After McGahn misses first subpoena deadline, Nadler warns of contempt if he misses second

Former White House counsel declines to turn over documents, but committee expects him to testify

House Judiciary Chairman Jerrold Nadler, D-N.Y., is threatening to hold former White House counsel Don McGahn in contempt of Congress if he does not comply with a subpoena to appear before his panel on May 21. (Tom Williams/CQ Roll Call)

House Judiciary Chairman Jerrold Nadler said Tuesday that his panel will hold former White House counsel Donald McGahn in contempt of Congress if he does not comply with a subpoena to appear before the committee on May 21.

The threat, which the New York Democrat issued in a letter sent to McGahn’s lawyer William A. Burck, comes as McGahn missed the first of two deadlines the committee gave him in the subpoena. McGahn had to turn over by Tuesday documents related to instances chronicled in special counsel Robert S. Mueller III’s report in which President Donald Trump may have obstructed justice. 

McGahn, who did not turn over the documents because the White House asserts it has legal custody them, faces a second deadline two weeks from now, when the Judiciary Committee has subpoenaed him to testify about the alleged obstruction of justice.

“I fully expect that the committee will hold Mr. McGahn in contempt if he fails to appear before the committee, unless the White House secures a court order directing otherwise,” Nadler wrote. “Further, even if Mr. McGahn is authorized by court order to invoke executive privilege as to certain testimony, he still is required by law to ‘appear before the committee to provide testimony, and invoke executive privilege where appropriate.’”

McGahn was a key witness for Mueller’s team, and House Judiciary Democrats want to hear from him for their investigation, as well see the documents he shared with Mueller. 

Current White House counsel Pat Cipollone wrote to Nadler earlier Tuesday saying McGahn does not have the legal right to disclose the documents since the White House provided them to him for use in his cooperation with the special counsel investigation.

“The White House records remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant executive branch confidentiality interests and executive privilege,” Cipollone wrote, asking that the committee direct any request for the documents to the White House, “the appropriate legal custodian.”

McGahn cited the White House letter in refusing to comply with the House Judiciary subpoena. That wasn’t a sufficient rationale for Nadler, who said the White House did not actually invoke executive privilege but rather just suggested it may exist.

“This blanket suggestion of potential privilege is entirely insufficient,” Nadler said in his letter to McGahn’s lawyer.  

“Even if the president were to properly invoke privilege, any claim of executive privilege has been waived as to documents that the White House voluntarily disclosed to Mr. McGahn and his counsel,” he added.

The chairman said his committee continues to insist on compliance with its subpoena for the documents, as well as McGahn’s testimony.

“If the president wishes to block Mr. McGahn’s appearance in the face of a duly issued subpoena, the burden rests with the White House to file an action in court to attempt to do so,” he said.

Cipollone’s letter made no mention of whether the White House would object to McGahn testifying.

McGahn is the second person the House Judiciary Committee has threatened to hold in contempt of Congress. The panel is expected to vote Wednesday on a contempt citation for Attorney General William Barr for failing to comply with its subpoena for the unredacted Mueller report and underlying investigatory materials.

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