The gloves are definitively off now that former White House counsel Donald McGahn ignored a congressional subpoena and didn’t show up to testify before the House Judiciary Committee on Tuesday morning.
McGahn was following express orders from President Donald Trump, who in turn invoked an opinion that issued Monday from the Office of Legal Counsel (OLC) concluding that McGahn was absolutely immune from having to appear before Congress.
McGahn is arguably the most important witness Congress can call in response to special counsel Robert Mueller’s probe of Russian interference in the 2016 election and Trump’s response to it. McGahn’s discussions with Mueller’s team credibly established conduct by Trump that, were he not the president, would clearly result in indictments on at least two counts of obstruction of justice.
Had McGahn repeated that testimony before the Judiciary Committee, it would have been a moment of national drama akin to the “cancer on the presidency” Watergate testimony of John Dean.
The OLC’s no-holds-barred opinion attempts to parry that possibility with an all-encompassing assertion of immunity designed to safeguard against McGahn’s even showing up in response to the subpoena.
The OLC’s argument is that certain senior presidential advisers - including the White House counsel - are so closely associated with the president that they can no more be compelled to appear before Congress than can the president himself.
The OLC’s opinion is long on argument and citations to its own previous opinions, and short on case citations.
In fact, there is no case support for its broad position, and the only issued opinion on direct point - a district court opinion in the Harriet Miers litigation over the 2006 U.S. attorneys’ firings - went the other way. (The case settled before the court of appeals took it up, so its precedential value is limited.)
But that is not to say that the opinion is beyond the pale. Previous OLC opinions from Democratic and Republican administrations have sought to zealously defend at least the legal prerogative of the president to shut down the testimony of senior advisers. Monday’s OLC opinion goes to the outer limit of those previous efforts, however, by attempting to apply absolute testimonial immunity to McGahn, who is a former senior adviser - otherwise known as a private citizen.
It’s an aggressive argument but not an outrageous one. As the opinion points out, one of the policies undergirding executive immunity in general is the need for the president to have confidential and candid advice. That concern seems pertinent to a former adviser as well as a current one.
But that policy carries the administration only so far - basically to the point of being able to assert executive immunity to attempt to shield specific testimony from disclosure.
Congress probably has the stronger argument that McGahn does not have an absolute immunity permitting him to simply ignore the subpoena.
Rather, the better result is for him to appear and for the administration then to try to protect him from answering questions about specific content.
The legal questions are nuanced, and precedent is particularly spare, because past controversies have generally worked themselves out through negotiations between Congress and the White House.
That means that if the White House sticks to its guns, the parties will be headed to court, and the issue will be settled no lower than the Court of Appeals for the District of Columbia Circuit and very possibly at the Supreme Court.
Harry Litman, a Washington Post contributing columnist, is a former U.S. attorney and deputy assistant attorney general.