Trump Expected to Instruct McGahn to Defy Subpoena and Skip House Testimony

WASHINGTON — 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.

If Mr. McGahn does not appear before the committee on Tuesday, he risks a contempt of Congress citation. 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.

It was not immediately clear how the Judiciary Committee or its chairman, Representative Jerrold Nadler of New York, would respond. The White House declined to comment on Monday.

Since last month’s release of the 448-page redacted report by the special counsel, Robert S. Mueller III, Democrats have sought for Mr. McGahn to publicly give his account of Mr. Trump’s attempts to thwart investigators, figuring that his testimony would make for a dramatic hearing that could help galvanize public support against Mr. Trump.

Democrats are certain to be livid.

Mr. Mueller cited Mr. McGahn more than any other witness in his report on whether the president obstructed justice. In interviews with the special counsel’s investigators, Mr. McGahn detailed several episodes — including an effort to oust Mr. Mueller — that showed the president intent on using his position atop the executive branch to protect himself from the Russia inquiry.

Since the report’s release, Mr. Trump has put up roadblocks for House Democrats trying to investigate him further — including claiming executive privilege over the entire report and evidence underlying it — hurting the Democrats’ momentum as they seek to expand their oversight efforts. The president has falsely maintained that he fully cooperated with Mr. Mueller — he himself refused an interview — and has asserted that there has been enough investigating of his administration.

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.

Democrats believe the president’s privilege claim is illegitimate given the public nature of the material in question, but they have little recourse to access the material without a lengthy court battle.

The Justice Department’s Office of Legal Counsel has long taken the position that the president’s closest advisers have “absolute immunity” from congressional subpoenas. President Barack Obama’s administration upheld that view, as did the administration of President George W. Bush before him.

“For the president’s absolute immunity to be fully meaningful, and for these separation of powers principles to be adequately protected, the president’s immediate advisers must likewise have absolute immunity from congressional compulsion to testify about matters that occur during the course of discharging their official duties,” a 2014 opinion by the office said.

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