The New York Times reported on Monday that according to “a person briefed on the matter,” that the White House is prepared to block scheduled testimony before the House Judiciary Committee by former White House Legal Counsel Don McGahn.
Congressional reporter for Politico, Andrew Desiderio tweeted that according to a DOJ official the Office of Legal Counsel has drafted an opinion that they believe will provide basis for McGahn refusing to comply with the Judiciaries subpoena.
NEWS: The Justice Department’s Office of Legal Counsel has drafted an opinion centering on McGahn’s planned testimony to House Judiciary tomorrow, per DOJ official.— Andrew Desiderio (@desiderioDC) May 20, 2019
A Hill aide tells me they expect it to provide a legal basis for McGahn refusing to comply with the subpoena.
The Washington Post explains “The move to bar McGahn from answering lawmakers’ questions is certain to anger House Democrats already eager to hit back at what they view as White House stonewalling. The defiance raises the possibility that the House will hold McGahn in contempt of Congress, as House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) has threatened.”
The Judiciary Committee hopes to focus on two instances in which the Special Counsel Robert Mueller’s Report explains that President Trump tried to pressure McGahn to intervene with the Russian Investigation, including the removal of the Special Counsel.
Press Secretary Sarah Sanders posted a statement that states, “The House Judiciary Committee has issued a subpoena to try and force Mr. McGahn to testify again,” she adds that, “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.”
White House Counsel Pat Cipollone sent a letter to Rep. Jerrold Nadler (D-NY), the Judiciary Committee Chairman, where he explains 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, May 21, 2019.”
The DOJ’s Office of Legal Counsel wrote a memo that states in part, “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”
They go on to explain, “We believe that these established principles apply to bar the Committee from compelling Mr. McGahn to testify. The Counsel of the President clearly qualifies as a senior adviser entitled to testimonial immunity.”
They explain this practice dates back to the 1970’s, wherein the Office of Legal Counsel “has consistently advised that “the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.”
They also contend that the Committee can not hold McGahn in contempt of Congress should he not appear before the Committee on Tuesday.
McGahn doesn’t have to comply with Trump’s “order” not to testify before House Judiciary. But he has every incentive to go along with the Trump Administration.— Renato Mariotti (@renato_mariotti) May 20, 2019
Democrats will have to hold him in contempt and then go to court to compel his testimony. https://t.co/T2VbrNRjSG
The question now remains will he or won’t he testify on Tuesday.