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Here is the OLC opinion on McGahn's testimony, dated today: documentcloud.org/documents/6018…
DOJ also passed along a summary which concluded as follows:
DOJ also passed along a summary which concluded as follows:
OLC's view is that the executive branch can't prosecute McGahn for refusing to comply with a subpoena against which the president has asserted executive privilege AND Congress cannot lawfully use its inherent contempt power.
This opinion that White House aides are immune from compulsion to appear before Congress, in order to safeguard the President's independent powers, isn't unexpected and it's more or less in line, as I understand, with opinions that OLC has been issuing since the 1970s.
What the analysis lacks is any consideration for Congress's powers, which undoubtedly include investigation and consideration of whether impeachment is warranted. That's awfully difficult to do if you can't elicit evidence about the president's official conduct in the WH.
It's not surprising, of course, that a DOJ office wouldn't spend much time trying to protect Congress's powers. A view more in line with US v Nixon, imo, would be that WH aides' appearance immunity doesn't extend to impeachment hearings authorized by a House majority.
