House Judiciary to file complaint to force McGahn to testify

Speaker Nancy Pelosi (D-Calif.) says the head of the House Judiciary Committee will move forward Wednesday with plans to enforce a subpoena against Don McGahn, escalating Democrats’ efforts to obtain testimony from the former White House counsel.

Pelosi revealed the move in a “Dear Colleague” letter Wednesday afternoon that said Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) will file a complaint in court to enforce the congressional order.

“On the litigation front, Chairman Nadler will file a complaint in court today to enforce a subpoena to compel former White House Counsel Don McGahn to testify before the Committee as part of its investigation into obstruction, corruption and abuse of power by President Trump and his associates,” Pelosi wrote.{mosads}

Such a move has been expected for several weeks.

Nadler indicated plans to go to court to enforce the McGahn subpoena shortly after former special counsel Robert Mueller’s testimony before the committee late last month.

Nadler subpoenaed McGahn on April 22 — days after the release of Mueller’s redacted 448-page report on his investigation into the Trump campaign and Russia during the 2016 election — as part of the Judiciary panel’s sprawling investigation into possible obstruction and other abuses of power by President Trump.

The White House has fought back against Democrats’ investigative efforts, blocking McGahn and other potential witnesses from testifying about their time in the administration, while accusing Nadler of attempting a “re-do” of Mueller’s probe.

However, Democrats plan to fight for testimony from McGahn, whom they view as a key witness in shedding light on 10 “episodes” of potential obstruction by Trump that Mueller examined during his 22-month probe.

In particular, Democrats want to press McGahn about the president’s orders for McGahn to remove the special counsel amid his ongoing probe. McGahn did not follow the orders, and instead prepared to resign at the time of the requests, though he ultimately did not follow through with submitting his resignation letter.

Democrats, who have also accused the White House of obstructing their probes into Trump and his administration, hope the court will remedy their failed attempts to bring the former White House counsel in to testify about such instances.

McGahn has declined to comply with the committee’s document request and instead has followed the White House instructions that argue the records the being sought by the panel “implicate significant Executive Branch confidentiality interests and executive privilege,” and therefore requests to access to them must instead be directed to the West Wing. 

McGahn also did not appear for May 21 public testimony on instructions from Trump, who cited a new Justice Department Office of Legal Counsel opinion that argued McGahn is immune from compelled congressional testimony about his tenure in the White House. 

The White House argues that, under the current standard of immunity, there are confidential protections offered to the executive branch that apply to current and former aides, effectively preventing them from disclosing what took place during their time in the administration.

The immunity concept has been invoked by Republican and Democratic administrations, but there is virtually no case law on the subject, and some legal experts say the White House is likely to lose in court. 

Still, the proceedings could significantly delay the panel’s efforts to receive material and testimony from McGahn. 

And such a delay comes as Democrats are seeking to harness any blowing winds of support following Mueller’s testimony before the committee, in which he did not go outside the four corners of his report.