The House has subpoenaed Don McGahn, the White House has asserted privilege with respect to his testimony, and the NYT thinks that his practice at Jones Day is somehow relevant. That odd suggestion is wrong, as is the TImes's assertion that, in this context, a contempt citation would be "a black mark" on Mr. McGahn's record.
The Times reports that the White House plans to instruct Mr. McGahn not to testify, and plans to provide him an OLC opinion justifying that instruction. The report is not precise on the nature of the instruction, but I infer it will be a combination of executive privilege and attorney-client privilege. The law is less well developed on the former than the latter, as the Times suggests.
Drawing an analogy to the latter, when a client wants to assert privilege it is proper for a lawyer to do so with respect to questions as to which there is a basis for doing so (and to err on the client's side with respect to whether there is such a basis). A consequent contempt citation is a common means of obtaining a judicial resolution of the assertion. E.g. In re Sealed Case, 107 F.3d 46, 48 (D.C. Cir. 1997). In theory the House could spend time probing the parameters of the assertion, In re LeFande, 919 F.3d 554, 563 (D.C. Cir. 2019), but in this case that doesn't seem like a good use of anyone's time. It would save time (but lose political theater) if Mr. McGahn and the House agreed that he would follow the privilege instruction and the House then just held him in contempt. (The formal procedure would require that he appear and then assert the privilege.)
One might also argue that an assertion of executive privilege should be treated differently than an assertion of attorney-client privilege. Those are arguments, however, not rulings. To the extent executive privilege might apply, it is a right Mr. McGahn's former client (the Office of the President) possesses. A prudent lawyer faced with a former client's assertion of that right would wait for a ruling rather than mooting the assertion himself. It seems likely that the House and the White House will need to get a ruling on the privilege assertion, and a contempt citation is a proper way to tee that issue up.
But none of this means that Mr. McGahn is stuck between his book of business and a black mark on his record. A contempt citation that allows a client to obtain a judicial ruling with respect to a client's assertion of its rights is a sign of good lawyering, not bad. Notwithstanding the Times' unfortunate suggestion to the contrary, Mr. McGahn continues to conduct himself like a real lawyer.
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Update. The memo is here. The OLC position is that no appearance is required, so the procedural analogy to attorney-client privilege may not hold.
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