On Monday, former White House Counsel Don McGahn informed the House Judiciary Committee that he will not be appearing for scheduled testimony on Tuesday, in defiance of a congressional subpoena. Committee chairman Jerry Nadler immediately indicated the committee will vote to hold McGahn in contempt—and more.
According to CNN, McGahn’s refusal came by way of a letter claiming that he had been ordered not to testify, just as he was earlier ordered not to comply with a congressional subpoena to hand over documents. Former White House Counsel McGahn is just that: a former member of the White House staff, also known as a private citizen. And while Donald Trump might assert executive privilege over a specific conversation he had with McGahn, the idea that any former member of his staff—or even a current member of the executive branch—can be ordered to ignore a congressional subpoena has no legal basis. Trump may not know that. But, McGahn certainly does. And so do current White House Counsel Pat Cipollone and Attorney General William Barr.
But Barr and Cipollone teamed up to block Congress’ access to McGahn on Monday, with Cipollone dispatching a letter saying, “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.” This appears to be another exertion of privilege without claiming privilege—a maneuver Trump has tried multiple times which has already been shot down in court. The kind of blanket immunity Cipollone is granting has never been granted to anyone, ever, and especially not in cases where the executive is being investigated for possible wrongdoing.
McGahn’s continued refusal appear isn’t sitting at all well with Nadler. The Democratic rep has already fired back a letter to warn McGahn that the Judiciary Committee will “use all enforcement mechanisms at its disposal” to see him obey the two subpoenas he has ignored. Nadler’s letter makes the point that, not only is there no case law in support of McGahn’s refusal to testify, the White House has no business giving such an order, the Justice Department is providing advice that violates its own policies, and Trump has not even made an actual claim of privilege.
“Finally,” writes Nadler, “the Justice Department has no place informing you about the potential remedies that Congress may pursue in the exercise of its own Article I powers. This committee has made it clear that you face serious consequences if you do not appear tomorrow.”
In a CNN interview, Nadler made it clear that the next step is to hold McGahn in contempt, an action that could happen as early as Tuesday. But there are other actions being considered.
Congress has not yet resurrected the practice of inherent contempt—the ability of Congress to hold its own trial for those in violation of congressional subpoenas and met out punishment without seeking a ruling from a court—but McGahn’s actions may tempt Representatives to dust off rules not used since 1935. It’s especially tempting because in his letter McGahn cited advice received in a memo from the Barr DOJ saying that “The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of presidential assertion of executive privilege.”
This assertion, like so many other claims that the Trump White House has made concerning privilege, seems to have been pulled directly from William Barr’s … hat. There is neither a court ruling nor constitutional text to support this claim.
Almost from the moment he sat down in the Oval Office, Trump has been moving the bar on privilege, ordering members of his team not to testify, or to refuse to answer certain questions, on the basis that he might, at some future time, assert privilege. It’s been a frustration to Congress from the beginning, but Republicans simply allowed this increasing threat to slip past. Nadler’s letter makes it clear that this kind of claim has already been shot down in court, and shouldn’t be regarded at all when making a decision.
The confrontation between McGahn and Congress is likely to be the point at which it is decided whether the Congress actually retains any oversight authority in the face of a compliant DOJ and an authoritarian executive. For this constitutional crisis, this could be the tipping point.