The White House is expected to block former White House counsel Don McGahn’s testimony to the House Judiciary Committee as soon as Monday, according to a source familiar with the matter.
The options the White House could use to block McGahn’s appearance include claiming McGahn is immune from testifying as a former adviser to the President. The Justice Department’s Office of Legal Counsel is expected to release an opinion that will address the immunity issue surrounding McGahn’s testimony, according to a Justice Department official.
The White House’s expected move to keep McGahn off of Capitol Hill would be the latest in a slew of current and former Trump administration officials defying subpoenas from House Democrats, who are now grappling with how best to respond to the Trump administration’s blanket resistance to their investigations into the President.
It would mark the second time McGahn has not complied with the Judiciary Committee’s subpoena. He also deferred to the White House in refusing to provide documents that the committee subpoenaed related to McGahn’s special counsel interview preparations, which the White House argued were covered by executive privilege.
Nadler, a Democrat from New York, did not move to hold McGahn in contempt after he would not provide those documents, but he has made clear he is likely to do so if McGahn does not appear Tuesday. The committee is expected to hold the hearing without him, as it did earlier this month for Attorney General William Barr when he did not testify over a dispute about the hearing format.
“We’ve subpoenaed McGahn. We’re expecting him to show up on the 21st, and if he doesn’t he will be subject to contempt, unless he has a court order telling him he can’t, which I don’t think he would get,” Nadler said earlier this month.
McGahn’s testimony is of interest to Democrats in Congress because of the role that he played in special counsel Robert Mueller’s investigation into whether the President obstructed justice. One of the key episodes the special counsel cited in the investigation, which did not exonerate Trump, was when the President told McGahn to fire Mueller and McGahn would not do so.
McGahn is now one of a number of officials who could be held in contempt by Congress.
Earlier this month, Nadler’s committee voted to hold Barr in contempt for refusing to provide the unredacted Mueller report and underlying evidence to Congress. House Intelligence Chairman Adam Schiff says he will take an unspecified “enforcement action” against the Justice Department for not complying with the committee’s subpoena for Mueller’s counterintelligence information. And Treasury Secretary Steve Mnuchin defied the House Ways and Means Committee’s subpoena for President Donald Trump’s tax records last week.
The House is still considering how to handle contempt issues on the floor. One option being considered is to bundle up all of the contempt citations into a single vote to highlight the Trump administration’s stonewalling. Another is to invoke the House’s so-called “inherent contempt” powers to fine or jail officials who are held in contempt without using the court system, although such an action hasn’t been taken in nearly a century.
The White House’s expected move to block McGahn has similarities to President George W. Bush’s efforts to prevent his former White House counsel, Harriet Miers, from testifying. A federal judge in 2008 ruled against the Bush administration.
But that court ruling doesn’t mean the executive branch has accepted it. In 2014, the Obama administration’s Office of Legal Counsel wrote a memo that a senior White House adviser subpoenaed by the House Oversight Committee did not have to testify, arguing the President’s immediate advisers had “absolute immunity from congressional compulsion to testify about matters that occur during the course of discharging their official duties.”
If Nadler goes to court to force McGahn’s testimony, it’s likely to be one of a number of judicial battles pitting congressional Democrats against the Trump administration.
Democrats’ efforts to obtain the Mueller report and Trump’s tax returns are also likely headed to court, and Trump and the Trump Organization have already sued to block subpoenas to Deutsche Bank, Capital One and an accounting firm that has prepared the President’s financial statements.