Nadler threatens McGahn with contempt over failure to turn over documents

House Judiciary Chairman Jerrold Nadler (D-N.Y.) on Tuesday threatened to begin contempt proceedings against former White House counsel Don McGahn if he does not comply with a congressional subpoena for documents and testimony.

In a letter to McGahn’s attorney William Burck, Nadler wrote that the committee would have “no choice but to resort to contempt proceedings” if McGahn does not provide testimony before the committee or submit a privilege log laying out documents withheld from production as a result of assertions made by the White House.

“Mr. McGahn is required to appear and provide testimony before the Committee absent a court order authorizing non-compliance, as well as provide a privilege log for any documents withheld,” Nadler wrote. “Otherwise, the Committee will have no choice but to resort to contempt proceedings to ensure that it has access to the information it requires to fulfill its constitutionally mandated duties.”

Nadler’s letter was sent hours after the White House notified the committee it had instructed McGahn not to comply with a subpoena for documents and raised the possibility President Trump could assert executive privilege over them.

White House counsel Pat Cipollone asked the committee to go directly to the White House to request records related to special counsel Robert Mueller’s investigation.

“The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with the clear understanding that the records remain subject to the control of the White House for all purposes,” Cipollone wrote in a letter to Nadler Tuesday morning.

“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.

Burck wrote separately to Nadler Tuesday notifying the committee that it would defer to the White House, but did not explicitly rule out that McGahn would not provide the documents at some point in the future.

“Mr. McGahn, as a former assistant to the president and the most senior attorney for the president in his official capacity, continues to owe certain duties and obligations to the president which he is not free to disregard,” Burck wrote. “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.”

Nadler noted in the letter to Burck Tuesday evening that the White House letter did not explicitly invoke executive privilege over the documents but suggested they implicate the confidentiality interests of the executive branch, which Nadler described as “entirely insufficient.”

Nadler also argued Trump cannot validly exert executive privilege to prevent McGahn from turning over documents to the committee or delivering testimony on Mueller’s report, because the president had already allowed Mueller to interview McGahn and let the Justice Department release the report without making a privilege claim.

“In accordance with the requirements laid out in our subpoena, we expect a full privilege log specifying each document withheld, the asserted basis for so doing and the other information demanded, to be provided forthwith,” Nadler wrote.

“Turning to the other requirement of the subpoena – that Mr. McGahn appear before the Committee to provide testimony in two weeks – 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,” he wrote.

McGahn’s lawyer did not immediately return a request for comment on Nadler’s letter.

The committee had requested a swath of documents from McGahn as part of a sweeping probe into allegations of obstruction, public corruption and abuses of power by Trump and members of his inner circle. These include documents and communications related to the departure of former national security adviser Michael Flynn, the removal of James Comey as FBI director, and Mueller’s resignation or termination “whether contemplated or actual,” among numerous other subjects.

The panel has zeroed in on McGahn after his testimony was extensively featured in Mueller’s report, particularly in the discussion analyzing episodes of possible obstruction by Trump. The special counsel ultimately did not draw a conclusion on whether Trump obstructed the investigation and his report explicitly does not “exonerate” the president. Attorney General William Barr judged the evidence to be insufficient to accuse Trump of obstruction.

Nadler, who issued a subpoena for the documents and public testimony from McGahn last month, set a Tuesday deadline for him to respond to the records request.

Nadler has demanded McGahn testify publicly before the committee on May 21, however Trump has given every indication he will look to assert executive privilege in order to block his former adviser’s appearance.