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White House instructs Hope Hicks, former McGahn aide not to comply with congressional subpoenas

The Washington Post logo The Washington Post 6/5/2019 Rachael Bade, Carol Leonnig
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The White House instructed Hope Hicks, a former aide to President Trump, and the ex-counsel’s chief of staff not to cooperate with a congressional subpoena for documents related to their White House service.

The House Judiciary Committee issued the summonses last month to Hicks, one of Trump’s closest staffers and longtime aides, and to Donald McGahn’s staffer, Annie Donaldson, as part of its expansive probe into potential abuse of power, public corruption and obstruction.

Both faced a Tuesday deadline to turn over documents, and have been subpoenaed to appear to testify later in June.

In a statement, Rep. Jerrold Nadler (D-N.Y.), committee chairman, said the two were told not to cooperate.

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“As part of President Trump’s continued obstruction of Congress, the White House has instructed both Hope Hicks and Annie Donaldson not to turn over records in response to subpoenas issued by our committee last month,” Nadler said. “I note that Ms. Hicks has agreed to turn over some documents to the committee related to her time working for the Trump campaign, and I thank her for that show of good faith.” 

Nadler said federal law says the documents that left the White House months ago are no longer covered by executive privilege “if they ever were.”

“The president has no lawful basis for preventing these witnesses from complying with our request,” Nadler said. “We will continue to seek reasonable accommodation on these and all our discovery requests and intend to press these issues when we obtain the testimony of both Ms. Hicks and Ms. Donaldson.”

In a letter to Nadler, Hicks’s lawyer Robert P. Trout said the White House and the Trump transition team had instructed her that documents pertaining to her time working for both entities would likely be subject to executive privilege or confidential.

“Because we have not been authorized to disclose Ms. Hicks’s documents from the transition period from the time that she served in the White House, we respectfully decline to provide those documents to the committee,” he wrote.

He additionally noted that the White House, the transition team and the Trump campaign provided him documents to help prepare Hicks for interviews with congressional committees and the special counsel. But, he said, “we received those documents with the understanding that they were provided to us for the limited purpose of preparing Ms. Hicks for those interviews, and we were not authorized to use them for any other purpose or to disclose them.”

“In that sense, we do not regard these documents as within Ms. Hicks’s control,” he said. “The decision whether to produce these documents is not hers to make. . . . Given the institutional interests at stake, it would not be appropriate for Ms. Hicks unilaterally to take action that infringes on that process.”

However, Trout enclosed documents in her possession related to the campaign that he did feel she could turn over.

The White House advised Nadler that Hicks and Donaldson cannot provide records that are the property of the White House, according to a White House official who spoke on the condition of anonymity to freely discuss private deliberations.

White House Counsel Pat Cipollone sent a letter Tuesday to Nadler explaining that acting White House chief of staff Mick Mulvaney had directed Hicks and Donaldson not to provide records or information that involve executive branch material and their time in the White House, the official said.

Cipollone told Nadler that the committee needs to negotiate directly with the White House to determine which records it can obtain.

The standoff is just the latest in the escalating war between the House and the Trump administration. The lower chamber is set to vote next week on a massive contempt citation for Attorney General William P. Barr and McGahn for refusing to comply with subpoenas. The matter will then move to civil court, where Democrats hope they can convince a judge to force both men to comply with congressional probes.

Democrats are likely to do the same with Hicks and Donaldson should they follow the White House request and refuse to answer questions and turn over documents.

The dust-up comes as frustrated Judiciary Committee Democrats have begun calling for Speaker Nancy Pelosi (D-Calif.) to open an impeachment inquiry against Trump that they believe will hasten judicial rulings in their favor. Investigators have been stuck, unable to advance their probes because of an uncooperative White House.

Donald Trump wearing a suit and tie: President Trump reacts as he stands next to former White House Communications Director Hope Hicks outside of the Oval Office as he departs the White House for a trip to Cleveland last year. © Carlos Barria/Reuters President Trump reacts as he stands next to former White House Communications Director Hope Hicks outside of the Oval Office as he departs the White House for a trip to Cleveland last year.

Robert S. Mueller III ended his role as special counsel last week and said his office could not consider whether to charge Trump with a crime because of a long-standing Justice Department opinion that a sitting president cannot be indicted. During a brief public appearance, Mueller repeated a line in his report explaining that his team would have exonerated Trump of obstructing the probe into Russian election interference if it had the confidence to do so.

Some Democrats read that as a signal that they should more aggressively pursue impeachment of the president.

A coalition of more than two dozen liberal groups on Tuesday urged Pelosi to begin impeachment proceedings, writing in a letter that her reticence is “resulting in dangerous inaction that enables this racist and xenophobic president.” 

The strongly worded letter calls for her to exercise “bold, moral leadership” and says that “instead of using your power, you are giving us political excuses for why you shouldn’t.”

The groups signing the letter include CREDO Action, Free Speech for People, MPower, Movimiento Cosecha, Democracy for America, Indivisible, Working Families Party and Women’s March.

Pelosi and leadership members have pushed back on the impeachment plea, arguing that Trump is seeking such a step knowing the Republican-led Senate would vote to acquit him in a political boost.

In its investigation, the Judiciary Committee is particularly interested in Donaldson, who took detailed notes of McGahn’s exchanges with the president. McGahn was a central witness in some of the 10 instances of potential obstruction identified by Mueller in his report.

The panel also thinks Hicks, a longtime close confidant of Trump, probably knows details on several topics they are investigating.

McGahn also faced a deadline to hand over all communications pertaining to the Mueller probe, but the White House told McGahn it would invoke executive privilege over the material. McGahn ultimately refused to turn over anything.

Donaldson appears as a critical contemporaneous narrator of some of the most worrisome and tempestuous moments inside the West Wing. She took notes directly from McGahn as he left discussions with Trump, documenting how he railed against and sought to control a criminal investigation that he felt imperiled his presidency.

Donaldson is a sought-after witness because she can bring events in the White House to life, explaining what she and McGahn were feeling or fearing when Trump took some actions. Democrats would seek her reactions to some of these moments, including when Trump announced to staff he would fire then-FBI Director James B. Comey, and when he ordered McGahn to try to intervene and have Mueller removed for alleged conflicts of interest.

Donaldson’s daily habit of documenting conversations and meetings provided the special counsel’s office with its version of the Nixon White House tapes: a running account of the president’s actions, albeit in sentence fragments and concise descriptions.

Donaldson famously fretted in her West Wing diary “is this the beginning of the end?” when Trump insisted on firing Comey in May 2017 and on mentioning the president was not a subject of the Russia investigation in his public termination letter. She and McGahn both believed his mention of the Russia probe could be viewed as evidence he was engaged in obstruction of justice. She also described McGahn’s repeated efforts to try to protect Trump from his worst impulses and the case he was building against himself in various ways. That included when he sought to call the Justice Department himself and tried to improperly pressure Attorney General Jeff Sessions to “unrecuse” and resume control over the investigation.

Donaldson, 37, is married to a former Justice Department lawyer, and the couple have returned to Alabama. She is described by friends as proud of her work helping to implement a conservative agenda but somewhat stung by her experience in Washington.

The panel has sought to talk to Hicks as well. In an early March letter, they asked her to turn over communications she has had related to dozens of topics: They wanted any information about former national security adviser Michael Flynn’s move to lie to the FBI about his contacts with Russian official Sergey Kislyak as well as his resignation. They have asked for any information she has on Trump’s contact with Comey, particularly his firing.

They also asked her about hush-money payments to women alleging affairs with the president during the 2016 election and the June 9, 2016, Trump Tower meeting involving Donald Trump Jr., Paul Manafort, Jared Kushner and Russians who were supposed to be offering dirt on Hillary Clinton. Hicks was reportedly involved in crafting a July 8, 2017, statement about that meeting that was later found to be inaccurate.

rachael.bade@washpost.com

carol.leonnig@washpost.com

Rosalind S. Helderman and John Wagner contributed to this report.

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