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WH counsel: McGahn can't be forced to testify about Mueller probe

Pat Cipollone argues that that Don McGahn's dealings with Trump are protected by "constitutional immunity," but House Democrats say they are public record.

Then-White House Counsel Don McGahn talks with others

Then-White House Counsel Don McGahn talks with others on May 24, 2018, before President Trump arrives to speak during a signing ceremony in the Roosevelt Room of the White House. Photo Credit: The Washington Post / Jabin Botsford

WASHINGTON — The White House’s top attorney has directed former White House Counsel Don McGahn to defy a congressional subpoena to testify before lawmakers on Tuesday, marking the latest effort by President Donald Trump to block a series of probes led by House Democrats.

Pat Cipollone, the current White House counsel, in a letter to House Judiciary Chairman Jerry Nadler (D-N.Y.) sent Monday, argued McGahn could not be compelled to testify because all of his previous dealings with Trump are protected by “constitutional immunity.” House Democrats have argued that McGahn’s dealings with Trump are no longer shielded, arguing that they are a matter of public record because of his lengthy interviews with special counsel Robert Mueller that were cited at length in Mueller’s final report.

“The Department has long taken the position-across administrations of both political parties -- that ‘the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee,’” Cipollone wrote to Nadler, citing from a legal opinion issued by the Justice Department on Monday.

White House Press Secretary Sarah Huckabee Sanders said in a statement the move to block McGahn from testifying “has been taken in order to ensure that future presidents can effectively execute the responsibilities of the office of the presidency.”

Trump speaking to reporters at the White House cast the effort as a move to protect “the office of the presidency.”

The White House has moved aggressively to contest more than a dozen congressional subpoenas setting up a series of protracted legal battles between Trump and House Democrats.

Earlier this month, Cipollone issued a letter to Nadler stating that White House Chief of Staff Mick Mulvaney had directed McGahn not to turn over documents the committee requested via a subpoena. House Democrats have been eager to interview McGahn, who was cited more than any other witness in the Mueller report.

Cipollone also issued a 15-page letter to Nadler last week calling on the House Judiciary Committee to “discontinue” its investigation, casting the committee’s expansive records request as an “unauthorized ‘do-over’” of Mueller’s 22-month long investigation.

Nadler on Monday said, “It is absurd for President Trump to claim privilege as to this witness’ testimony when that testimony was already described publicly in the Mueller report." He added that the committee “will convene as planned tomorrow morning, and Mr. McGahn is expected to appear.”

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