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McGahn Defies Subpoena, No-Show at House Hearing

May 21, 2019 by Dan McCue
White House counsel Don McGahn listens to Supreme Court nominee Brett Kavanaugh testify before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., on September 27, 2018. (Jim Bourg/Sipa USA/TNS)

House Judiciary Chairman Jerrold Nadler, D-N.Y., on Tuesday opened the panel’s hearing on Russia interference in the 2016 election by warning the visibly absent former White House Counsel Don McGahn that he will be held in contempt for failing to appear despite the committee’s subpoena.

“Our subpoenas are not optional,” Nadler said as he stared down the empty witness chair and the placard reading “Mr. Donald F. McGahn II.”

Nadler went on to say the House Judiciary Committee will hear from McGahn one way or another, adding “The committee will have no choice but to enforce the subpoena against him.”

“We will not allow the president to stop this investigation,” the chairman added.

Nadler later issued subpoenas to McGahn’s former chief of staff, Annie Donaldson, and former White House communications director Hope Hicks.

Spectators said they turned out for the Tuesday’s brief hearing just to take in the sight of the empty chair and the verbal fireworks they knew would follow the banging of the chairman’s gavel.

President Donald Trump ratcheted up the clash between the executive branch and Capitol Hill on Monday by instructing McGahn to ignore the committee’s subpoena.

That directive came soon after the Justice Department released a 15-page legal opinion arguing the former White House counsel had no legal obligation to comply.

“Congress may not constitutionally compel the President’s senior advisers to testify about their official duties,” the Office of Legal Counsel opinion stated.

It continued: “The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers.”

In a written statement released Monday night, White House spokeswoman Sarah Sanders said “this action has been taken … to ensure that future presidents can effectively execute the responsibilities of the Office of the Presidency.”

Democrats on the judiciary panel contend that it is important to hear from McGahn so that they can better understand the president’s handling and statements related to Special Counsel Robert Mueller’s probe of Russian election interference and possible collusion with members of the Trump campaign.

But Representative Doug Collins, R-Ga., the ranking Republican on the committee said Tuesday’s hearing was little more than a “circus”.

Democrats are “trying desperately to make something out of nothing,” he said.

The committee voted to adjourn the hearing following Collins’ remarks.

McGahn’s refusal to testify is just the latest move by the White House to block Democratic investigations into the administration, its ties to Russia, and the president’s outside business activities.

The House Judiciary Committee voted to hold Attorney General William Barr in contempt earlier this month after he declined to provide an unredacted version of special counsel Mueller’s report.

The House intelligence committee is expected to vote on a separate “enforcement action” against the Justice Department this week after Barr declined a similar request from it.

McGahn’s lawyer, William Burck, said in a letter to Nadler that McGahn is “conscious of the duties he, as an attorney, owes to his former client” and would decline to appear Tuesday.

But Burck went on to suggest that there’s room to negotiate with the White House over his client’s testimony.

He said McGahn “again finds himself facing contradictory instructions from two co-equal branches of government.”

In a Monday night letter to McGahn, Nadler promised to use “all enforcement mechanisms” available to force McGahn to testify, threatening “serious consequences” if he did not show up.

McGahn was a key figure in Mueller’s investigation and is cited 157 times in the special counsel’s report — more than any other interviewee. Democrats hope to question him as a way to focus attention on Mueller’s findings and further investigate whether Trump did obstruct justice.

Tuesday’s brief hearing took place against a backdrop of increasing calls for the judiciary committee to start a formal impeachment inquiry against the president.

During a closed door Democratic leadership meeting on Monday afternoon, at least five attendees pressed House Speaker Nancy Pelosi, D-Calif., to allow such a step, arguing, according to the Washington Post, that it “would help investigators obtain documents and testimony Trump has blocked.”

Nadler met separately with Pelosi after the session and also reportedly made the case for starting such an inquiry.

Afterwards he said, “the president’s continuing lawless conduct is making it harder and harder to rule out impeachment or any other enforcement action.”

So far, Pelosi has been content to take a methodical approach to the House’s running battles with the president, saying witnesses should be called, subpoenaed if they fail to appear, and then, if they still defy Congress, that matter should be turned over to the courts.

Democrats got an indication this strategy is working Monday night when a federal judge ruled against Trump on Monday in a financial records dispute with the House. Trump’s team filed notice Tuesday that they would appeal.

In the meantime, calls for Trump’s impeachment became bipartisan for the first time Saturday, when Representative Justin Amash, R-Mich., said it’s clear from the Mueller report the president committed obstruction of justice during the special counsel’s investigation.

On Monday, the House Freedom Caucus, a conservative Republican caucus, voted to formally condemn Amash.

On Tuesday, Amash refused to bow to such pressure, saying he hasn’t ruled out challenging Trump for the White House as a Libertarian.

As for McGahn, a contempt vote is not expected to take place until June, as Congress is about to leave town for a weeklong recess.

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