Democrats Warn Don McGahn for the Last Time: Show Up or Be Held in Contempt

The House Judiciary Committee announced Tuesday that former White House counsel Don McGahn officially has one week to make up his mind. House Democrats have scheduled a hearing for 10 a.m. next Tuesday, May 21, and they expect McGahn to show up and testify or else he will be held in contempt.

The last few weeks have been subpoenapalooza down in D.C.. Back in April, House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.) subpoenaed McGahn in connection with the Mueller investigation. Through counsel, McGahn informed the committee on May 7 that he would not comply with the subpoena on the basis that he “continues to owe certain duties and obligations to the president which he is not free to disregard.” Nadler has responded by warning McGahn that he better rethink that plan or risk being held in contempt of Congress.

White House counsel Pat Cipollone previously involved in the fray, sending letters to both McGahn’s attorney William Burck, and Chairman Nadler, directing McGahn not to comply with the subpoena. According to Cipollone, the documents requested by the committee remained “subject to the control of the White House for all purposes,” and are privileged, confidential, and other wise not subject to committee review.

Cipollone’s position was that the choice to comply with the subpoena isn’t McGahn’s to make. Rather, all requests should be directed to 1600 Pennsylvania Ave.

Speaking of the White House and its inhabitants, shortly after this dispute about congressional subpoenas erupted, news broke that President Donald Trump had reached out to McGahn directly. According to those reports, Trump asked McGahn to say that he didn’t believe the president had obstructed justice. On McGahn’s behalf, Burck confirmed that the ask had been made and declined, and characterized the request as “professional and cordial,” as opposed to a “threat or something sinister.”

Next week’s hearing date looms large, as does Chairman Nadler’s warning that McGahn must “respect the rule of law like anybody else,” or risk being held in contempt of Congress. As Law&Crime reported a few days ago when Attorney General William Barr was the subject of contempt discussions (also for ignoring a Congressional subpoena), the relevant statute is 2 U.S.C.A. § 192. Under it, Congress can hold a person in contempt if that person, “willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry.”

McGahn’s decision about cooperating with the congressional subpoena is more complex than Barr’s or even Donald Trump Jr.’s. As former White House counsel, McGahn does owe a duty even to former clients, which has the potential to outweigh an obligation to comply with a subpoena. Furthermore, in McGahn’s case, the subpoena was issued by a committee with potentially adverse interests in an effort to conduct a damaging investigation. Therefore, the solution that might have benefitted Trump Jr. (show up, expect softball questions, and plead the Fifth if anything dicey comes up) likely won’t work for McGahn.

As for the president’s take on the decision facing McGahn, Trump “doesn’t know anything about what’s going on.”

[image via Saul Loeb-Pool/Getty Images]

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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