The White House argues that as a former senior adviser to the President, he is exempt from having to appear before Congress. The Justice Department’s Office of Legal Counsel concluded that former McGahn was not legally required to appear before the House Judiciary Committee and testify about matters related to his official duties as counsel to the President, according to a memo issued Monday and obtained by CNN.
“The Department of Justice has advised me that Mr. McGahn is absolutely immune from compelled congressional testimony with respect to matters occurring during his service as a senior adviser to the President,” White House Counsel Pat Cipollone wrote in a letter to House Judiciary Chairman Jerry Nadler.
White House press secretary Sarah Sanders said in a statement that McGahn “cannot be forced to give such testimony, and Mr. McGahn has been directed to act accordingly.”
“This action has been taken in order to ensure that future Presidents can effectively execute the responsibilities of the Office of the Presidency,” she said.
“We’ve subpoenaed McGahn. We’re expecting him to show up on the 21st, and if he doesn’t he will be subject to contempt, unless he has a court order telling him he can’t, which I don’t think he would get,” Nadler said earlier this month.
McGahn’s testimony is of interest to Democrats in Congress because of the role that he played in special counsel Robert Mueller’s investigation into whether the President obstructed justice. One of the key episodes the special counsel cited in the investigation, which did not exonerate Trump, was when the President told McGahn to fire Mueller and McGahn would not do so.
McGahn is now one of a number of officials who could be held in contempt by Congress.
In its memo Monday, the Justice Department argued that Congress cannot use its inherent contempt powers to punish McGahn for asserting immunity, in what appears to be a preemptive challenge to House Democrats as they contemplate their next steps.
“The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of presidential assertion of executive privilege,” the memo says. “An attempt to exercise inherent contempt powers in such a circumstance would be without precedent and ‘would immensely burden the President’s ability to assert the privilege and to carry out his constitutional functions.'”
Democrats argue the situation with McGahn is different than that case because he has already testified before the special counsel, therefore waiving executive privilege.
But the White House has argued that testifying before Mueller was different because it was a criminal investigation. And on Monday, the Justice Department said that privilege is a separate question than immunity, arguing that the precedent for claiming immunity goes back decades.
“We provide the same answer that the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the President’s senior advisers to testify about their official duties,” DOJ wrote in its memo. “This testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress.”
If Nadler goes to court to try to force McGahn’s testimony, it’s likely to be one of a number of judicial battles pitting congressional Democrats against the Trump administration.
This story has been updated to include additional developments Monday.
CNN’s Kara Scannell and Jim Acosta contributed to this report.