,
8 tweets,
3 min read
Read on Twitter
NEW: DOJ has released a new opinion from the Office of Legal Counsel saying former White House counsel Don McGahn is not legally required to testify before Congress (deleted prev. tweet that didn't specify he's a *former* WH counsel) assets.documentcloud.org/documents/6018… 
McGahn, who featured prominently in the obstruction section of Mueller's report, was subpoenaed to testify before House Judiciary. Steven Engel, head of OLC, wrote that Congress cannot "constitutionally compel" top White House advisers to testify about official duties
Engel writes that because McGahn is shielded by immunity and the president can order him not to testify, McGahn can't be held civilly or criminally liable for following that directive (aka he can't be held in contempt)
Today's OLC opinion says McGahn isn't legally required to appear before Congress. It does *not* say that he *can't* testify, though. Engel writes that presidents "occasionally" have made senior advisers available to Congress, but that isn't a waiver of immunity
Constitutional law expert @steve_vladeck says there's no legal mechanism for Trump to enforce his directive that Don McGahn not testify — that is, the White House couldn't do anything to stop McGahn from going. Vladeck: "If there were, the OLC opinion would surely have cited it."
Shifting gears for a moment back to the subpoena to former White House counsel Don McGahn, which Trump has directed McGahn to rebuff — House Judiciary Chair Nadler released a statement saying they're going to convene the hearing tomorrow, and they expect McGahn to show up
What Nadler's statement does not say is what they'll do if and when McGahn doesn't show up. The OLC opinion issued by DOJ earlier today argues that Congress can't hold someone in contempt for invoking immunity under these circumstances
As expected, former White House counsel Don McGahn did not show up to the House Judiciary Committee today per a subpoena (see thread for background). Nadler didn't reference pursuing contempt in his opening remarks, but said they're prepared to go to court to enforce the subpoena
