The White House said on Monday that US President Donald Trump is directing former White House counsel Don McGahn to defy a congressional subpoena and not appear before the House Judiciary Committee.
The announcement came a day before McGahn was due to appear before the House panel, which is investigating whether Trump illegally obstructed the Russia probe.
The White House cited a legal opinion from the Justice Department, which argued that McGahn would have immunity from testifying before Congress about his work as a close Trump adviser.
“Congress may not constitutionally compel the president’s senior advisers to testify about their official duties,” the opinion said, citing the Constitution’s separation of powers provisions.
The decision is certain to deepen tensions between congressional Democrats and the Trump administration. They’ve accused Trump and Attorney General William Barr of trying to stonewall and block Congress from carrying out its oversight duties.
Democrats have been eager to hear from McGahn – a key figure in Special Counsel Robert Mueller‘s investigation who described ways in which the president sought to curtail the probe.
Democrat Jerrold Nadler, chairman of the House Judiciary Committee, last month subpoenaed McGahn to testify before the panel on Tuesday, and has said he would hold the lawyer in contempt if he did not show up.
The Judiciary committee still plans on meeting even if McGahn defies the subpoena.
If McGahn were to defy the White House, it could endanger his own career in Republican politics but also puts his law firm, Jones Day, in the president’s crosshairs. Trump has mused about instructing Republicans to cease dealing with the firm, which is deeply intertwined in Washington, DC, with Republicans, according to one White House official and a Republican close to the White House not authorised to speak publicly about private conversations, the Associated Press reported.
Trump has fumed about McGahn for months, after it became clear that much of Mueller’s report was based on his testimony. He has bashed the former White House counsel on Twitter and has insisted to advisers that the lawyer not be allowed to humiliate him in front of Congress, much like his former fixer Michael Cohen did, according to Associated Press, citing an official and Republican.
The Justice Department has long held the opinion that close presidential advisers have “absolute immunity” from being compelled to testify before Congress about their work for the president.
A similar legal opinion issued in 2014, under the Obama administration, argued that if Congress could force the president’s closest advisers to testify about matters that happened during their tenure, it would “threaten executive branch confidentiality, which is necessary (among other things) to ensure that the president can obtain the type of sound and candid advice that is essential to the effective discharge of his constitutional duties”.
The House Judiciary Committee voted earlier this month to hold Barr in contempt after he defied a subpoena for an unredacted version of Mueller’s report. That vote must still go to the full House of Representatives.
“Mr McGahn is a critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Mueller report,” Nadler said last month.
Barr released a redacted version of Mueller’s 448-page report last month. It did not establish that the Trump campaign conspired with Russian operatives. The investigation did, however, examine “multiple acts by the president that were capable of exerting undue influence over law enforcement investigations”.
Mueller did not conclude that Trump committed obstruction of justice, but did not exonerate him either. Barr and Deputy Attorney General Rod Rosenstein subsequently concluded that Trump did not break the law.
Earlier this month, Trump invoked “executive privilege” to block the release of the full, unredacted Mueller report. Democrats said the move represented a “clear escalation in the Trump administration’s blanket defiance of Congress’s constitutionally mandated duties”.