The White House has ordered former White House counsel Don McGahn not to turn over documents to Congress because President Trump may exert executive privilege to block their release.
Pat Cipollone, the current top White House lawyer, wrote a letter on Tuesday asking the House Judiciary Committee to go through the White House to request documents related to special counsel Robert Mueller’s Russia investigation.
“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,” Cipollone wrote to Rep. Jerrold Nadler (D-N.Y.), chairman of the Judiciary panel.
“The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant executive branch confidentiality interests and executive privilege,” Cipollone added.
Acting White House chief of staff Mick Mulvaney gave the directive “not to produce” the records through a separate letter Cipollone sent Tuesday to McGahn’s attorney.
While the letters stop short of invoking privilege, which keeps private conversations between the president and his advisers from public view, it suggests the White House might take that step to block McGahn’s testimony, which could trigger a major legal battle with congressional Democrats investigating Trump.
Democrats and some legal experts say the White House lost its ability to invoke privilege when it allowed McGahn to speak to the special counsel’s office, which then published a report containing the details of his testimony. Trump decided against making privilege assertions over the contents of the report.
Nadler issued a subpoena for documents and public testimony from McGahn last month following the release of Mueller’s report and set a deadline of 10 a.m. Tuesday for McGahn to respond to the document request.
Nadler had requested that McGahn appear to testify publicly before the committee on May 21.
A committee spokesman did not immediately return a request for comment on the White House letter Tuesday.
McGahn’s attorney, William Burck, wrote to Nadler on Tuesday in a letter obtained by The Hill that he would not turn over the documents until the committee and the White House resolve their argument over privilege claims.
“Mr. McGahn, as a former assistant to the president and the most senior attorney for the president in his official capacity, continues to owe certain duties and obligations to the president which he is not free to disregard,” Burck wrote. “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.”
Burck’s letter did not rule out the possibility that McGahn could hand over the documents to Congress at some point in the future.
Trump has said he expects to decide this week whether to invoke executive privilege to block McGahn’s testimony, but has given every indication he intends to do so. He has maintained that McGahn’s cooperation with the special counsel’s investigation was sufficient, and suggested he could prevent the former White House counsel from testifying and later not allow officials to speak before Congress either.
White House lawyer Emmet Flood argued in a letter last month to Attorney General William Bar that Trump’s decision to allow the report’s release without asserting privilege did not preclude him from invoking it to block Congress from hearing testimony from his advisers or underlying evidence related to Mueller’s investigation.
Cipollone’s letter represents the latest effort by Trump’s White House to stonewall probes in the Democrat-led House. Trump has pledged to fight “all the subpoenas” and accused Democrats of “presidential harassment.”
Speaker Nancy Pelosi (D-Calif.) said on Tuesday that the White House’s defiance of congressional subpoenas could be an impeachable offense and accused Trump of “goading us” into attempting to force him from office.
“Every day he's obstructing justice by saying this one shouldn't testify, that one shouldn't testify, and the rest. So he's making a case,” Pelosi said at Cornell University’s Institute of Politics and Global Affairs.
Nadler’s committee has zeroed in on McGahn because he is prominently featured in Mueller’s report, which details 10 instances the special counsel examined as part of its inquiry into whether Trump obstructed justice.
In one episode detailed in the report, Trump asked McGahn to have Mueller removed for alleged conflicts of interest. McGahn refused for fear it would be viewed “as triggering another Saturday Night Massacre,” and instead offered his own resignation. McGahn did not ultimately resign.
The document request touches on several events and matters relevant to special counsel Robert Mueller’s investigation into Russian interference and links between the Trump campaign and Moscow.
The committee requested documents and communications from McGahn referring and related to: former national security adviser Michael Flynn’s resignation or termination; James Comey’s termination as FBI director; former Attorney General Jeff Sessions’s recusal from matters related to the presidential campaign; and the resignation or termination of Sessions “whether contemplated or actual.”
Democrats also asked for documents related to the appointment of Mueller as special counsel; Mueller’s resignation or termination “whether contemplated or actual”; and McGahn’s resignation or termination “whether contemplated or actual.”
The panel is also seeking documents referring or related to the June 2016 Trump Tower meeting; contemplated or actual presidential pardons for members and associates of the campaign including Flynn, Paul Manafort, Michael Cohen, and Roger Stone; and any documents referenced in Mueller’s 448-page redacted report.
Rep. Doug Collins (Ga.), the Judiciary committee’s top Republican, accused Democrats of making “unwieldy demands” and urged Nadler to accept the “reasonable offer” from the White House.
“As I said more than a month ago, when Democrats subpoenaed Don McGahn, they subpoenaed the wrong person,” Collins said in a statement. “The White House is nevertheless seeking to accommodate Democrats’ unwieldy demands. I hope Chairman Nadler accepts this reasonable offer rather than continuing to reject good faith offers to negotiate.”
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