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Trump Instructs McGahn to Defy Subpoena and Skip House Testimony Trump’s Secrecy Fight Escalates as Judge Rules for Congress in Early Test
(about 4 hours 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 — The fight over President Trump’s systematic stonewalling of Congress escalated on two fronts on Monday, as a federal judge upheld a subpoena for his financial records even as the White House instructed its former top lawyer to defy a subpoena to testify before lawmakers.
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.” In the first court test of Mr. Trump’s vow to resist “all” subpoenas by House Democrats, a judge ruled that his accounting firm, Mazars USA, must turn over his financial records to Congress — rejecting his lawyers’ argument that lawmakers had no legitimate power to demand the files.
“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. Trump separately moved to block Congress from hearing testimony by the former White House counsel Donald F. McGahn II at a hearing scheduled for Tuesday, denying House Democrats one of the most important eyewitnesses to Mr. Trump’s attempts to obstruct the Russia investigation. Mr. McGahn will not appear, his lawyer said later.
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. The fights raise separate but overlapping issues: how far Congress’s power to subpoena information extends, what Mr. Trump can apply executive privilege to in order to keep secret, and whether a president’s senior aides are “absolutely immune” from subpoenas, meaning they do not even have to show up when ordered to appear before lawmakers.
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. Both disputes grew out of weeks of trading threats and rival interpretations of where to draw the line between the president’s power to keep information secret and Congress’s power to obtain records and testimony for oversight investigations.
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. They are still far from resolved. Mr. Trump said he would appeal the ruling that his accounting firm must turn over his financial records, raising the prospect of lengthy litigation. The dispute over Mr. McGahn’s testimony seemed similarly destined to end up in court.
A lawyer for Mr. McGahn declined to comment on Monday. Asked why he was telling Mr. McGahn to defy the subpoena, Mr. Trump suggested that his lawyers were trying just trying to protect the institution of the presidency.
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. “They’re doing that for the office of the presidency, for future presidents,” he told reporters on the South Lawn of the White House before departing for a campaign rally in Pennsylvania. “I think it’s a very important precedent. And the attorneys say that they’re not doing that for me. They’re doing it for the office of the president. So we’re talking about the future.”
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. In the financial records case, Mr. Trump’s legal team, led by William S. Consovoy, had argued that the subpoena by the House Committee on Oversight and Reform exceeded its constitutional authority because it had no legitimate legislative purpose in seeking Mr. Trump’s data. Lawmakers were just trying to dig up dirt — like finding out whether the president broke any laws — for political reasons, Mr. Trump’s lawyers argued.
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. But Democrats have said they need the records because they are examining whether ethics and disclosure laws need to be strengthened. In a 41-page ruling, Judge Amit P. Mehta of the United States District Court for the District of Columbia, an appointee of President Barack Obama, said that justification was sufficient to make the subpoena valid.
The White House reiterated that view on Monday. “These are facially valid legislative purposes, and it is not for the court to question whether the committee’s actions are truly motivated by political considerations,” he wrote. “Accordingly, the court will enter judgment in favor of the Oversight Committee.”
“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. [Read the ruling.]
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. Representative Elijah E. Cummings, Democrat of Maryland and the chairman of the oversight panel, hailed the decision as a “resounding victory” for the rule of law and constitutional checks and balances.
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. “Congress must have access to the information we need to do our job effectively and efficiently,” he said in a statement, “and we urge the president to stop engaging in this unprecedented cover-up and start complying with the law.”
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. Mr. Consovoy did not respond to an email requesting a comment. But Mr. Trump he denounced the ruling as “totally the wrong decision by obviously an Obama-appointed judge.” He also said was “crazy because if you look at it, this never happened to any other president.”
“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. Democrats say their attempts to obtain Mr. Trump’s financial records were driven by the fact that he, unlike all previous modern presidents, has refused to disclose his tax returns and has declined to divest from his extensive business dealings, including with foreigners abroad, or to place his assets into a blind trust.
But there are outstanding legal questions. The Trump administration is making similar arguments about Congress lacking a legitimate legislative purpose to back its subpoena for battles related to information related to the investigation by the special counsel, Robert S. Mueller III — including for Mr. McGahn’s testimony.
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. Since last month’s release of the 448-page redacted report by Mr. Mueller, Democrats have sought for Mr. McGahn to publicly give his account of Mr. Trump’s attempts to thwart investigators. While those conversations are laid out in the report, Democrats hope that hearing directly from Mr. McGahn in a televised hearing would help galvanize public opposition Mr. Trump.
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. Because Mr. McGahn’s information relates to his former official duties, unlike Mr. Trump’s financial records, the White House also has two additional weapons to deploy against Congress.
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. The first, which it unleashed on Monday, is to claim that the Constitution gives close personal aides to a president “absolute immunity” from congressional subpoenas trying to compel them to come testify about their official duties — even if, like Mr. McGahn, they no longer work for the president and so forcing them to show up at the Capitol would not interfere with their ability to assist him.
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. Administrations of both parties have taken that position, and the Justice Department on Monday unveiled a new 15-page legal opinion from Steven A. Engel, the head of the department’s Office of Legal Counsel, asserting that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”
Pat A. Cipollone, the current White House counsel, sent the Judiciary Committee a letter saying that the president had directed Mr. McGahn not to appear, and invoking that rationale as justification.
Representative Jerrold Nadler, Democrat of New York and the chairman of the House Judiciary Committee, denounced Mr. Trump’s move as “the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this committee.”
“It is also the latest example of this administration’s disdain for law,” Mr. Nadler added.
He noted that in 2008, another Federal District Court judge, John D. Bates, ruled that President George W. Bush’s former White House counsel, Harriet Miers, had no right to skip a hearing for which she had been subpoenaed. Judge Bates, a Bush appointee, said she 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 the Miers ruling, and because no appeals court weighed in, Judge Bates’s 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 had been wrong, and Mr. Engel echoed that logic in his new memo.
Mr. McGahn’s lawyer, William A. Burck, said in a letter to the committee that he viewed the dispute as one between the White House and the committee, adding that he hoped the committee would decline to hold Mr. McGahn in contempt for obeying Mr. Trump and not showing up.
“It is our view that the committee’s dispute is not with Mr. McGahn but with the White House,” he wrote.
Mr. McGahn has already defied the committee’s subpoena once. The panel had also called for him to hand over documents that he shared with Mr. Mueller and that the committee said were relevant to its own inquiry into potential abuses of power. The White House similarly instructed Mr. McGahn not to comply.
If, as seems likely, the fight over Mr. McGahn’s documents and testimony ends up in court, Mr. Trump’s legal team will have to overcome a legal rationale embraced by another District Court judge, Amy Berman Jackson, in a case that raised similar issues.
Judge Jackson, an Obama appointee, ruled in 2016 that the Obama administration could not use the privilege to block Congress from subpoenaing documents whose “sum and substance” were already revealed in a public inspector general report.
In the same way, the Trump administration already made Mr. McGahn’s discussions with the president public by revealing most of the Mueller report. Still, that case was also resolved without any appeals court ruling that would have created a controlling precedent.
Mr. Trump’s willingness to appeal the ruling in the financial records case underscores that he could attempt to drag out the legal process as long as he can, running out the clock before the 2020 election.
At a May 14 hearing, Mr. Consovoy had asked Judge Mehta, were he to rule against Mr. Trump, to stay his ruling until an appeals court completed its review. But the judge declined.
While Mr. Consovoy is now likely to ask an appeals court to stay the ruling anyway, Judge Mehta called the Trump arguments too thin to raise a “serious legal question” and said that delaying the subpoena further would unjustifiably interfere with the constitutional powers of Congress.
“The court is well aware that this case involves records concerning the private and business affairs of the president of the United States,” he wrote. “But on the question of whether to grant a stay pending appeal, the president is subject to the same legal standard as any other litigant that does not prevail.”