The OLC’s opinion today does not provide a safe harbor for Don McGahn

Here’s my take on McGahn’s subpoena, based on a very quick scan of the Memorandum for Cipollone by Steven Engel (Assistant AG and head of the Office of Legal Counsel) 1/9 tinyurl.com/y4fftfed

Trump’s directive to Gahn does not make it illegal for McGahn to testify before Congress, nor does Engel’s memo purport that it does. But the OLC has taken the position that the law does not *compel* McGahn to testify in response to Nadler’s subpoena. 2/9

Because McGahn has said that he will comply with the law (suggesting that he will comply with Nadler’s subpoena only if he concludes that the law compels him to do so), this means that if McGahn hews to the OLC’s opinion, he will feel free to defy the HJC subpoena. 3/9

But this is just a delaying tactic. Like all the other subpoenas, this one is destined to end up in the courts in a civil suit. Here, the DOJ and the WH are quite likely to lose, as is pretty clear from Section C, which is the most important section of the OLC (Engel’s) memo. 4/9

There the OLC has to acknowledge that, to the extent the issue of testimonial immunity has been tested in courts, the precedents have gone against the DOJ”s current position. 5/9

(Section C of the memo cites especially Comm. on the Judiciary of the U.S. House of Representatives v. Miers, 542 F.3d (D.C. Cir. 2008), an opinion which in turn cites Harlow v. Fitzgerald, 457 U.S. 800 (1982), another important precedent.) 6/9

Given the weakness of the DOJ’s position on civil contempt (which goes to the courts), it is understandable that the OLC memo expresses concern that Nadler might invoke inherent contempt. This involves possible criminal penalties for McGahn. 7/9

There is nothing that the DOJ can do to prevent Nadler or the House from charging inherent contempt, and given the weakness of the government’s position on civil contempt, 8/9

it is something that McGahn (and others who might very well be put in his position, like Treasury Secretary Mnuchin) have to worry about. 9/9

PS1/ The McGahn subpoena lies at the heart of the House’s oversight function, because McGahn is an important fact witness for what is certainly the strongest case in the Mueller Report that Trump obstructed justice.

PS2/ It would seem, a priori, that the Report greatly strengthens Congress’s case for invoking subpoena powers for this reason. Miers, for example, did not raise this issue (obstruction of justice and possible impeachment charges) as sharply.