WASHINGTON -- The White House moved to shield former counsel Don McGahn from testifying before Congress, asserting a broad immunity to compelled testimony as Democrats investigate President Donald Trump's efforts to curb special counsel Robert Mueller's Russia probe.
"Because of this constitutional immunity, and in order to protect the prerogatives of the Office of the Presidency, the president has directed Mr. McGahn not to appear at the committee's scheduled hearing on Tuesday, May 21, 2019," White House counsel Pat Cipollone wrote Monday in a letter to House Judiciary Chairman Jerrold Nadler.
The move escalates a battle between the White House and Congress over lawmakers' authority to investigate the president following the conclusion of Mueller's probe. Earlier this month, the administration told McGahn not to turn over documents the House Judiciary Committee had subpoenaed in April, and asserted executive privilege over all of Mueller's investigative documents sought by Democratic lawmakers.
Democrats have said they need to hear from McGahn to learn more about several incidents that Mueller investigated to see whether Trump had tried to obstruct justice. The committee could decide to hold McGahn in contempt if he decides to follow the White House's instructions and decline to appear.
It wasn't immediately clear how McGahn would respond. The White House doesn't have authority to stop him from appearing if he so chooses. The House Judiciary Committee plans to meet Tuesday even if McGahn doesn't show, according to a person familiar with the panel's plans.
The Justice Department published a new legal opinion addressing immunity with respect to McGahn's testimony to Congress.
"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," the department said.
The immunity claim that the White House is invoking for McGahn's testimony was used under presidents Barack Obama and George W. Bush. In one case, Bush's Justice Department argued that former White House Counsel Harriet Miers was immune from a subpoena related to the firings of several U.S. attorneys. During the Obama administration, the department suggested White House aide David Simas shouldn't be compelled to testify about potential Hatch Act violations.
"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," Obama's Justice Department wrote in a July 2014 memo.
The Justice Department's Office of Legal Counsel said the immunity from testimony is distinct from -- and broader than -- a claim of executive privilege, saying: "the immunity extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser."