President Trump ordered former White House top lawyer Don McGahn not to testify to Congress, heading off a highly anticipated session with Democrats on Tuesday.
Armed with a legal opinion from the Justice Department, current White House Counsel Pat Cipollone said Mr. Trump is acting under longstanding precedent in refusing to let one of his top advisers speak about his activities within the White House.
“The Department of Justice … has advised me that Mr. McGahn is absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior advisor to the president,” Mr. Cipollone wrote to Rep. Jerrold Nadler, chairman of the House Judiciary Committee.
And because Mr. McGahn’s work for the White House is exempt, he cannot be held in contempt of Congress for refusing to comply, the Justice Department’s Office of Legal Counsel said.
Mr. Nadler said Tuesday’s hearing will go on, and he wants Mr. McGahn to defy Mr. Trump and show up anyway.
The congressman also said Mr. Trump’s move to block his former lawyer is a sign that the president is hiding things.
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“He clearly does not want the American people to hear firsthand about his alleged misconduct, and so he has attempted to block Mr. McGahn from speaking in public tomorrow,” Mr. Nadler said.
He described the president’s assertion of a constitutional privilege as an “act of obstruction.” Mr. Nadler earlier this month said the president’s attempts to thwart his investigations amounted to the beginnings of a case for impeachment — and House Speaker Nancy Pelosi has sounded a similar theme, pointing out that former President Richard M. Nixon resigned in the face of articles of impeachment that cited obstruction of Congress as one of the causes.
Mr. McGahn emerged as a key figure in special counsel Robert Mueller’s investigation into the president’s behavior toward probes into the 2016 election.
In one episode, Mr. Trump reportedly ordered Mr. McGahn to orchestrate the firing of Mr. Mueller.
Mr. McGahn refused, including threatening to quit, and Mr. Mueller remained on the job — but the incident is among several that Democrats say amounts to obstruction of justice and could deserve impeachment.
Mr. McGahn reported the events to Mr. Mueller over the course of hours of interviews.
House Democrats had made securing Mr. McGahn’s testimony a key test of Mr. Trump’s cooperation with efforts to follow up on Mr. Mueller’s work, issuing a subpoena nearly a month ago. That subpoena asked both for Mr. McGahn to appear in person, and for him to turn over documents related to the special counsel’s investigation.
“Mr. McGahn is a critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Mueller report,” Mr. Nadler said at the time.
But the OLC, which acts as the chief legal referee within the administration, said presidents of both parties have repeatedly rejected having their close advisors be compelled to testify.
Assistant Attorney General Steven A. Engel wrote that under the Constitution’s separation of powers, the president is entitled to advice without having to worry that the other political branch of government will interrogate every decision.
Mr. Nadler said Mr. Trump was stretching that too far in saying Mr. McGahn can’t testify about things that are already in the Mueller report, or things that happened before or after he was White House counsel.
But Rep. Doug Collins, the top Republican on the Judiciary Committee, said Mr. Nadler already has access to what Mr. McGahn would say. It’s in the less-redacted version of the Mueller report, which was made available to Mr. Nadler and a select group of lawmakers weeks ago. Mr. Nadler has refused to view that report, saying he wouldn’t allow the White House to set conditions on what he can and cannot see.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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