Congress can't compel Don McGahn to testify on Mueller report, Justice Department says

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By Dartunorro Clark  with NBC News Politics
File: In Review, Trump's White House Departures
Don McGahn, White House counsel, speaks during a discussion at the Conservative Political Action Conference (CPAC) in National Harbor, Maryland, on Feb. 22, 2018.   -   Copyright  Andrew Harrer Bloomberg via Getty Images file

The Department of Justice on Monday moved to block former White House counsel Don McGahn from testifying to Congress, citing the principle of the separation of powers in a legal opinion.

McGahn had been subpoenaed by the House Judiciary Committee to answer questions on Tuesday about Mueller's investigation of President Donald Trump and Russian interference in the 2016 election, but it is unclear whether he will appear. The Justice Department opinion backs the White House, which has refused to cooperate with Congress as House Democrats ramp up their oversight investigations into the administration.

Last month, Trump said that his administration is "fighting all the subpoenas" and that he has been the "most transparent president and administration in the history of our country by far."

McGahn was a key witness in Mueller's probe into whether the president attempted toderail the investigation. Mueller's 448-page report said, for example, that Trump ordered McGahn to tell Deputy Attorney General Rod Rosenstein that "Mueller has to go." McGahn resisted those efforts despite Trump's insistence, the report said. But, when news of those events were first reported in The New York Times months later, Trump sought to have McGahn deny it and write a letter "for our records" changing his story.

After the report's release, Trump asserted executive privilege over the unredacted report and its underlying evidence.

McGahn, who left the administration last year, was subpoenaed in April by House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., for testimony and documents as part of the panel's investigation into possible obstruction of justice by the president and others.

However, White House counsel Pat Cipollone sent a letter to Nadler in early May objecting to the request. Cipollone did not assert executive privilege in the letter but suggested that the White House considers the documents privileged.

Cipollone argued that the documents "remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege," adding that McGahn "does not have the legal right to disclose these documents.

Acting White House chief of staff Mick Mulvaney also directed McGahn not to produce the subpoenaed White House records because the White House is the "appropriate legal custodian." Cipollone added that the Department of Justice "is aware of and concurs with this legal position."