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Will the White House or Trump’s lawyers block Don McGahn from testifying?

President’s team is examining case law for possible claim of executive privilege or immunity

The House Judiciary Committee has issued a subpoena for former White House Counsel Don McGahn to testify before the panel. (Tom Williams/CQ Roll Call file photo)
The House Judiciary Committee has issued a subpoena for former White House Counsel Don McGahn to testify before the panel. (Tom Williams/CQ Roll Call file photo)

White House officials have yet to determine whether they will exert executive privilege to block all or some of Don McGahn’s possible testimony to Congress, after Robert S. Mueller III’s report portrayed him as defying the president’s orders to hinder the special counsel’s investigation.

The report, released in redacted form last week, details several early instances when the White House counsel refused to follow through with President Donald Trump’s orders to remove Mueller. Trump has since criticized McGahn without naming him, and a decision on allowing him to appear before congressional panels — and how much he might be permitted to say — is still pending, White House aides say.

In the aftermath of most of Mueller’s report being made public, House Judiciary Chairman Jerrold Nadler issued a subpoena for McGahn’s testimony next month. The New York Democrat, who has history with Trump, called McGahn “a critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Special Counsel’s report.”

But White House officials are still reviewing Nadler’s subpoena.

[Sarah Sanders lashes out at Democrats, April Ryan over calls for her firing]

“It’s up to the attorneys,” Principal Deputy Press Secretary Hogan Gidley told reporters when asked a first time if the current White House counsel, Pat Cipollone, would make the decision or if Trump’s outside lawyers would do so.

Gidley wasn’t clear which attorneys he was referring to — Trump’s or the White House counsel. Asked to clarify by Roll Call, he said he would seek more information and report back. 

Another White House official said any invocation of executive privilege — a right used by presidents of both parties for decades to keep private consultations with senior White House aides confidential — would be made by Cipollone and his team of internal White House lawyers.

Question of immunity

But what is murkier would be any attempts to prevent or limit McGahn’s testimony by asserting that his time in the White House would allow him or Trump to claim he has absolute immunity under the authorities of the Executive Office of the President, the White House official said. That leaves the door open to non-White House lawyers at least being involved in deciding whether to lay that card before Nadler, the official added.

Should the Trump team or the McGahn camp attempt to claim immunity, the House Judiciary Democrats would be able to sue, sending the matter to the courts.

Notably, a GOP White House and a Democrat-controlled House Judiciary Committee have been here before: More than a decade ago, President George W. Bush’s former top counsel, Harriet Miers, and former chief of staff, Joshua Bolten, refused to comply with subpoenas issued by the committee.

Bush “asserted executive privilege in each case, asserting that the subpoenaed testimony and documents involved protected White House communications. Both Miers and Bolten relied on the President’s determination as justification for non-compliance with the committee subpoenas,” according to a Congressional Research Service report from last month. 

[Pelosi again urges caution on Trump impeachment, post-Mueller report]

The D.C. district court judge who heard the case, John D. Bates, ruled for the Judiciary Committee. He wrote in his opinion that he “reject[ed] the Executive’s claim of absolute immunity for senior presidential aides,” directing Miers and Bolten to comply with the subpoenas.

“Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role,” wrote Bates, a Bush appointee. “Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate the Congress’s oversight functions.”

Witness in demand

Nadler and other Democrats in recent days have described McGahn as a star witness for their probes in a post-Mueller world.

The special counsel’s findings, based on interviews and notes with former and current White House officials, uncovered multiple instances when McGahn and other high-ranking West Wing officials ignored a presidential order to protect both their boss and themselves.

“In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call [Deputy Attorney General Rod Rosenstein] and say that Mueller had conflicts that precluded him from serving as Special Counsel,” Mueller’s team wrote. McGahn told the special counsel investigators he refused the order and instead informed Trump’s chief of staff at the time, Reince Priebus, he planned to step down.

Why? Because he had grown uncomfortable with Trump asking him to do “crazy s—,” according to testimony Priebus gave to Mueller’s team. Ultimately, McGahn was talked out of quitting by Priebus and others.

‘Impeachment narrative’

Gidley, meanwhile, accused Nadler of only wanting to continue with his own investigation of Trump’s 2016 campaign and presidency.

“It’s pretty clear what Jerry Nadler and others are trying to do here. They don’t want to get to the truth,” he told reporters outside the West Wing. “They want to get to this president. And at this point, I don’t know what Jerry Nadler thinks he’s going to get that Robert Mueller didn’t, except for some political points for the base.”

“I understand why they’re doing this: Because to drop the collusion narrative, the impeachment narrative for going after the administration, they would be admitting the fact that the last two years [that] they’ve been lying to everybody has been a waste,” Gidley added.

[Trump feared ‘one of these independent counsels.’ He got something else]

But impeachment is still on the minds of many Democrats. At a marathon CNN town hall Monday for a handful of the party’s 2020 presidential hopefuls, Sens. Elizabeth Warren of Massachusetts and Kamala Harris of California both endorsed moving toward an attempt to impeach the 45th president.

South Bend, Indiana, Mayor Pete Buttigieg said Trump “deserves impeachment” but sidestepped on whether he wants the House to get started. Vermont independent Sen. Bernie Sanders said he does not yet support impeachment. Minnesota Sen. Amy Klobuchar took no stand on impeaching Trump but said Mueller found “very disturbing things that would lead you to believe there’s obstruction of justice.”

On a 90-minute conference call with her caucus late Monday afternoon, Speaker Nancy Pelosi urged House Democrats to allow Nadler’s panel and others to continue their investigations of most things Trump. But the California Democrat did not rule out impeachment proceedings down the road — part of the tightrope she is walking to keep her ranks in line while avoiding an overreach like House Republicans did in 1998 when they impeached President Bill Clinton without the votes to remove him in the Senate.

White House aides pushed back on the impeachment talk, saying Democrats are ignoring Mueller’s 448-page report and the chance to work with Trump on bipartisan legislation. 

“So many of them ran on working with this president on things like infrastructure, immigration, health care,” Gidley said.