WASHINGTON -- President Donald Trump on Monday directed his former White House counsel, Don McGahn, to defy a congressional subpoena and skip a hearing scheduled for today, denying House Democrats testimony from one of the most important eyewitnesses to Trump's attempts to obstruct the Russia investigation.
Separately on Monday, a federal judge in Washington ruled against Trump in a financial records dispute, declaring the president cannot block a House subpoena for information from Mazars USA, a firm that has done accounting work for him and the Trump Organization.
And a hearing is planned in New York on Wednesday in another case, this one involving an effort by Trump, his business and his family to prevent Deutsche Bank and Capital One from complying with subpoenas from two House committees for banking and financial records.
The House Judiciary Committee had subpoenaed McGahn to appear. The White House, though, presented McGahn and the committee with a legal opinion from the Justice Department stating that "Congress may not constitutionally compel the president's senior advisers to testify about their official duties."
"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 on Tuesday," Pat Cipollone, the current White House counsel, wrote in a letter to the Judiciary Committee.
The 15-page legal opinion written by Assistant Attorney General Steven Engel argues that 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.
The immunity "extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser -- as a function of the independence and autonomy of the president himself," Engel wrote.
That immunity, the memo insists, does not evaporate once the adviser in question leaves the government, because the topics of interest to Congress are discussions that occurred when the person worked for the president.
McGahn now technically faces a choice over whether to show up to the hearing and parry questions from Democrats or skip the session altogether. But McGahn has maintained throughout that he will follow the White House's guidance, according to a person close to him.
Democrats on the Judiciary Committee were not entirely surprised by the White House's intervention. The committee's chairman, Rep. Jerrold Nadler of New York, said last week that he was prepared to have his panel vote to hold McGahn in contempt of Congress if he does not show up today.
"It is absurd for President Trump to claim privilege as to this witness's testimony when that testimony was already described publicly in the Mueller report," Nadler said in a statement. "Even more ridiculous is the extension of the privilege to cover events before and after Mr. McGahn's service in the White House.
"This move is just the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this Committee," Nadler added. "It is also the latest example of this Administration's disdain for law."
The chairman said the committee would still meet this morning, and "Mr. McGahn is expected to appear as legally required."
McGahn's lawyer, William Burck, has said previously his client would wait for the White House and the committee to reach an agreement.
"As you will appreciate, 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 in a letter to Nadler this month.
Since last month's release of the 448-page redacted report by special counsel Robert Mueller, Democrats have sought for McGahn to publicly give his account of Trump's attempts to thwart investigators, figuring that his testimony would make for a dramatic hearing that could help galvanize public support against Trump.
Mueller cited McGahn more than any other witness in his report on whether the president obstructed justice. In interviews with the special counsel's investigators, McGahn detailed several episodes -- including an effort to oust Mueller -- that showed the president intent on using his position atop the executive branch to protect himself from the Russia inquiry.
"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," Sarah Huckabee Sanders, the White House press secretary, said in a statement.
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 the president's efforts to shut it down. Democrats wanted 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.
McGahn has already defied the committee's subpoena once. In addition to his testimony, the Judiciary Committee subpoena called for McGahn to hand over a tranche of documents that he shared with Mueller and that the committee said was relevant to its own inquiry into potential obstruction of justice and abuses of power. The White House instructed McGahn not to comply, and Trump later asserted executive privilege over the material.
Democrats believe the president's privilege claim is illegitimate given the public nature of the material in question, but they have little recourse to access the material without a lengthy court battle.
As the legal memo presented Monday noted, the Justice Department's Office of Legal Counsel has long taken the position that the president's closest advisers have "absolute immunity" from congressional subpoenas, meaning they would not even have to show up to face questions about their official duties.
"This longstanding 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 wrote, referencing the Justice Department opinion.
TRUMP'S FINANCES
U.S. District Judge Amit Mehta in Washington said on Monday that the House Oversight and Reform Committee has authority to examine Trump's personal and business records going back to 2011. The judge rejected Trump's claim that Congress wasn't entitled to the documents because they weren't sought for a legitimate legislative purpose.
"President Trump cannot block the subpoena to Mazars," Mehta said in a 41-page ruling. "There are limits on Congress's investigative authority. But those limits do not substantially constrain Congress."
Shortly after the decision was made public, Trump told reporters outside the White House that it would be appealed. If upheld, the ruling would be the first to allow Congress to investigate the president's finances, including his umbrella business, The Trump Organization. The information could challenge assertions he's made about the amount and sources of his wealth.
Organization spokesman Amanda Miller didn't immediately respond to a request for comment.
House Oversight and Reform Committee Chairman Elijah Cummings, D-Md., said in a statement that the ruling was "a resounding victory for the rule of law and our Constitutional system of checks and balances." He urged Trump to "stop engaging in this unprecedented cover-up and start complying with the law."
In his ruling, Mehta, a 2014 President Barack Obama nominee, said the accounting firm has seven days to comply with the subpoena. The judge turned down a request from the president's attorneys to put his ruling on hold for their appeal.
Trump has been fighting to keep the information private since Democrats took control of the House in November. His lawyers have asked a federal judge to quash subpoenas for financial records from Deutsche Bank AG and Capital One Financial Corp., with a hearing set for Wednesday in New York. Treasury Secretary Steve Mnuchin on Friday refused demands for six years of the president's tax records from the U.S. Internal Revenue Service, which may also spur a separate lawsuit.
The Mazars case is Trump v. Committee on Oversight and Reform, 19-cv-1136, U.S. District Court, District of Columbia.
Information for this article was contributed by Michael S. Schmidt, Nicholas Fandos and Maggie Haberman of The New York Times; Rachael Bade, Josh Dawsey and Devlin Barrett of The Washington Post; Michael Balsamo, Jonathan Lemire, Eric Tucker, Mary Clare Jalonick and Mark Sherman of The Associated Press; and Andrew Harris, Billy House, Shahien Nasiripour, Steven T. Dennis and Emma Kinery of Bloomberg News.
A Section on 05/21/2019