DOJ informs Nadler that McGahn can not be forced to testify

The White House sent a letter to House Judiciary Committee Chairman Jerry Nadler Monday afternoon informing him former White House Counsel Don McGahn will not be complying with a subpoena for testimony.

“At the President’s direction, the White House has been completely transparent with the Special Counsel’s 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. 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,” White House Press Secretary Sarah Sanders released in a statement.

“The House Judiciary Committee has issued a subpoena to try and force Mr. McGahn to testify again. 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,” she continued. “This action has been taken in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the Presidency.”

Shortly before the White House announcement, the Department of Justice issued a 15-page memo explaining the legal precedent for why the Trump administration is capable of keeping McGahn from testifying.

“We provide the same answer that the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the President’s senior advisors to testify about their official duties. This testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress,” the memo states, citing actions by former Clinton Attorney General Janet Reno and others. “The immunity of the President’s immediate advisors 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. This immunity applies 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.”

Speaking to CNN, Judiciary Committee chairman Jerrold Nadler said the panel would hold McGahn in contempt of Congress for not testifying.

Earlier, he said the instruction was “just the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this committee”.

“The president acted again and again – perhaps criminally – to protect himself from federal law enforcement. Don McGahn personally witnessed the most egregious of these acts,” he said in a statement.