Don McGahn hopes Jerry Nadler will forgive him for not showing up to testify at a scheduled hearing on Capitol Hill Tuesday.
See, it’s not so much that Don doesn’t want to come (he doesn’t, but that’s not the problem), as much as it is that Donald Trump won’t let him.
As we wrote back on April 22, when Nadler subpoenaed McGahn, Don would be the odds-on favorite for “best supporting actor” if the Mueller probe were an international crime drama or, say, a spy thriller.
McGahn’s “extensive” cooperation with Mueller was, by some accounts, the product of an overactive imagination. According to multiple reports late last summer, McGahn was under the (ultimately mistaken) impression that Trump was setting him up to be the fall guy on an obstruction charge. In other words: Don was paranoid.
While he may have been wrong to assume that Trump’s outside lawyers were setting him up, McGahn was right to be concerned about the seriousness of what he found himself wrapped up in. He featured heavily in the Mueller report, and as the media and Congress raced to parse the 400-page tome, some of the first takeaways related to discussions in and around the president’s efforts to get rid of the special counsel. As it turns out, McGahn’s refusal to carry out certain of Trump’s directives in that regard helped inoculate the president against obstruction allegations.
McGahn’s prominent role in the Mueller report meant Democrats would surely seek to secure his testimony – in public, if possible. “Mr. McGahn is a critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Mueller report”, Nadler said last month, adding that “his testimony will help shed further light on the President’s attacks on the rule of law, and his attempts to cover up those actions by lying to the American people and requesting others do the same.”
Fast forward a month, and the Justice Department figured a way out of this. First, the DoJ rolled out a brand new legal opinion from the digital pen of Steven Engel. It’s more than a dozen pages long and essentially states that Congress can’t make Trump’s senior advisers testify regarding their official duties. Next, Pat Cipollone sent Nadler a letter citing Engel, asserting constitutional immunity for McGahn and advising the committee that Trump had instructed Don not to show up. Both letters can be found below.
“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”, Sarah Sanders said in a statement.
Last week, Cipollone rejected Nadler’s March request for documents and records. In the letter that accompanied that rejection, Cipollone challenged Congress’s authority to investigate Trump for obstruction citing – and I kid you not – no “do-overs”.
As Sanders alluded to Monday, there’s some history here which suggests Engel isn’t entirely out of bounds. Apparently, a dearth of controlling precedent (thanks to a lack of appeals court rulings in prior instances where the executive branch has sought to block testimony and/or document requests) means this issue isn’t settled. That opens the door to a protracted legal battle.
“If, as seems likely, the fight over Mr. McGahn’s documents and testimony ends up in court, Mr. Trump’s legal team will have to overcome a legal rationale embraced by another District Court judge, Amy Berman Jackson, in a case that raised similar issues”, the New York Times wrote Monday, referencing a ruling that the Obama administration could not block lawmakers from “subpoenaing documents whose ‘sum and substance’ were already revealed in a public inspector general report.”
That would presumably apply to McGahn given that the administration released the redacted Mueller report before ultimately asserting executive privilege over the unredacted version and supporting evidence earlier this month. “Still, that case was also resolved without any appeals court ruling that would have created a controlling precedent”, the Times goes on to say. The “also” references a 2008 ruling which determined George Bush’s former White House counsel did not have the right to defy a subpoena.
In any event, Nadler’s tone was one of fatalistic exhaustion. “[This is] the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this committee”, he said. “It is also the latest example of this administration’s disdain for law.”
McGahn’s lawyer essentially asked Nadler not to blame Don. “It is our view that the committee’s dispute is not with Mr. McGahn but with the White House”, William Buck wrote to Nadler.
Sanders would have you believe this actually isn’t about Trump at all. Rather, the president and the DoJ are just trying to protect future presidents. “This action has been taken in order to ensure that future presidents can effectively execute the responsibilities of the office of the presidency”, Sanders mused.
Asked about the decision to instruct McGahn to defy a congressional subpoena, Trump agreed with Sanders. “[It’s] for future presidents”, he said. “Not for me”.