White House instructs former counsel Don McGahn not to comply with congressional subpoena

PHOTO: White House counsel Don Mcgahn listens to Judge Brett Kavanaugh testify before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Dirksen Senate Office Building on Capitol Hill, Sept. 27, 2018, in Washington.PlayPool/Getty Images, FILE
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The White House has instructed former White House counsel Donald McGahn not to comply with a subpoena from House Democrats for documents related to special counsel Robert Mueller's investigation, according to a letter sent Tuesday from White House counsel Pat Cipollone to McGahn's attorney William Burck.

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Earlier Tuesday, White House press secretary Sarah Sanders said on ABC News' "The Investigation" podcast “I don’t anticipate that that takes place,” when asked whether the White House would allow McGahn to comply with Democrats’ request. “We consider this to be a case closed and we're moving forward to do the work of the American people.”

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In a separate letter to House Judiciary Committee Chairman Rep. Jerry Nadler, D-N.Y., on Tuesday, Cipollone argues that “McGahn does not have the legal right to disclose these documents to third parties” and asks that instead of directing the request for documents to McGahn’s attorney the committee direct the request to the White House.

Nadler fired back in response to the White House effort to block McGahn from cooperating with the committee, calling their effort to cite executive privilege without formally invoking it "entirely insufficient" in a letter to Burck.

Nadler also says he "fully expects" the committee to hold McGahn in contempt of Congress if he doesn't appear to testify before Congress, as demanded by the subpoena, on May 21. Nadler says McGahn is required to appear to testify where he can, even if authorized by a court order to invoke executive privilege.

White House Letter to Congress by ABC News Politics on Scribd

In a third letter obtained by ABC News, Burck, McGahn’s attorney, tells Nadler that the White House has “directed McGahn not produce the documents “because they implicate significant Executive Branch confidentiality interests and executive privilege.” He adds, "Where co-equal 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 Executive Branch can reach an accommodation."

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McGahn was a central figure in the Mueller report who cooperated extensively with the special counsel’s probe, meeting with his team multiple times for more than 30 hours and questioned more extensively than any other member of the White House staff who went in for an interview.

"Mr. McGahn is a critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Mueller report,” Nadler wrote last month in a press release accompanying his subpoena request. “His testimony will help shed further light on the President's attacks on the rule of law, and his attempts to cover up those actions by lying to the American people and requesting others do the same."

The deadline for McGahn to produce documents to the committee is Tuesday.

PHOTO: White House Press Secretary Sarah Sanders talks to reporters outside the White House, April 29, 2019 in Washington. Chip Somodevilla/Getty Images, FILE
White House Press Secretary Sarah Sanders talks to reporters outside the White House, April 29, 2019 in Washington.

Mueller had requested to speak with McGahn about the circumstances surrounding former FBI Director James Comey’s firing and his reported involvement in the event surrounding Attorney General Jeff Sessions’ recusing himself from the Russia investigation, the sources said.

ABC News previously reported that McGahn was among the White House staffers who were against any notion of President Trump’s firing of special counsel Mueller last June when the president wanted to do just that, a source said.

PHOTO: President Donald Trump arrives for an event om the Rose Garden at the White House in Washington, May 6, 2019. Jonathan Ernst/Reuters, FILE
President Donald Trump arrives for an event om the Rose Garden at the White House in Washington, May 6, 2019.

After news broke that Trump ordered McGahn to fire the special counsel, Trump pressured McGahn to deny that he had been directed to do so, even suggesting to aides that he would fire him unless he complied. Mueller concludes that there is evidence to suggest Trump acted this way to impede his investigation, according to the special counsel's report.

Mueller concluded that "Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn's account in order to deflect or prevent further scrutiny of the President's conduct towards the investigation."

Democrats could move to hold McGahn in contempt of Congress in response to their subpoena for information and his testimony. They are already preparing to hold Attorney General Barr in contempt of Congress over refusing to provide lawmakers greater access to an unredacted version of the Mueller report.

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