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Trump blocks former White House Counsel Donald McGahn from testifying before Congress

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Former White House Counsel Donald McGahn in September.
(Brendan Smialowski / AFP-Getty Images)

President Trump directed his former White House counsel, Donald McGahn, not to appear at a House Judiciary Committee hearing on Tuesday despite receiving a subpoena from the panel’s Democratic chairman, the latest salvo in a battle between two warring branches of government.

But as the legal and political turmoil grew, a federal judge in Washington upheld a separate Democratic subpoena for Trump’s personal and business financial records, a signal that the staunch White House resistance to congressional probes may serve to delay the investigations but not avoid them altogether.

The ruling is the first by a federal judge considering Trump’s legal efforts to avoid congressional subpoenas and could set a legal precedent for other judges to consider.

Trump has refused to cooperate with multiple House-led inquiries into his business practices, his taxes, security clearances at the White House and other matters. His administration has defied several House subpoenas and directed current and former officials not to testify at hearings certain to draw public scrutiny back to the investigation led by special counsel Robert S. Mueller III.

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In his ruling Monday, U.S. District Court Judge Amit Mehta dismissed Trump’s claim that a subpoena last month from the House Oversight and Reform Committee, which is led by Democrats, was politically motivated and amounted to an abuse of power.

Mehta ruled that the accounting firm Mazars USA must comply with the panel’s demand for eight years of Trump’s financial records as it investigates whether he committed financial crimes as a New York real estate developer and businessman before he entered the White House.

The constitution clearly gives Congress the right to investigate the president on matters of potential conflicts of interest and other criminal behavior, Mehta wrote.

“History has shown that congressionally-exposed criminal conduct by the President or a high-ranking Executive Branch official can lead to legislation,” Mehta wrote, citing the Watergate investigation by the Senate.

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“It is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct — past or present — even without formally opening an impeachment inquiry,” he added.

Rep. Elijah E. Cummings (D-Md.), chairman of the committee that issued the subpoena, hailed the judge’s ruling as “a resounding victory for the rule of law and our constitutional system of checks and balances.”

Trump, who spoke to reporters at the White House, called the ruling “totally the wrong decision by an Obama-appointed judge” and indicated his attorneys would file an appeal. Mehta was confirmed by the Senate in 2014.

McGahn, who served as White House counsel and was a key witness in determining whether the president obstructed justice as he fought Mueller’s 22-month special counsel investigation, had been scheduled to testify Tuesday before the House Judiciary Committee.

McGahn’s testimony figured prominently in Mueller’s final report. It detailed how Trump had instructed McGahn to fire Mueller and shut down the investigation into whether he or any associates conspired with Russian officials during the 2016 campaign. McGahn told investigators that he ignored the requests.

On Monday, the White House released a legal opinion from the Justice Department that provides McGahn with an argument to explain his decision not to comply with the subpoena from the committee chairman, Rep. Jerrold Nadler (D-N.Y.).

“I think it’s a very important precedent,” Trump told reporters, contending that his lawyers’ efforts to prevent McGahn and other officials from testifying to Congress are intended to protect the constitutional separation of powers, not to protect him. “They’re doing it for the office of the presidency,” he said.

Nadler has threatened to hold McGahn in contempt for failing to testify, and indicated that Tuesday’s hearing will take place as scheduled.

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“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.”

William Burck, McGahn’s lawyer, said in a statement that McGahn “will respect the President’s instruction” not to testify.

“In the event an accommodation is reached between the Committee and the White House, Mr. McGahn will of course comply with that accommodation,” he added.

Even though much of McGahn’s testimony was disclosed when the Justice Department released a redacted version of Mueller’s 448-page report last month, the Office of Legal Counsel opinion contends that Trump can invoke executive privilege and bar his former attorney from being forced to answer lawmakers’ questions about his tenure in the White House.

“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,” Assistant Atty. Gen. Steven A. Engel wrote.

“Those principles apply to the former White House Counsel. Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as Counsel to the President,” he added.

In a letter to Nadler summarizing the legal opinion, the current White House counsel, Pat Cipollone, declared that McGahn is “absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior adviser to the President.”

Cipollone said the president had directed McGahn not to appear at the House hearing Tuesday.

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“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,” he added.

Trump has wrongly claimed that Mueller’s report amounts to an exoneration, even though 10 instances of potential obstruction of justice are described in detail — some based on McGahn’s sworn testimony.

Atty. Gen. William Barr has tried to focus the public on Mueller’s top-line conclusion that Trump’s campaign did not conspire with any Russian officials during the 2016 presidential race.

Mueller made no decision as to whether Trump had obstructed justice, in part because of Justice Department guidelines that say a sitting president cannot be indicted, but Barr later decided that there was insufficient evidence to recommend charges.

Democrats, who retook control of the House last November, have issued a flurry of subpoenas aimed at bringing key Trump associates before lawmakers to answer questions.

But Trump has continued to defy Democrats, thumbing his nose at the House’s constitutionally assigned oversight role and claiming that the ongoing investigations are motivated by politics rather than a determination to follow the facts.

In a statement, Sarah Huckabee Sanders, the White House press secretary, said the White House was “completely transparent” with the special counsel investigation.

“The Special Counsel received more than 1.4 million documents and hours and hours of interviews from White House officials, including more than 30 hours from former Counsel to the President, Don McGahn,” Sanders said.

“The Democrats do not like the conclusion of the Mueller investigation — no collusion, no conspiracy, and no obstruction — and want a wasteful and unnecessary do-over,” she continued.

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