The White House is blocking former counsel Don McGahn from producing documents responding to the House Judiciary Committee’s subpoena last month.
Instead, direct requests for the materials must go to the White House, setting up an even more intense legal battle between the Trump administration and congressional Democrats.
White House Counsel Pat Cipollone penned a letter to House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., on Tuesday, notifying him that McGahn will not comply with the subpoena, which, according to the letter, seeks certain White House records given to McGahn that are related to Special Counsel Robert Mueller’s investigation.
“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 wrote. “The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.”
He added: “Because Mr. McGahn does not have the legal right to disclose these documents to third parties, I would ask the Committee to direct any request for such records to the White House, the appropriate legal custodian.”
Cipollone wrote that acting chief of staff Mick Mulvaney “has directed Mr. McGahn not to produce these White House records” in response to the committee’s subpoena issued on April 22.
“The Department of Justice is aware of and concurs with this legal position,” Cipollone wrote.
The letter to Nadler comes amid negotiations for McGahn’s testimony, and specific documents committee Democrats are seeking.
House Judiciary Committee Ranking Member Doug Collins, R-Ga., said he hoped Nadler would negotiate with the White House.
“As I said more than a month ago, when Democrats subpoenaed Don McGahn, they subpoenaed the wrong person. The White House is nevertheless seeking to accommodate Democrats’ unwieldy demands. I hope Chairman Nadler accepts this reasonable offer rather than continuing to reject good faith offers to negotiate.”
On April 22, days after the release of Special Counsel Robert Mueller’s Russia report, which featured McGahn prominently in its section related to the obstruction of justice inquiry, the committee subpoenaed him to appear before the panel to testify, and to provide documents related to the Mueller investigation.
“[McGahn’s] testimony will help shed further light on the president’s attacks on the rule of law, and his attempts to cover up those actions by lying to the American people and requesting others do the same,” Nadler said last month.
But the White House ordered that McGahn defy the subpoena, and not appear for testimony. That request prompted President Trump to announce that he planned to fight “all” subpoenas for current and former White House officials.
On Tuesday, when asked whether the White House would allow McGahn to comply with the subpoena, White House Press Secretary Sarah Sanders said it was unlikely.
“I don’t anticipate that that takes place,” Sanders said on ABC News’ “The Investigation” podcast Tuesday. “We consider this to be a case closed and we’re moving forward to do the work of the American people.”
The president, last week, in an exclusive interview with Fox News, again said McGahn would not testify, after calling the subpoena "ridiculous."
"They've testified for many hours, all of them. I would say, it's done," Trump told Fox News' Chief Intelligence Correspondent Catherine Herridge. "Nobody has ever done what I've done. I've given total transparency. It's never happened before like this. They shouldn't be looking anymore. It's done."
McGahn’s interview with special counsel investigators factored prominently into the section probing whether the president obstructed justice, including a claim that McGahn disobeyed Trump’s call to have him seek Mueller’s removal.
“On June 17, 2017, the president called [White House Counsel Don] McGahn at home and directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed. McGahn did not carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre,” the report stated, referencing the Watergate scandal.
The report also revealed that when the media reported on the president’s request for McGahn to have Mueller removed, the president directed White House officials “to tell McGahn to dispute the story and create a record stating he had not been ordered to have the special counsel removed.”
“McGahn refused to back away from what he remembered happening,” the report said.
The report went on to explain that two days after the initial request to McGahn, the president made another attempt to “affect the course of the Russia investigation.”
Trump, though, said he never told McGahn to fire Mueller, and tweeted last month that if he “wanted to fire Mueller, I didn’t need McGahn to do it, I could have done it myself."
Fox News' John Roberts and Kristin Brown contributed to this report.