The Justice Department is expected to deliver a legal opinion ahead of former White House Counsel Don McGahn’s planned Tuesday testimony to the House Judiciary Committee, according to a DOJ official.
A congressional aide said the opinion, drafted by DOJ’s Office of Legal Counsel, will provide a legal basis for McGahn refusing to comply with the committee’s subpoena, which sought documents and public testimony from McGahn.
Judiciary Committee Chairman Jerry Nadler (D-N.Y.) has threatened to hold McGahn in contempt of Congress if he refuses to show up.
Earlier this month, McGahn refused to turn over the requested documents after the White House instructed him not to comply with that part of the subpoena.
The committee kicked off a wide-ranging investigation in March into President Donald Trump for allegations of obstruction of justice and abuses of power. McGahn is emerging as a central witness in the committee’s probe, after special counsel Robert Mueller’s report outlined Trump’s directives to McGahn to shut down the Mueller probe.
The new opinion is expected to build upon an earlier one drafted in 2014 under the Obama administration.
“The executive branch’s longstanding position, reaffirmed by numerous administrations of both political parties, is that the president’s immediate advisers are absolutely immune from congressional testimonial process,” according to the 2014 opinion. “This immunity is rooted in the constitutional separation of powers, and in the immunity of the president himself from congressional compulsion to testify.”
That opinion noted that the federal court in Washington had previously ruled that a “former counsel to the president” was “not entitled to absolute immunity from congressional compulsion to testify.
” But the Obama Justice Department argued that this ruling was erroneous. “[W]e believe those cases do not undermine the executive branch’s longstanding position that the president’s immediate advisers are immune from congressional compulsion to testify,” according to the opinion. “We therefore respectfully disagree with the ... court’s analysis and conclusion, and adhere to the executive branch’s longstanding view that the president’s immediate advisers have absolute immunity from congressional compulsion to testify.”
Article originally published on POLITICO Magazine