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White House Directs Former Counsel Don McGahn Not To Testify Before Congress

MARY LOUISE KELLY, HOST:

President Trump's former White House counsel was supposed to testify before Congress tomorrow. A House panel had asked him to address the president's efforts to shut down special counsel Robert Mueller's investigation.

AUDIE CORNISH, HOST:

It's now official. Don McGahn will not be there. The White House has directed him not to testify. We're joined now by NPR White House correspondent Tamara Keith. Welcome to the studio.

TAMARA KEITH, BYLINE: Good to be here, Audie.

CORNISH: So the White House is citing a legal opinion from the Justice Department. What's that opinion?

KEITH: So McGahn was subpoenaed by the House Judiciary Committee. It never seemed likely that he would testify. The White House had already objected to turning over documents. Now in this case, they say that McGahn is absolutely immune from compelled testimony because he was a close adviser to the president. The president's immediate advisers are considered an extension of the president, they argue. And they say that it would violate the separation of powers for McGahn to have to testify.

One thing to note here is that the White House is not currently claiming executive privilege or attorney-client privilege. They're making a different legal argument about this immunity for advisers.

CORNISH: Why is the White House so eager to keep McGahn from testifying?

KEITH: The White House officially says that this is about protecting the institution of the presidency and that this is based on long-standing principles and precedent. They say that if internal deliberations show up in congressional testimony, it would have a chilling effect on the president's ability to get good advice.

But here's the other thing that's going on. McGahn - Don McGahn, the former White House counsel, was the star of Robert Mueller's report in the section about obstruction of justice. In that report, McGahn, who was interviewed for more than 30 hours by Mueller's team, recounted almost quitting after being asked by President Trump to get rid of the special counsel investigating him.

Most Americans haven't read the Mueller report. So to have this key witness potentially testifying - it would be carried live, no doubt - that could be a bad thing for Trump. McGahn is a Republican, long-standing establishment kind of guy. And he was not eager to get out and testify.

CORNISH: The House Judiciary Committee, as you said - they had scheduled this hearing for him tomorrow. What do Democrats do about this now?

KEITH: Well, the Trump White House has made this argument before. And congressional Democrats have responded by saying that there is longstanding precedent but that it isn't as clean or as clear as the White House and Department of Justice would have it seem. They cite a bunch of different cases of White House counsels and chiefs of staff who testified before Congress, interestingly all from the Clinton administration.

What I can say with certainty is that this joins what is a growing fight between the White House and congressional Democrats about the very nature of congressional oversight with the Trump White House arguing that Congress doesn't have much of a role for oversight of the president. In fact, there was just a ruling today. A federal judge in Washington, D.C., found in favor of Congress and against the president and his lawyers who were arguing that there was no legitimate legislative purpose in seeking financial records from the president.

CORNISH: That's NPR's Tamara Keith. Thank you.

KEITH: You're welcome. Transcript provided by NPR, Copyright NPR.