Trump Expected To Order McGahn To Ignore Subpoena

Ken AshfordCongress, L'Affaire Russe, Trump & AdministrationLeave a Comment

NY Times:

President Trump is preparing to instruct his former White House counsel, Donald F. McGahn II, to defy a congressional subpoena and skip a hearing scheduled for Tuesday, denying Democrats testimony from one of the most important eyewitnesses to Mr. Trump’s attempts to obstruct the Russia investigation, a person briefed on the matter said on Monday.

The House Judiciary Committee has subpoenaed Mr. McGahn to appear. The White House plans to provide Mr. McGahn, who left the post last year, with a legal opinion from the Justice Department to justify his defying the subpoena, the person said.

The Judiciary Committee chairman, Representative Jerrold Nadler of New York, said last week that he was prepared to have his panel vote to hold Mr. McGahn in contempt of Congress if he does not show up on Tuesday. Though a black mark on a witness’s record, a contempt citation would most likely result in the House turning to a federal court to try to enforce its subpoena.

At the same time, if he defies the White House, Mr. McGahn could not only damage his own career in Republican politics but also put his law firm, Jones Day, at risk of having the president urge his allies to withhold their business. The firm’s Washington practice is closely affiliated with the party.

One would hope that McGahn would put his legal career over politics, but it looks unlikely:

Mr. McGahn has already defied the committee’s subpoena once. In addition to his testimony, the Judiciary Committee subpoena called for Mr. McGahn to hand over a tranche of documents that he shared with Mr. Mueller and that the committee said was relevant to its own inquiry into potential obstruction of justice and abuses of power. The White House instructed Mr. McGahn not to comply, and Mr. Trump later asserted executive privilege over the material.

McGahn does NOT have to comply with Trump’s instruction. Executive privilege has no force against a former employee who wants to testify.

Would McGahn get in trouble with the D.C. Bar? Turns out there’s an D.C. Bar ethics opinion that says if Congress subpoenas a lawyer’s documents and threatens contempt, the lawyer may (but not must) comply.