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Former White House counsel Don McGahn must obey subpoena to testify before Congress, judge rules

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By Pete Williams  with NBC News Politics
Image: White House counsel Don McGahn on Capitol Hill in Washington on Aug.
Don McGahn, then White House counsel, on Capitol Hill on Aug. 21, 2018.   -   Copyright  Jose Luis Magana AP file

WASHINGTON — A federal judge ruled late Monday that former White House counsel Don McGahn must obey a subpoena for his testimony issued by the House Judiciary Committee, a decision that the Trump administration is certain to appeal.

Justice Department lawyers had argued that as a former close adviser to the president, McGahn could not be commanded to appear before Congress. The government said the long-standing view, under both Republican and Democratic administrations, is that the president and his immediate advisers are absolutely immune to such demands.

Administration lawyers cited a 1999 Justice Department legal opinion issued by Janet Reno, attorney general during the Clinton administration. "Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the president himself to appear before Congress" on matters related to his official duties, the Reno opinion said.

The current White House counsel, Pat Cipollone, notified the House that President Donald Trump directed McGahn not to testify before the House "in order to protect the prerogatives of the office of the presidency."

House Judiciary Democrats said they wanted McGahn to testify about actions by President Trump that former special counsel Robert Mueller's report said could constitute obstruction of justice. After McGahn declined to respond in March to a voluntary request for documents, the committee issued a subpoena April 22, describing him as "the most important witness, other than the President, to the key events that are the focus of the Judiciary Committee's investigation."

Last week, House lawyers urged the judge to issue a ruling quickly, explaining that the Judiciary Committee plans to hold its own impeachment hearings, separate from the recently concluded hearings held by the House Intelligence Committee.

While the Justice Department's view is that close advisers to the president cannot be forced to appear before Congress, no court has ever said so. In 2008, a federal judge in Washington rejected that view, ruling that Harriet Meiers, a White House counsel under President George W. Bush, could not refuse demands for her testimony.

The Bush administration appealed that ruling, but the case was dismissed after Meiers agreed to testify about the controversy generated by the firings of several U.S. attorneys. The 2008 ruling therefore is not binding on later cases.

The same question about White House immunity is pending before another judge in Washington in a lawsuit filed by former deputy national security adviser Charles Kupperman. The House withdrew its subpoena for his testimony, but the judge has so far declined to dismiss the case.