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McGahn defies subpoena to testify and faces contempt of Congress vote

House Judiciary Committee hearing on “Oversight of the Report by Special Counsel Robert S. Mueller III: Former White House Counsel Donald F. McGahn II?, Washington, USA - 21 May 2019
The empty chair of former White House Counsel Donald McGahn prior to the House Judiciary Committee hearing he refused to attend on Tuesday in Washington.
(Shawn Thew / EPA-Shutterstock)

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) gaveled open a Trump-Russia hearing Tuesday with a stern warning that former White House Counsel Donald McGahn would be held in contempt for defying a congressional subpoena and failing to appear.

“Our subpoenas are not optional,” Nadler said. “This committee will have no choice but to enforce the subpoena against him.”

Democrats are facing yet another attempt by President Trump to stonewall their investigations. This time they’ve been blocked from hearing from McGahn — a chief eyewitness to the president’s handling of the Russia investigation — on orders from the White House.

Rep. Doug Collins of Georgia, the ranking Republican on the Judiciary Committee, spoke scornfully of Nadler’s position, saying the chairman preferred a public “fight over fact-finding.”

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The committee voted to adjourn the hearing immediately after Collins’ remarks.

A lawyer for McGahn said he would follow the president’s directive and skip Tuesday’s hearing, leaving the Democrats without yet another witness — and a growing debate within the party about how to respond.

House Speaker Nancy Pelosi (D-San Francisco), backed by Nadler, is taking a step-by-step approach to the confrontations with Trump. Nadler said the committee would vote to hold McGahn in contempt, and take the issue to court.

“You face serious consequences if you do not appear,” Nadler warned McGahn in a letter on the eve of the hearing. Democrats were encouraged by an early success on that route as a federal judge ruled against Trump on Monday in a financial records dispute with Congress.

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But that hasn’t been swift enough for some members of the Judiciary panel who feel that Pelosi should be more aggressive and launch impeachment hearings that would make it easier to get information from the administration. Such hearings would give Democrats more standing in court and could stop short of a vote to remove the president.

The issue was raised in a meeting among top Democrats on Monday evening, where some members confronted Pelosi, arguing to open impeachment hearings, according to three people familiar with the private conversation who requested anonymity to discuss it.

Maryland Rep. Jamie Raskin made the case that launching an impeachment inquiry would consolidate the Trump investigations as Democrats tried to keep focus on their other work, according to the people.

Pelosi pushed back, noting that several committees are conducting investigations already and that they have already been successful in one court case. But the members, several of whom have spoken publicly about the need to be more aggressive with Trump, are increasingly impatient with the careful approach. Other Democrats in the meeting siding with Raskin included Rhode Island Rep. David Cicilline, California Rep. Ted Lieu and freshman Colorado Rep. Joe Neguse.

Just before the start of the meeting, Cicilline tweeted: “If Don McGahn does not testify tomorrow, it will be time to begin an impeachment inquiry of @realDonaldTrump.”

In the hours after the discussion, Pelosi and Nadler met privately. Shortly after emerging from that meeting, Nadler said “it’s possible” when asked about impeachment hearings. But he noted that Democrats had won a court victory without having to take that step.

“The president’s continuing lawless conduct is making it harder and harder to rule out impeachment or any other enforcement action,” Nadler said.

McGahn’s refusal to testify is the latest of several White House moves to block Democratic investigations of Trump, who has said his administration will fight “all of the subpoenas.” The Judiciary Committee voted to hold Atty. Gen. William Barr in contempt earlier this month after he declined to provide an unredacted version of special counsel Robert S. Mueller III’s report. And the House Intelligence Committee is expected to take a vote on a separate “enforcement action” against the Justice Department this week after Barr refused a similar request from that panel.

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McGahn’s lawyer, William Burck, said in a letter to Nadler that McGahn was “conscious of the duties he, as an attorney, owes to his former client” and would decline to appear.

Still, Burck encouraged the committee to negotiate a compromise with the White House, saying his client “again finds himself facing contradictory instructions from two co-equal branches of government.”

McGahn was a key figure in Mueller’s investigation, sitting for hours of interviews, describing ways the president sought to curtail that federal probe. Democrats have hoped to question him as a way to focus attention on Mueller’s findings and further investigate whether Trump did obstruct justice.

If McGahn were to defy Trump and testify before Congress, it could endanger his own career in Republican politics and put his law firm, Jones Day, in the president’s crosshairs. Trump has mused about instructing Republicans to cease dealing with the firm, which is deeply intertwined in Washington with the GOP, according to one White House official and a Republican close to the White House not authorized to speak publicly about private conversations.

“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 in a statement. “It is also the latest example of this administration’s disdain for law.”

Administration officials mulled various legal options before settling on providing McGahn with a legal opinion from the Department of Justice to justify defying the subpoena.

“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 department’s opinion reads. “Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as Counsel to the President.”

A federal judge rejected a similar argument in 2008 in a dispute over a subpoena for Harriet Miers, who was White House counsel to President George W. Bush. U.S. District Judge John Bates said it was an unprecedented notion that a White House official would be absolutely immune from being compelled to testify before Congress. Miers had to show up for her testimony, but still had the right to assert executive privilege in response to any specific questions posed by legislators, said the judge.

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But in 2014, under the Obama administration, the Justice Department issued an opinion arguing that if Congress could force the president’s closest advisors to testify about matters that happened during their tenure, it would “threaten executive branch confidentiality, which is necessary (among other things) to ensure that the President can obtain the type of sound and candid advice that is essential to the effective discharge of his constitutional duties.”


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