGahn after he featured prominently in the Mueller report's obstruction of justice inquiry. Mueller's team concluded that McGahn was instructed by President Trump to facilitate Mueller's removal in June 2017, but he did not comply with the request.
Napolitano said McGahn is left in an "awkward position" after being truthful with Mueller's investigators in 30 hours of testimony, but now being directed not to testify.
"Now the client says 'don't say anything.' You follow the client's instruction until a court tells you otherwise," the judge explained, saying Democrats are "dying" to view the full transcript of what McGahn told investigators, but the Justice Department will not release it.
Fox News' Brooke Singman, John Roberts and Gregg Re contributed to this report.