White House Signals Fight Over McGahn’s Records With Congress

Politics

WASHINGTON — The White House stepped in on Tuesday to stop Donald F. McGahn II, the former White House counsel, from handing over documents subpoenaed by House investigators because President Trump may want to assert executive privilege over them.

The current White House counsel, Pat Cipollone, instructed the House Judiciary Committee to redirect to the White House its requests for the records, which relate to key episodes of possible obstruction of justice identified by Robert S. Mueller III, the special counsel. His move was certain to enrage Democrats who are increasingly at odds with the Trump administration over access to witness and records that they say they need to conduct legitimate investigations.

“The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with clear understanding that the records remain subject to the control of the White House for all purposes,” Mr. Cipollone wrote in a letter to the committee’s chairman, Representative Jerrold Nadler, Democrat of New York. “The White House records remain legally protected from disclosure under longstanding constitutional principle, because they implicate significant executive branch confidentiality interests and executive privilege.”

Though it raises the specter of executive privilege, a power meant to shield conversations between the president and his closest advisers, the president has not actually invoked that shield. Democrats are likely to seize on the point. They argue that Mr. Trump long ago lost the authority to withhold the material in question since he allowed Mr. McGahn to share it with his own private lawyer and discuss it at length with the Mr. Mueller. Much of it is also referenced publicly in the special counsel’s 448-page report.

Mr. McGahn, who is cited more than any other witness in the Mueller report, was obligated to turn the documents over to investigators on Tuesday, the deadline for a House Judiciary Committee subpoena.

The White House’s stance increases pressure on Mr. McGahn, a crucial witness both to Mr. Mueller and to House Democrats investigating abuse of power and obstruction of justice, to ultimately decide whether to defy Mr. Trump and cooperate with the committee or hold the administration’s line. His lawyer, William A. Burck, told the committee in a letter on Tuesday that in light of the White House position and Mr. McGahn’s continuing “duties and obligations” to Mr. Trump, he would wait out potential discussions between the House and the White House.

“Where coequal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the committee and the executive branch can reach an accommodation,” Mr. Burck wrote.

Mr. McGahn believes that there is little he can do without either the permission of the president, whom he views as akin to a client he was working for, or a court order to cooperate, a person close to Mr. McGahn said.

Democrats are likely to object to the White House’s intervention in light of its other ongoing efforts to thwart their abilities to investigate the president and his administration. They could still choose to initiate contempt of Congress proceedings against Mr. McGahn, a stinging punishment for a lawyer working in private practice that could shape how he proceeds in the fight over documents.

Mr. Nadler did not immediately comment on the letters. His Republican counterpart, Representative Doug Collins of Georgia, said he was pleased with the arrangement.

Democrats on the Judiciary Committee were separately meeting with Justice Department officials on Tuesday in a last-ditch effort to stave off another contempt proceeding, against Attorney General William P. Barr. Last week, Mr. Barr failed to comply with a subpoena to hand over a full version of Mr. Mueller’s report and underlying evidence. The committee has scheduled a Wednesday vote to recommend a contempt citation to the full House.

Speaker Nancy Pelosi of California said on Tuesday that those and other steps to block access to information requested by Congress amounted to obstruction of justice by the president. She compared his actions to those of President Richard Nixon, whose refusal to satisfy House subpoenas ultimately became fodder for their own impeachment article in the House Judiciary Committee before he resigned.

“Trump is goading us to impeach him,” Ms. Pelosi said at a Cornell University event in Manhattan. “That’s what he is doing, every single day he is just, like, taunting, taunting, taunting. Because he knows that it would be very divisive in the country. But he doesn’t really care; he just wants to solidify his base.”

Ms. Pelosi said she is pushing her caucus not to take up the debate, but to continue to try to line up the facts and build support among American voters.

The subpoena requested from Mr. McGahn all documents and communications on more than 30 subjects, including all the major episodes that Mr. Mueller examined to determine whether the president obstructed justice. Among them were: the firing of James B. Comey as F.B.I. director; attempts to fire Mr. Mueller; and the president’s effort to have Mr. McGahn write a false document recanting what he told investigators.

In the days after the report was released, Mr. Trump’s defense lawyer Rudolph W. Giuliani sought to discredit Mr. McGahn and questioned his credibility as a witness. The attacks irritated Mr. McGahn, and Mr. Burck privately warned the White House that Mr. Giuliani’s gambit would likely boomerang on the president and only enhance the House’s argument that Mr. McGahn needed to testify, according to two people familiar with the discussions. Since then, the attacks have been curtailed.

Mr. Mueller relied most heavily on Mr. McGahn in the part of his report examining whether the president obstructed justice, using him as an unofficial narrator to recount how Mr. Trump sought to control the investigations into his campaign and administration.

The subpoena for Mr. McGahn also instructed him to appear on May 21 to testify publicly before the Judiciary Committee. Regardless of the White House’s stance, Democrats are unlikely to let him off the hook. They could force Mr. McGahn to take the witness stand anyway and publicly field questions that Mr. Trump has indicated he does not want answered.

Mr. Burck did not comment on the hearing in his letter on Tuesday.

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