Congress cant compel Don McGahn to testify on Mueller report, Justice Department says

Congress cant compel Don McGahn to testify on Mueller report, Justice Department says

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May 20, 2019, 7:34 PM UTC / Updated May 20, 2019, 8:23 PM UTC

By Dartunorro Clark

President Donald Trump has directed former White House counsel Don McGahn to defy a congressional subpoena and not testify Tuesday, current White House counsel Pat Cipollone said Monday.

In a letter to House Judiciary Chairman Jerrold Nadler, D-N.Y., Cipollone wrote that the Justice Department “has advised me that Mr. McGahn is absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior adviser to the President.”

He added, “the President has directed Mr. McGahn not to appear at the Committee’s scheduled hearing” on Tuesday.

A committee source told NBC News it has received Cipollone’s Monday letter, but it has not yet heard from McGahn’s legal team about his scheduled testimony on Tuesday. The source added that a hearing is still expected and suggested that McGahn could show up and not answer questions.

Rep. Doug Collins, R-Ga., the ranking member of the House Judiciary Committee, criticized Nadler for subpoenaing McGhan, suggest that the chairman read McGahn’s testimony documented in Mueller’s report instead.

“What better way to ensure we don’t hear from McGahn this week than by subpoenaing a witness who’s categorically immune from testifying?” Collins tweeted. “

McGahn had been subpoenaed by Nadler’s committee to answer questions about Mueller’s investigation of President Donald Trump and Russian interference in the 2016 election. The Justice Department, in a legal opinion made public Monday, said McGahn could not legally be compelled to testify, citing the principle of the separation of powers.

Sources close to McGahn say they have received the Justice Department’s legal opinion and a letter from the White House instructing McGahn not to testify, which are being reviewed.

Last month, Trump said that his administration is “fighting all the subpoenas” and that he has been the “most transparent president and administration in the history of our country by far.”

McGahn was a key witness in Mueller’s probe into whether the president attempted to derail the investigation. Mueller’s 448-page report said, for example, that Trump ordered McGahn to tell Deputy Attorney General Rod Rosenstein that “Mueller has to go.” McGahn resisted those efforts despite Trump’s insistence, the report said. But, when news of those events were first reported in The New York Times months later, Trump sought to have McGahn deny it and write a letter “for our records” changing his story.

McGahn, who left the administration last year, was subpoenaed in April by Nadler for testimony and documents as part of the panel’s investigation into possible obstruction of justice by the president and others.

However, Cipollone sent a letter to Nadler in early May objecting to the request. Cipollone did not assert executive privilege in the letter but suggested that the White House considers the documents privileged.

Cipollone argued that the documents “remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege,” adding that McGahn “does not have the legal right to disclose these documents.

Acting White House chief of staff Mick Mulvaney also directed McGahn not to produce the subpoenaed White House records because the White House is the “appropriate legal custodian.” Cipollone added that the Department of Justice “is aware of and concurs with this legal position.”

Kelly O’Donnell and Alex Moe contributed.

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