Former White House Counsel Donald McGahn defied a subpoena Tuesday from the House Judiciary Committee to testify about his conversations with President Donald Trump ordering him to oust special counsel Robert Mueller in the midst of Mueller's investigation of Russian meddling in the 2016 presidential election.
The Democratic-controlled House panel left an empty chair and a nameplate at the witness table for McGahn.
But the 50-year-old Washington attorney, now in private legal practice again, adhered to White House instructions to not testify, and a Justice Department legal opinion that Congress cannot force him to appear.
Congressman Jerrold Nadler, the committee chairman, assailed McGahn's refusal to testify, threatening to go to court in an effort to force McGahn to testify.
"Our subpoenas are not optional," Nadler said.
He said McGahn's testimony was essential after the Mueller report recounted that Trump directed McGahn to get rid of Mueller and then, when a news account appeared about his directive, asked him to publicly lie to deny the story, which McGahn refused to do. Mueller's investigators interviewed McGahn for 30 hours about his interactions with Trump.
"We will not allow the president to stop this committee's investigation," Nadler said. The committee two weeks ago overrode Republican objections as it voted to hold Attorney General William Barr in contempt of Congress after he refused to turn over an unredacted copy of Mueller's 448-page report on his 22-month investigation.
The leading Republican on the panel, Congressman Doug Collins, attacked Democrats for staging the short hearing absent McGahn, calling it "a circus."
"The Democrats," Collins said, "are trying to make something out of nothing," noting that Mueller concluded that Trump did not collude with Russia to help him win the White House.
Mueller reached no decision whether Trump obstructed justice by trying to thwart the investigation, but Barr and then Deputy Attorney General Rod Rosenstein subsequently concluded that obstruction charges against Trump were not warranted.
Nadler accused Trump of trying to "run out the clock" to prevent hearings about his alleged misconduct. Nadler said Trump's conduct in directing McGahn to get rid of Mueller and then to deny that he had done so were "not remotely acceptable."
Nadler further dismissed the opinion from the Justice Department's Office of Legal Counsel against McGahn's testimony, saying it was "entirely unsupported by the case law" related to the testimony of White House aides.
McGahn's attorney, William Burck, on Monday said his client "remains obligated to maintain the status quo and respect the president's instruction. In the event an accommodation is agreed between the committee and the White House, Mr. McGahn will of course comply with that accommodation."
White House press secretary Sarah Sanders explained in a statement that the Justice Department "has provided a legal opinion stating that, based on long-standing, 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."
The Justice Department, in its legal opinion, said, "We provide the same answer that the Department of Justice repeatedly provided for five decades: Congress may not constitutionally compel the President's senior advisers to testify about their official duties."
Trump said of the legal opinion, "They're doing that for the office of the presidency for future presidents. They're not doing that for me."
"I think we've been the most transparent administration in the history of our country," Trump replied to a reporter asking why not just let McGahn testify so the public can have full answers to executive action regarding the Russia investigation. "We want to get on with running the country."
In a letter to Nadler, the current White House counsel, Pat Cipollone, said that Trump had directed McGahn not to appear at Tuesday's hearing.
"This long-standing principle is firmly rooted in the Constitution's separation of powers and protects the core functions of the presidency, and we are adhering to this well-established precedent in order to ensure that future presidents can effectively execute the responsibilities of the Office of the Presidency," Cipollone wrote.
One Democrat on the Judiciary Committee said beforehand that if McGahn defied the panel's subpoena an impeachment inquiry against the president should be started.
"We simply cannot sit by and allow this president to destroy the rule of law, to subvert the Constitution," Congressman David Cicilline of Rhode Island said during an interview on U.S. cable news network MSNBC.
McGahn's name is mentioned on more than 65 pages of the Mueller report.
Monday's pushback by the Justice Department and the White House is the latest instance of the executive branch trying to challenge for power the legislative branch of government with Trump betting the third branch – the judiciary – will back him up with rulings by federal judges, including the Supreme Court.
On Monday, however, a federal judge in Washington rejected Trump efforts to block another House committee's subpoena for his financial records from a private accounting firm that has handled some of his business affairs. Within hours, Trump's lawyers appealed the ruling, with the president calling the decision "totally wrong."