President Trump’s former counsel Don McGahn is immune to demands to testify to Congress, argues a letter from the White House to Rep. Jerry Nadler, D-N.Y., the chairman of the House Judiciary Committee.
Nadler had ordered McGahn to appear before his panel on Tuesday.
In the letter Monday signed by White House counsel Pat Cipollone, Nadler was informed the decision was based on the opinion of the Justice Department.
Nadler has been frustrated by the fact that special counsel Robert Mueller found the president and his campaign did not collude with Russia during the 2016 election, and no indictments are coming.
Nadler has followed up by demanding testimony from various officials in an apparent attempt to re-do the Mueller investigation.
However, the letter from the White House on Monday may throw a wrench in his plans.
The Cipollone letter explained to Nadler that McGahn has been directed by the acting chief of staff to the president, Mick Mulvaney, “not to produce the White House records sought by the subpoena because they remain subject to the control of the White House and implicate significant executive branch confidentiality interests and executive privilege.”
Nadler, instead, should direct his requests for any records to the White House, the letter said.
And regarding the committee subpoena for McGahn to appear?
“The Department of Justice … has advised me that Mr. McGahn is absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior adviser to the president.”
The letter continued: “The department has long taken the position – across administrations of both political parties – that ‘the president and his immediate adviser are absolutely immune from testimonial compulsion by a congressional committee.’
“This immunity arises from the president’s position as head of the executive branch and from Mr. McGahn’s former position as a senior adviser to the president, specifically counsel to the president.”
The president’s critics said such an explanation may not hold up in court, and that might be the Democrats’ next move in their war against President Trump.
That war, going back to before his election, has included the Obama administration spying on the 2016 Trump campaign, Obama officials submitting apparently fraudulent documents to a court to obtain spy warrants and Obama bureaucrats vowing to “stop” Trump from being elected and implement a back-up plan if the first plan failed.
“Three previous opinions … directly addressed the immunity of counsel to the president: Harriet Miers was a former counsel to President George W. Bush, Beth Nold was the current counsel to President Clinton, and Jack Quinn was the current counsel to President Clinton,” the White House letter said.
“Accordingly, Mr. McGahn cannot be compelled to appear before the committee.”
The letter explained that because “of this constitutional immunity, and in order to protect the prerogatives of the office of the presidency, the president has directed Mr. McGahn not to appear at the committee’s scheduled hearing.”
The White House said in a statement that it was completely transparent with Mueller’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,” the statement said.