By Brooke Singman, John Roberts, Gregg Re
Published May 20, 2019
President Trump has directed former White House Counsel Don McGahn to skip a House Judiciary Committee hearing scheduled for Tuesday, citing a Justice Department opinion that he cannot be compelled to testify about his official duties -- and, through his legal team, McGahn confirmed Monday evening that he won't appear.
The development prompted an obstinate response late Monday from House Judiciary Committee Chairman Jerry Nadler, D-N.Y.: “We are having the hearing tomorrow and we’re expecting Mr. McGahn to show pursuant to the subpoena."
Earlier this month, House Democrats opted to question an empty chair -- and a bucket of fried chicken -- when Attorney General Bill Barr failed to appear, citing Democrats' unusual demands.
In a letter to Nadler, McGahn attorney William Burck said his client won't show up. Burck said current White House Counsel Pat Cipollone had communicated that Trump had instructed McGahn not to testify, and that Assistant Attorney General for the Office of Legal Counsel Steven Engel had said McGahn was immune from testifying.
"Mr. McGahn understands from your prior correspondence that the Committee would vote to hold him in contempt should he not appear tomorrow and the House of Representatives may follow suit," Burck wrote to Nadler. "While we disagree with the Committee’s position and hope it will instead seek an accommodation with the White House, Mr. McGahn also must honor his ethical and legal obligations as a former senior lawyer and senior advisor to the President. In short, it is our view that the Committee’s dispute is not with Mr. McGahn but with the White House."
Burck added: "Mr. McGahn remains obligated to maintain the status quo and respect the President’s instruction. In the event an accommodation is agreed between the Committee and the White House, Mr. McGahn will of course comply with that accommodation."
In a statement released Monday afternoon, White House Press Secretary Sarah Sanders blasted Democrats for continuing to pursue Trump investigations, saying they want a "wasteful and unnecessary do-over" in the wake of Special Counsel Robert Mueller's probe -- and describing the subpoena for McGahn as part of that.
"The House Judiciary Committee has issued a subpoena to try and force Mr. McGahn to testify again. 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."
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.
The New York Times first reported that the president would likely direct McGahn to skip the hearing.
The committee announced the hearing last week, but it was unclear whether McGahn would appear due to the ongoing battle between congressional Democrats and the White House over his testimony.
Earlier this month, Sanders said she did not “anticipate” that a hearing would take place. “We consider this to be a case closed and we’re moving forward to do the work of the American people,” Sanders said on ABC News’ “The Investigation” podcast.
The committee, led by Nadler, subpoenaed McGahn on April 22, days after the release of Special Counsel Robert Mueller’s report, which featured McGahn prominently in its section related to the obstruction of justice inquiry. This included 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, 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.” He did not.
The House committee's subpoena, coming amid a fight over access to the unredacted Mueller report, called for McGahn to appear before the panel to testify and provide documents related to the Mueller investigation.
But earlier this month, Cipollone first notified the committee that McGahn would not be allowed to comply with the subpoena, saying requests for documents and materials must go to the White House.
“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,” adding that the Justice Department concurs with their legal position.
But Nadler has stressed the importance of McGahn’s testimony, saying it would “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 to do the same.”
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."
The battle over McGahn's testimony is just one front in the clash between the White House and congressional Democrats.
Earlier this month, the committee voted to hold Barr in contempt for defying a subpoena for Mueller's full and unredacted report, as well as underlying evidence and documents used in the investigation.
Trump, prior to the vote, asserted executive privilege over the materials in a bid to protect them from being turned over to the committee. The full House has yet to take a final vote on whether to hold Barr in contempt of Congress.
Fox News' Chad Pergram contributed to this report.