White House: Don McGahn doesn't have legal right to turn over Mueller documents
And House Judiciary Committee Chairman Jerry Nadler doesn't have the legal right to see those documents, says Hogan Gidley, White House principal deputy press secretary.
The House Judiciary Committee has scheduled a hearing for Don McGahn next week, but it is unclear if the former White House counsel will agree to appear—the latest development in the battle between congressional Democrats and the White House for testimony from current and former administration officials.
The committee, led by Chairman Jerrold Nadler, D-N.Y., posted plans on Tuesday to hold a hearing for McGahn on May 21. The committee subpoenaed McGahn last month, but the White House has blocked McGahn from producing documents responsive to that subpoena.
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The White House did not immediately respond to Fox News’ request for comment on whether McGahn would appear before the committee. Last week, though, White House Press Secretary Sarah Sanders was asked if she thought McGahn would comply with the committee’s requests.
“I don’t anticipate that takes place,” Sanders said on ABC News ‘The Investigation” podcast last week. “We consider this to be a case closed and we’re moving forward to do the work of the American people.”
Nadler’s committee subpoenaed McGahn on April 22, days after the release of Special Counsel Robert Mueller’s report, which featured McGahn prominently in its section related to the obstruction of justice inquiry. The subpoena called for him to appear before the panel to testify, and to provide documents related to the Mueller investigation.
But earlier this month, now-White House Counsel Pat Cipollone notified the committee that McGahn would not be allowed to comply with the subpoena, and said, instead, requests for documents and materials must go to the White House.
“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. “The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.”
He added: “Because Mr. McGahn does not have the legal right to disclose these documents to third parties, I would ask the Committee to direct any request for such records to the White House, the appropriate legal custodian.”
Cipollone wrote that acting chief of staff Mick Mulvaney “has directed Mr. McGahn not to produce these White House records” in response to the committee’s subpoena issued on April 22.
“The Department of Justice is aware of and concurs with this legal position,” Cipollone wrote.
But Nadler has maintained the importance of McGahn’s testimony, saying that it would “help shed further light on the president’s attacks on the rule of law, and his attempts to cover up those actions by lying to the American people and requesting others to do the same.”
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McGahn’s interview with special counsel investigators factored prominently into the section probing whether the president obstructed justice, including a claim that McGahn disobeyed Trump’s call to have him seek Mueller’s removal.
“On June 17, 2017, the president called [White House Counsel Don] McGahn at home and directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed. McGahn did not carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre,” the report stated, referencing the Watergate scandal.
The report also revealed that when the media reported on the president’s request for McGahn to have Mueller removed, the president directed White House officials “to tell McGahn to dispute the story and create a record stating he had not been ordered to have the special counsel removed.”
“McGahn refused to back away from what he remembered happening,” the report said.
The report went on to explain that two days after the initial request to McGahn, the president made another attempt to “affect the course of the Russia investigation.”
Trump, though, said he never told McGahn to fire Mueller, and tweeted last month that if he “wanted to fire Mueller, I didn’t need McGahn to do it, I could have done it myself."
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The battle for McGahn's testimony and cooperation is just one example of the growing conflict between the White House and congressional Democrats.
Last week, the committee voted to hold Attorney General Bill Barr in contempt, after defying a subpoena for Mueller's full and unredacted report, as well as underlying evidence and documents used in the investigation. Barr missed the committee's deadline to cooperate.
President Trump, prior to the vote, asserted executive privilege over the materials in a bid to protect them from being turned over to the committee. The full House will take a final vote on whether to hold Barr in contempt of Congress. It is unclear when that vote could take place.
Fox News' Mike Emanuel contributed to this report.
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