Former White House Special Counsel Don McGahn was scheduled to appear before Congress Tuesday. He was expected to provide key testimony on whether President Donald Trump obstructed justice during the Mueller probe. But his lawyers said that he would not be appearing, following the administration’s questionable assertion that the president’s former advisors “have immunity.” As the Washington Post reported:
The 15-page legal opinion written by Assistant Attorney General Steven A. Engel argues McGahn cannot be compelled to testify before the committee, based on past Justice Department legal opinions regarding the president’s close advisers.
The memo says McGahn’s immunity from congressional testimony is separate and broader than a claim of executive privilege.
Writing in the Washington Post op-ed section, conservative columnist Jennifer Rubin observes how legally thin that argument is.
“President Trump’s lawyers now generate a nonstop stream of frivolous defenses in his all-out assault on Congress,” she writes. “On Monday, they made the ludicrous claim that former White House counsel Donald McGahn, who provided evidence to special counsel Robert S. Mueller III that wound up in the redacted Mueller report, cannot come tell Congress and the American people what he told Mueller.”
Rubin spoke with legal experts who back her assertion that the move is blatantly political and judicially unjustifiable.
“Former federal prosecutor Mimi Rocah tells me, ‘This is a political move, not a real legal one and I don’t believe it would be upheld by a court.’ She explains, ‘None of the rationales cited for this immunity, which is far broader than Executive Privilege, apply here. But they needed to give McGahn cover to say no.’”
Rubin notes that courts have previously rejected broad executive privilege for White House advisors. If anything, the legal opinion just gives McGahn cover to refuse to tell Congress what he told Special Counsel Robert Mueller.
Former Justice Department spokesperson Matthew Miller was also appalled by the administration efforts to stonewall Congress and called on McGahn to appear regardless of what the White House does.
“’McGahn should do his patriotic duty and show up.’ However, he noted that McGahn has been all too willing to leak stories that make himself sound heroic, but ‘when it comes time to put his country first, he’s falling into line just like the rest of the acolytes around the president.’”
Despite the president’s refusal to comply with Congressional subpoenas, Rubin sees hope in the courts.
“We see a crack opening in Trump’s unconstitutional stonewall strategy. It’s the courts that might have the will and the ability to defuse a constitutional standoff.”