WASHINGTON — 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 Mueller’s investigation.
White House counsel Pat Cipollone wrote in a letter to the House Judiciary Committee that McGahn does not have the legal right to comply with its subpoena for 36 types of documents — most relating 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 that they could assert privilege to block the information.
“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.”
The battle over McGahn’s documents and testimony is expected to be the next front in the ongoing war between the White House and House Democrats. House Democrats were hoping to make McGahn their star witness as they seek to unpack major findings of the Mueller report.
McGahn emerged as a star witness in the Mueller report, a senior confidante who documented in real-time Trump’s rage against the Russia investigation and efforts to shut it down. Democrats were hoping to sit him in the witness chair to tell his story on national television.
But Trump has said he would block McGahn’s testimony. 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.
Many lawyers seeped in House procedures and rules, however, do not believe such a claim would hold up in court. They argued the White House cannot waive privilege for some circumstances but not in others.
The matter, should McGahn go along with the White House move, will ultimately wind up in court. House Democrats who’ve been negotiating with McGahn for his testimony have already considered an option should he refuse to turn over documents and sit in the witness chair.
One option is holding McGahn in contempt of Congress — then taking him to civil court to try to convince a judge to order him to comply with their investigations.
The committee did not reply to request for comment.
William Burck, McGahn’s attorney, wrote the committee 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.”