DOJ Smacks Down Nadler on McGahn Subpoena: ‘Congress May Not Constitutionally Compel the President’s Senior Advisors to Testify’

Jerry Nadler

The Justice Department on Monday smacked down House Judiciary Chairman Jerry Nadler in an 8-page memorandum explaining why Don McGahn has immunity from testifying to Congress.

“Congress may not constitutionally compel the President’s senior advisors to testify about their official duties,” the DOJ said in its 8-page memorandum to Nadler.


The White House on Monday blocked former White House counsel Don McGahn from testifying about obstruction of justice events related to the Mueller investigation.

Mr. McGahn was requested to appear before the House Judiciary Committee on May 21st and previously defied a House Judiciary subpoena that requested a trove of documents.

Last month House Judiciary Chairman Jerry Nadler (D-NY) subpoenaed former White House counsel Don McGahn to publicly testify May 21.

Nadler said that Don McGahn is a “critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Special Counsel’s report.”

The Justice Department in a legal opinion argued the separation of powers and said McGahn has “immunity” from being compelled to testify about his official duties.

“This immunity applies to the former White House Counsel. Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as Counsel to the President,” the memo, which was written by Assistant Attorney General Steve Engel stated. “Congress could not lawfully exercise any inherent contempt authority against Mr. McGahn for asserting immunity. The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of a presidential assertion of executive privilege.”

White House Press Secretary Sarah Sanders also blasted House Democrats in a statement Monday.

“[B]ased on longstanding, bipartisan, and Constitutional precedent, the former Counsel to the President cannot be forced to give such testimony, and Mr. McGahn has been directed to act accordingly,” Sanders said in a statement on Monday.

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