Don McGahn’s Immunity Why Congress can’t force the former White House counsel to testify.
https://www.wsj.com/articles/don-mcgahns-immunity-11558479763
Democrats are fuming that Don McGahn skipped a Congressional hearing on Tuesday, and they plan to hold the former White House counsel in contempt. But Mr. McGahn has every constitutional right not to appear, and this isn’t a close legal call.
“Our subpoenas are not optional,” declared House Judiciary Chairman Jerrold Nadler, speaking to the TV cameras in front of an empty witness table with Mr. McGahn’s name card. The symbolism is more apt than Mr. Nadler recognizes. Congress’s authority to force one of President Trump’s intimate advisers to appear before Congress is also empty.
This isn’t a novel legal doctrine. For nearly 50 years, multiple administrations have held that Congress cannot compel the appearance of a close adviser to the President. That judgment has been backed by numerous legal memos from the Justice Department’s Office of Legal Counsel, starting in 1971 when future Supreme Court Chief Justice William Rehnquist ran the shop. The view was reinforced and invoked by Presidents Carter, Reagan, Bush, Clinton, Bush and Obama.
The reason is rooted in the Constitution’s separation of powers and co-equal branches of government. The White House can’t compel a Member of Congress to visit the Oval Office, and likewise Congress can’t compel a President to appear on Capitol Hill.
The same goes for senior White House advisers who are agents of the President and whose candid counsel he needs to fulfill his duties. Unlike cabinet officers who run departments, the only job of these advisers is to counsel the President. To allow Congress to haul presidential advisers to Capitol Hill would make the President subordinate to Congress and chill communications inside the White House.
Mr. Nadler claims that the White House forfeited executive privilege when it let Mr. McGahn testify for 30 hours to special counsel Robert Mueller. But the White House is invoking testimonial immunity that is separate from executive privilege that relates to answering specific questions. Mr. McGahn doesn’t even have to show up.
As for executive privilege, Mr. McGahn spoke to Mr. Mueller, who as special counsel was a fellow member of the executive branch. That does not mean Mr. Trump must also hand the same information over to Congress.
As a May 20 Office of Legal Counsel memo puts it, “The sharing of information between one arm of the Executive Branch and another does not compromise the President’s interest in confidentiality.” Mr. Trump retains the privilege and can ask Mr. McGahn not to tell Congress about their private conversations.
All of this legal analysis is important but it also gives Mr. Nadler too much credit for sincerity. The Democrat knows that even if Mr. McGahn appears before Congress, Mr. Trump’s invocation of executive privilege means that Mr. McGahn couldn’t answer questions beyond the scope of the report that Mr. Mueller has already released. Mr. Nadler doesn’t expect to learn anything new.
He wants a show. He wants to use Mr. McGahn as a prop to spend three hours claiming that Mr. Trump tried to obstruct the Mueller investigation. Yet Mr. Mueller wasn’t obstructed in any way, his copious report was released for all to see, and there was no collusion between Russia and the Trump campaign. Mr. McGahn can be forgiven for declining the honor of appearing in Mr. Nadler’s pseudo-impeachment drama.
Mr. Nadler’s “contempt” ruling, if he follows through, also carries no legal authority under the Constitution. If Congress can’t compel the testimony of a close presidential adviser, it can’t hold him in contempt for protecting the President’s proper powers by refusing to testify. Mr. Nadler is showing his contempt—for the separation of powers.
Democrats may ask a court to enforce its McGahn subpoena, but they will lose at the Supreme Court even if some anti-Trump lower-court judge rules their way. Congress will have a stronger case on some of its other requests for information—such as Mr. Trump’s tax returns. But Congress has a losing case on Don McGahn’s constitutional immunity from playing the dancing bear at a political circus.
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