U.S. House Judiciary Committee Chairman Jerrold Nadler says the committee is “prepared to use all enforcement mechanisms at its disposal” if former White House Counsel Don McGahn does not comply with an order to show up for testimony Tuesday.
In a letter to McGahn released late Monday, Nadler objected to an order from the White House instructing McGahn not to testify, and to a Justice Department legal opinion stating that Congress cannot force him to appear.
“The committee has made clear that you risk serious consequences if you do not appear tomorrow,” Nadler wrote.
He said President Donald Trump was seeking to “block a former official from informing a coequal branch of government about his own misconduct,” and that the White House order did not excuse McGahn from his obligation to testify.
Nadler further dismissed the opinion from the Justice Department’s Office of Legal Counsel as having “no support in relevant case law” with prior court rulings rejecting the arguments presented.
He said the committee wants to ask McGahn about “instances in which the president took actions or ordered you to take actions that may constitute criminal offenses, including obstruction of justice.”
McGahn’s attorney, William Burck, however, confirmed Monday evening that his client would not appear Tuesday before the House committee.
“Mr. McGahn remains obligated to maintain the status quo and respect the President’s instruction. In the event an accommodation is agreed between the Committee and the White House, Mr. McGahn will of course comply with that accommodation,” Burck said in a statement.
White House press secretary Sarah Sanders explained in a statement that the Justice Department “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.”
The Justice Department, in its legal opinion, states: “We provide the same answer that the Department of Justice repeatedly provided for five decades: Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”
“They’re doing that for the office of the presidency for future presidents,” said President Donald Trump of the Justice Department legal opinion. “They’re not doing that for me.”
”I think we’ve been the most transparent administration in the history of our country,” replied Trump to a reporter asking why not just let McGahn testify so the public can have full answers to executive action regarding the Russia investigation. “We want to get on with running the country.”
Trump spoke on the White House South Lawn before boarding Marine One for Joint Base Andrews. From there, he headed to a political rally in Pennsylvania on Air Force One.
In a letter to Nadler, the current White House Counsel to the President, Pat Cipollone, stated that Trump has directed McGahn not to appear at Tuesday’s hearing.
“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,” Cipollone writes.
The Democrats have been eager to hear from McGahn, including questioning him about potential obstruction of justice by Trump based on episodes outlined in the report of special counsel Robert Mueller from his investigation into Russia’s interference in the 2016 election.
Nadler, last week, stated he was prepared to have his committee vote to hold McGahn in contempt of Congress if the former White House counsel defied the subpoena.
One member of the committee is calling for an impeachment inquiry against the president to commence if McGahn does not testify Tuesday.
“We simply cannot sit by and allow this president to destroy the rule of law, to subvert the Constitution,” Congressman David Cicilline of the state of Rhode Island said during an interview on U.S. cable news network MSNBC.
McGahn’s name is mentioned on more than 65 pages of the 448-page Mueller report.
Monday’s pushback by the Justice Department and the White House is the latest instance of the executive branch trying to challenge for power the legislative branch of government with Trump betting the third branch – the judiciary – will back him up with rulings by federal judges, including the Supreme Court.
“That’s a dangerous game to play, though, because the judiciary is also not going to want to see erosion of their power, even if they see congressional power getting eroded,” predicts Shannon Bow O’Brien, a government professor at the University of Texas.