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White House invokes executive privilege to bar former counsel from turning over documents to Congress

Former White House counsel Don McGahn listens during a hearing of the Senate Judiciary Committee last year. (Brendan Smialowski/AFP/Getty Images)

The White House on Tuesday invoked executive privilege to bar former White House counsel Donald McGahn from complying with a congressional subpoena to provide documents to Congress related to special counsel Robert S. Mueller III’s investigation.

The move triggered an immediate showdown with House Democrats, who threatened to hold McGahn in contempt of Congress if he refused to testify before the committee this month.

In a letter to the House Judiciary Committee, White House counsel Pat A. Cipollone said McGahn does not have the legal right to comply with its subpoena for 36 types of documents — most related to Mueller’s nearly two-year probe of Russian interference in the 2016 election. Rather, Cipollone argued the committee needed to send the request to the White House — and even hinted the administration would assert privilege to block the information.

President Trump told reporters on April 24 that the White House will fight to block House Democrats from questioning current and former aides. (Video: The Washington Post)

“The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with the clear understanding that the records remain subject to the control of the White House for all purposes,” he wrote. “The White House records remain legally protected from disclosure under long-standing constitutional principles, because they implicate significant executive branch confidentiality interests and executive privilege.”

But Democrats rejected the White House moves as illegitimate, arguing that the Trump administration hadn’t officially completed the paperwork to assert privilege. And even if it had, the committee continued, it would not apply because the White House waived privileged for McGahn long ago.

In a Tuesday night letter to McGahn, Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) threatened to hold the former White House lawyer in contempt of Congress if he refused to testify before the committee in two weeks, when he faces another deadline to answer questions publicly.

Senate Majority Leader Mitch McConnell (R-Ky.) sidestepped three questions on April 30 about whether congressional subpoenas were mandatory. (Video: The Washington Post)

“I fully expect that the Committee will hold Mr. McGahn in contempt if he fails to appear before the Committee, unless the White House secures a court order directing otherwise,” Nadler warned in the letter.

Nadler added: “To be clear, a letter from the White House in service of the President’s apparent goal of blocking or delaying testimony that the President believes would be politically damaging is not a basis for Mr. McGahn to violate his legal obligation to appear before the Committee. Rather, if the President wishes to block Mr. McGahn’s appearance in the face of a duly issued subpoena, the burden rests with the White House to file an action in court to attempt to do so.”

House Democrats were hoping to make McGahn their star witness as they seek to unpack the findings of the Mueller report — particularly regarding questions of whether Trump obstructed justice. Trump and his administration have thwarted multiple House probes into the report, the president’s businesses and efforts to obtain his tax returns, frustrating Democrats who said they are trying to conduct oversight.

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McGahn emerged as a central player in Mueller’s findings, a senior confidante who documented in real-time Trump’s rage against the Russia investigation and efforts to shut it down. Democrats want him to testify for a national television audience about the two episodes in which Mueller found McGahn was a critical witness and in which investigators say they have substantial evidence Trump was engaged in obstruction of justice that would normally warrant criminal charges.

In mid-June of 2017, Trump tried to pressure McGahn to intervene with the Justice Department to try to push for Mueller’s removal from office based on alleged conflicts of interest, the report said. Then, in February 2018, Trump summoned McGahn to the Oval Office and urged him to deny a news account that suggested the president asked for his help in ousting Mueller.

But Trump has said he would block McGahn’s testimony expected by May 21. And the White House in a mid-April letter to the Justice Department argued that while Trump did not assert executive privilege for the Mueller investigation, allowing aides like McGahn to cooperate, he could still do so for any witnesses asked to appear before Congress.

The White House move in this case is considered a partial or hybrid form of asserting executive privilege, because the White House counsel is attempting to avoid a direct showdown and instead negotiate directly with the committee and extend discussions.

While the White House explicitly cited executive privilege in its letter to the panel Tuesday morning, it has not yet formally gone though the process to make such a move. A formal claim of executive privilege must be made by the president and accompanied by a letter from the attorney general.

But a bigger dispute still looms over whether the White House will try to block McGahn from testifying in person to the committee. In that case, McGahn may find it more difficult to refuse to testify unless the White House makes the more formal claim of executive privilege.

A White House official said Trump is likely to formally assert the privilege if the Democrats continue to push McGahn for documents. Emmet Flood, a White House lawyer who has been involved in oversight matters, was conspicuously not part of the letter — and is leaving the administration shortly, said the official, who spoke on the condition of anonymity to freely discuss private talks.

Trump does not want McGahn or any other former White House official to testify on Capitol Hill and has told lawyers to take necessary steps to block it. Some in the White House see the legal arguments as dubious because the administration has already waived privilege for the Mueller report. 

During the Mueller probe, McGahn wanted the White House to assert executive privilege so he did not have to testify to Mueller’s investigation. He said Ty Cobb, the former Trump lawyer, was “throwing him to the wolves,” according to people familiar with the conversations who spoke on the condition of anonymity to freely talk about discussions.

Now, people say McGahn is more torn on testifying or cooperating — after having a tumultuous relationship with Trump for two years. 

William Burck, McGahn’s attorney, wrote the committee Tuesday that his client is caught between demands from the White House and Congress and will not turn over the records at this point. Instead, he said, McGahn will allow the White House to proceed in its plans to negotiate directly with the committee over the subpoena for records.

“Where coequal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the Committee and the executive branch can reach an accommodation. Please note Mr. Cipollone writes that his office will respond to the Committee about the White House documents,” Burck wrote.

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Traditionally, a senior adviser’s private communications with the president would be shielded by executive privilege to allow a president to seek the honest counsel of his aides without fear of their full-throated discussions being shared with the public while he is in office. However, in this case, McGahn’s private discussions with Trump during these two critical episodes are clearly documented in the Mueller report and available for the public to review in detail.

“The key waiver was the attorney general’s release of the Mueller report, that made it public,” said former House counsel Irvin B. Nathan, who worked under Rep. Nancy Pelosi (D-Calif.) during her first term as speaker. “There’s no justification for executive privilege any longer — and there’s not a chance that any court would say that executive privilege has not been waived.”

Democrats on the panel also hold this view.

“McGahn has every right to testify . . . He has a responsibility to testify,” said House Judiciary Committee member Jamie B. Raskin (D-Md.), who did not know what the panel would do if McGahn refused to answer his subpoena. “Any relevant executive privilege [claim] was waived long ago when McGahn went and spent more than 30 hours being interviewed by the special counsel, so it’s very hard to imagine that you can put the toothpaste back in the tube.”

The matter, should McGahn go along with the White House move, may ultimately wind up in court. But at the very least, McGahn probably will have a difficult decision to make: to follow the White House’s lead and face contempt or defy the president and risk the wrath of his allies.

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