McGahn rejects House subpoena to appear

Former White House counsel Don McGahn will not appear before the House Judiciary Committee on Tuesday despite a congressional subpoena demanding his appearance. 

McGahn’s attorney William Burck wrote in a Monday letter to Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) that his client would comply with instructions from the White House to decline the appearance. 

{mosads}“Mr. McGahn understands from your prior correspondence that the Committee would vote to hold him in contempt should he not appear tomorrow and the House of Representatives may follow suit,” Burck wrote in the letter, which was obtained by The Hill Monday evening.

“While we disagree with the Committee’s position and hope it will instead seek an accommodation with the White House, Mr. McGahn also must honor his ethical and legal obligations as a former senior lawyer and senior advisor to the President. In short, it is our view that the Committee’s dispute is not with Mr. McGahn but with the White House,” Burck added.

President Trump earlier in the day directed McGahn not to appear for the committee, citing a Justice Department legal opinion arguing McGahn is immune from congressional testimony. 

The developments have further exacerbated tensions between the White House and Democrats in the lower chamber who are pursuing sweeping investigations into Trump and his administration.  

In an earlier statement, Nadler characterized Trump’s instructions to McGahn as “the latest act of obstruction” by his White House. 

The Judiciary Committee subpoenaed McGahn for documents and public testimony in April as part of an investigation into alleged obstruction and abuses of power by Trump. McGahn is viewed as a key witness among Democrats, particularly because of his testimony to special counsel Robert Mueller on Trump’s potential obstruction of the Russia investigation.

Earlier this month, the White House instructed McGahn not to comply with the document request from the committee and demanded Nadler’s panel take its requests directly to the White House. McGahn did not turn over the documents sought by the panel.

On Monday, the White House released a legal opinion from the Justice Department arguing McGahn should not appear for testimony over concerns about separation of powers.

The Justice Department’s Office of Legal Counsel (OLC) said in its 15-page letter that McGahn is not “legally required” to testify about matters related to his work for Trump, citing decades of precedent under Democratic and Republican administrations in asserting White House aides cannot be compelled to speak to Congress about their official duties.

“The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers,” the letter states.

Burck pointed to the OLC opinion in his letter as well as the letter White House counsel Pat Cipollone sent to Nadler earlier in the day.

“As with the subpoena for documents, Mr. McGahn again finds himself facing contradictory instructions from two co-equal branches of government,” Burck wrote. “Under these circumstances, and also conscious of the duties he, as an attorney, owes to his former client, Mr. McGahn must decline to appear at the hearing tomorrow.”

Burck went on to write that McGahn would comply in the event the committee reaches an agreement with the White House on his testimony but said otherwise he is “obligated to maintain the status quo.”

In a subsequent letter to McGahn released Monday evening, Nadler described Trump’s action as unprecedented and the Justice Department’s opinion as unsupported by relevant case law. Nadler warned that McGahn risks “serious consequences” in failing to show up for the hearing on Tuesday. 

“The Committee is prepared to use all enforcement mechanisms at its disposal,” Nadler wrote. 

Trump and his administration have taken steps to thwart a front of investigations run by House Democrats, accusing them of overreach and attempting to damage the president politically as he mounts his reelection bid. Democrats have grown furious, accusing the Trump administration of ignoring their legitimate oversight and investigative powers at an unprecedented level.

Nadler has signaled he would look to hold McGahn in contempt of Congress for failing to comply with the subpoena — something Burck’s letter acknowledges.  

Trump told reporters Monday afternoon that the White House counsel is trying to safeguard the office of the president, describing it as a “very important precedent.”

“I think it’s a very important precedent,” Trump said before departing for a campaign rally in Pennsylvania. “They’re doing it for the office of the presidency.”