President Donald Trump Monday ordered former White House Counsel Don McGahn to not testify at a House Judiciary Committee hearing scheduled for Tuesday, with the administration saying the former adviser has “absolute immunity” and is not legally required to comply with a congressional subpoena.
The move was not unexpected as part of Trump’s “oppose-all-the-subpoenas” stance since the conclusion of the special counsel investigation last month. But it further escalates the separation-of-powers showdown between the Trump administration and congressional oversight.
In a letter to committee Chairman Jerrold Nadler, D-N.Y., current White House Counsel Pat Cipollone wrote that an internal Justice Department opinion determined that Congress cannot compel the president’s senior advisers to testify about their official duties.
“This long-standing 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,” Cipollone wrote.
Legal experts quickly pointed out that the Justice Department opinion from the Office of Legal Counsel does not say McGahn, who left the job in October, can be barred from testifying voluntarily.
“Although OLC’s opinion says the President can ‘direct’ McGahn not to testify, it identifies absolutely zero legal basis through which the President could _stop_ McGahn from appearing voluntarily,” Texas University law professor Steve Vladeck tweeted.
The OLC opinion draws limits on congressional power in other ways. It concludes that lawmakers could not lawfully exercise any inherent contempt power — such as fine or jail — for a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee.
The committee will still convene Tuesday morning and McGahn “is expected to appear as legally required,” Nadler said in a news release. He added that a federal court ruled that even senior advisors to the president cannot simply refuse to show up in response to a congressional subpoena.
Nadler also called it “absurd” for Trump to claim privilege over McGahn’s testimony when it was already described in the report from Special Counsel Robert S. Mueller III, and “even more ridiculous” to extend the privilege to cover events before and after McGahn’s stint in the White House.
“This move is just the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this Committee,” Nadler said. “It is also the latest example of this Administration’s disdain for law.”
Rep. Doug Collins of Georgia, the committee’s top Republican, faulted Democrats for subpoenaing a witness who is categorically immune from testifying, adding that information from McGahn is in the Mueller report.