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| Trump Instructs McGahn to Defy Subpoena and Skip House Testimony | Trump Instructs McGahn to Defy Subpoena and Skip House Testimony |
| (32 minutes later) | |
| WASHINGTON — President Trump on Monday directed his former White House counsel, Donald F. McGahn II, to defy a congressional subpoena and skip a hearing scheduled for Tuesday, denying House Democrats testimony from one of the most important eyewitnesses to Mr. Trump’s attempts to obstruct the Russia investigation. | WASHINGTON — President Trump on Monday directed his former White House counsel, Donald F. McGahn II, to defy a congressional subpoena and skip a hearing scheduled for Tuesday, denying House Democrats testimony from one of the most important eyewitnesses to Mr. Trump’s attempts to obstruct the Russia investigation. |
| The House Judiciary Committee had subpoenaed Mr. McGahn to appear. The White House, though, presented Mr. McGahn and the committee with a 15-page legal opinion from the Justice Department stating that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.” | |
| “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,” Pat A. Cipollone, the current White House counsel, wrote in a letter to the 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,” Pat A. Cipollone, the current White House counsel, wrote in a letter to the Judiciary Committee. |
| Mr. McGahn now technically faces a choice over whether to show up to the hearing and parry questions from Democrats or skip the session altogether. But Mr. McGahn has maintained throughout that he will follow the White House’s guidance, according to a person close to him. | Mr. McGahn now technically faces a choice over whether to show up to the hearing and parry questions from Democrats or skip the session altogether. But Mr. McGahn has maintained throughout that he will follow the White House’s guidance, according to a person close to him. |
| Democrats on the Judiciary Committee were livid, if not entirely surprised by the White House’s intervention. The committee’s chairman, Representative Jerrold Nadler of New York, said last week that he was prepared to have his panel vote to hold Mr. McGahn in contempt of Congress if he does not show up on Tuesday. Though a black mark on a witness’s record, a contempt citation would most likely result in the House turning to a federal court to try to enforce its subpoena. | Democrats on the Judiciary Committee were livid, if not entirely surprised by the White House’s intervention. The committee’s chairman, Representative Jerrold Nadler of New York, said last week that he was prepared to have his panel vote to hold Mr. McGahn in contempt of Congress if he does not show up on Tuesday. Though a black mark on a witness’s record, a contempt citation would most likely result in the House turning to a federal court to try to enforce its subpoena. |
| At the same time, if he defies the White House, Mr. McGahn could not only damage his own career in Republican politics but also put his law firm, Jones Day, at risk of having the president urge his allies to withhold their business. The firm’s Washington practice is closely affiliated with the party. | At the same time, if he defies the White House, Mr. McGahn could not only damage his own career in Republican politics but also put his law firm, Jones Day, at risk of having the president urge his allies to withhold their business. The firm’s Washington practice is closely affiliated with the party. |
| A lawyer for Mr. McGahn declined to comment on Monday. | A lawyer for Mr. McGahn declined to comment on Monday. |
| Since last month’s release of the 448-page redacted report by the special counsel, Robert S. Mueller III, Democrats have sought for Mr. McGahn to publicly give his account of Mr. Trump’s attempts to thwart investigators, figuring that his testimony would make for a dramatic hearing that could help galvanize public support against Mr. Trump. | Since last month’s release of the 448-page redacted report by the special counsel, Robert S. Mueller III, Democrats have sought for Mr. McGahn to publicly give his account of Mr. Trump’s attempts to thwart investigators, figuring that his testimony would make for a dramatic hearing that could help galvanize public support against Mr. Trump. |
| Mr. Mueller cited Mr. McGahn more than any other witness in his report on whether the president obstructed justice. In interviews with the special counsel’s investigators, Mr. McGahn detailed several episodes — including an effort to oust Mr. Mueller — that showed the president intent on using his position atop the executive branch to protect himself from the Russia inquiry. | Mr. Mueller cited Mr. McGahn more than any other witness in his report on whether the president obstructed justice. In interviews with the special counsel’s investigators, Mr. McGahn detailed several episodes — including an effort to oust Mr. Mueller — that showed the president intent on using his position atop the executive branch to protect himself from the Russia inquiry. |
| Since the report’s release, Mr. Trump has put up roadblocks for House Democrats trying to investigate him further — including claiming executive privilege over the entire report and evidence underlying it — hurting the Democrats’ momentum as they seek to expand their oversight efforts. The president has falsely maintained that he fully cooperated with Mr. Mueller — he himself refused an interview — and has asserted that there has been enough investigating of his administration. | Since the report’s release, Mr. Trump has put up roadblocks for House Democrats trying to investigate him further — including claiming executive privilege over the entire report and evidence underlying it — hurting the Democrats’ momentum as they seek to expand their oversight efforts. The president has falsely maintained that he fully cooperated with Mr. Mueller — he himself refused an interview — and has asserted that there has been enough investigating of his administration. |
| The White House reiterated that view on Monday. | The White House reiterated that view on Monday. |
| “The Democrats do not like the conclusion of the Mueller investigation — no collusion, no conspiracy, and no obstruction — and want a wasteful and unnecessary do-over,” Sarah Huckabee Sanders, the White House press secretary, said in a statement. | “The Democrats do not like the conclusion of the Mueller investigation — no collusion, no conspiracy, and no obstruction — and want a wasteful and unnecessary do-over,” Sarah Huckabee Sanders, the White House press secretary, said in a statement. |
| Mr. McGahn has already defied the committee’s subpoena once. In addition to his testimony, the Judiciary Committee subpoena called for Mr. McGahn to hand over a tranche of documents that he shared with Mr. Mueller and that the committee said was relevant to its own inquiry into potential obstruction of justice and abuses of power. The White House instructed Mr. McGahn not to comply, and Mr. Trump later asserted executive privilege over the material. | Mr. McGahn has already defied the committee’s subpoena once. In addition to his testimony, the Judiciary Committee subpoena called for Mr. McGahn to hand over a tranche of documents that he shared with Mr. Mueller and that the committee said was relevant to its own inquiry into potential obstruction of justice and abuses of power. The White House instructed Mr. McGahn not to comply, and Mr. Trump later asserted executive privilege over the material. |
| Democrats believe the president’s privilege claim is illegitimate given the public nature of the material in question, but they have little recourse to access the material without a lengthy court battle. | Democrats believe the president’s privilege claim is illegitimate given the public nature of the material in question, but they have little recourse to access the material without a lengthy court battle. |
| As the legal memo presented on Monday noted, the Justice Department’s Office of Legal Counsel has long taken the position that the president’s closest advisers have “absolute immunity” from congressional subpoenas, meaning they would not even have to show up to face questions about their official duties. | As the legal memo presented on Monday noted, the Justice Department’s Office of Legal Counsel has long taken the position that the president’s closest advisers have “absolute immunity” from congressional subpoenas, meaning they would not even have to show up to face questions about their official duties. |
| “This longstanding principle is firmly rooted in the Constitution’s separation of powers and protects the core functions of the presidency, and we are adhering to this well-established precedent in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the presidency,” Mr. Cipollone wrote, referencing the Justice Department opinion. | “This longstanding principle is firmly rooted in the Constitution’s separation of powers and protects the core functions of the presidency, and we are adhering to this well-established precedent in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the presidency,” Mr. Cipollone wrote, referencing the Justice Department opinion. |
| But there are outstanding legal questions. | But there are outstanding legal questions. |
| A Federal District Court judge, John Bates, rejected that theory in a 2008 dispute over a congressional subpoena to Harriet Miers, a former White House Counsel to then-President George W. Bush. He ruled that Ms. Miers had to show up, although she might still refuse to answer specific questions based on a claim of executive privilege. | A Federal District Court judge, John Bates, rejected that theory in a 2008 dispute over a congressional subpoena to Harriet Miers, a former White House Counsel to then-President George W. Bush. He ruled that Ms. Miers had to show up, although she might still refuse to answer specific questions based on a claim of executive privilege. |
| The executive branch did not appeal that ruling, and because no appeals court weighed in, Judge Bates’ opinion does not count as a controlling precedent for other disputes raising the same issue. That left the Obama administration, in a 2014 memo, free to take the position that Judge Bates was wrong. | The executive branch did not appeal that ruling, and because no appeals court weighed in, Judge Bates’ opinion does not count as a controlling precedent for other disputes raising the same issue. That left the Obama administration, in a 2014 memo, free to take the position that Judge Bates was wrong. |
| Even if Mr. McGahn, like Ms. Miers before him, ultimately does have to appear before Congress, the separate issue would remain of whether he could rely on a claim of executive privilege by Mr. Trump to avoid answering questions about his communications with the president — even though the Trump administration already disclosed the substance of those talks by making the Mueller report public. | Even if Mr. McGahn, like Ms. Miers before him, ultimately does have to appear before Congress, the separate issue would remain of whether he could rely on a claim of executive privilege by Mr. Trump to avoid answering questions about his communications with the president — even though the Trump administration already disclosed the substance of those talks by making the Mueller report public. |
| In a 2016 case involved a congressional subpoena for internal executive branch documents that had been described in a Justice Department inspector general report, another Federal District Court judge ruled that because the executive branch had already made public their “sum and substance,” Mr. Obama could not use the privilege to keep Congress from seeing the underlying files. But that case, too, was resolved without any appeals court ruling. | In a 2016 case involved a congressional subpoena for internal executive branch documents that had been described in a Justice Department inspector general report, another Federal District Court judge ruled that because the executive branch had already made public their “sum and substance,” Mr. Obama could not use the privilege to keep Congress from seeing the underlying files. But that case, too, was resolved without any appeals court ruling. |