Don McGahn skips House hearing on the Mueller report

10:16 a.m. ET, May 21, 2019

Nadler says Trump would have been charged with obstruction had he not been President

In his opening statement, Nadler says he believes the episodes in the Mueller report would have led to Trump being charged with obstruction had he not been president, and that his obstruction has continued since the end of the Mueller probe.

"I believe that each of these incidents, documented in detail in the Mueller report, constitutes a crime. But for the Department of Justice’s policy of refusing to indict a sitting President, I believe he would have been charged with these crimes,” Nadler said.

"And I believe that the President’s conduct since the report was released, with respect to Mr. McGahn’s testimony and other information we have sought, has carried this pattern of obstruction well beyond the four corners of the Mueller report,” he added.

10:11 a.m. ET, May 21, 2019

Top Democrat: Our "subpoenas are not optional"

House Judiciary Chairman Jerry Nadler just gaveled in for today's session. Former White House counsel Don McGahn was supposed to testify, but he announced he'd skip it after the White House argued that, as a former senior adviser to the President, he is exempt from having to appear before Congress.

In his opening remarks, Nadler argued that the committee's "subpoenas are not optional."

"When this committee issues a subpoena, even to a senior presidential adviser, the witness must show up," he said. "Mr. McGahn has a legal obligation to be here for this scheduled appearance. If he does not immediately correct his mistake, this committee will have no choice but to enforce the subpoena against him."

Nadler added: "Mr. McGahn did not appear today because the President prevented it."

9:56 a.m. ET, May 21, 2019

The House Judiciary committee is still meeting without McGahn

The House Judiciary Committee plans to hold its scheduled oversight hearing on the Robert Mueller report at 10 a.m. Former White House counsel Don McGahn was supposed to be at the hearing — but he decided to skip.

Earlier Monday afternoon, the White House argued that, as a former senior adviser to the President, he is exempt from having to appear before Congress.

This is the second time this month the committee has carried on with a no show witness. Earlier this month, Attorney General William Barr did not testify following a dispute about the hearing format.

9:43 a.m. ET, May 21, 2019

McGahn's possible testimony has been contentious. These are the arguments for and against it.

Former White House counsel Don McGahn's scheduled testimony today was the subject of much debate. It was always unclear if he would even testify.

Here's what both sides argued:

  • Democratic leadership: House Democrats have argued that McGahn and other former White House officials have waived executive privilege by speaking to special counsel Robert Mueller's team. House Judiciary Chairman Jerry Nadler also said that the documents he's seeking are not covered by executive privilege because they were turned over to attorneys outside the White House.
  • The White House: The White House counsel's office has countered that it still has the right to invoke executive privilege with respect to congressional investigations, arguing that waiving executive privilege for Mueller's criminal investigation is not the same thing as doing so for a separate branch of government.
9:29 a.m. ET, May 21, 2019

Don McGahn was supposed to testify today. That's not going to happen.

Former White House counsel Don McGahn will not appear Tuesday before the House Judiciary Committee, his lawyers said in a letter Monday, defying the committee's subpoena.

Why this matters: It's a move that appears to set the stage for another contempt vote to retaliate against the Trump administration for rejecting the demands of Congress, as committee Chairman Jerry Nadler threatened late Monday to do whatever was necessary to make McGahn appear before his panel, which convenes Tuesday at 10 a.m. ET.

"As with the subpoena for documents, Mr. McGahn again finds himself facing contradictory instructions from two co-equal branches of government," McGahn's attorney William A. Burck said in a letter to Nadler. He added later, "Under these circumstances, and also conscious of the duties he, as an attorney, owes to his former client, Mr. McGahn must decline to appear at the hearing tomorrow."

Hours later, in a letter sent Monday night, Nadler warned McGahn that the committee would use "all enforcement mechanisms at its disposal" to compel his testimony.