The stay came after U.S. District Judge Ketanji Brown Jackson of Washington on Monday found no basis for a White House claim that the former counsel is “absolutely immune from compelled congressional testimony,” saying “Presidents are not kings” and raising the possibility that McGahn could be forced to testify before the House Judiciary Committee as part of its impeachment inquiry.
In a 29-page emergency motion, the Justice Department asked the appeals court to block Jackson’s order for McGahn to testify, noting that a similar stay was granted after a 2008 decision in which a federal judge found that former George W. Bush White House counsel Harriet Miers could not ignore a House subpoena. That case was settled before an appeal was decided.
“Only once before in our Nation’s history has an Article III court attempted to compel a close presidential advisor to appear and testify before Congress. In that case . . . this Court not only granted a stay pending appeal but took the unusual step of publishing a precedential opinion granting the stay, explaining that the dispute was ‘of potentially great significance for the balance of power between the Legislative and Executive Branches,’ ” Justice Department civil division appellate attorney Martin Totaro wrote.
Jackson also approved a similar seven-day stay on Wednesday. The House did not oppose either order as a courtesy to the Department of Justice.
“This case raises the same significant and difficult separation-of-powers questions presented in Miers, and no binding precedent has addressed those issues since,” civil division trial attorney Steven A. Myers wrote in the filing Tuesday to Jackson, adding, “Just as in Miers, this Court’s order should therefore be stayed to ensure that Defendant has an opportunity to seek meaningful appellate review.”
The filings noted that presidents of both parties have invoked immunity for top aides, including most recently a 2014 Justice Department opinion that concluded David Simas, director of President Barack Obama’s Office of Political Strategy and Outreach, did not have to comply with a subpoena issued by the House Oversight Committee and its chairman at the time, former Rep. Darrell Issa (R-Calif.).
“This rule is the long-standing view of the Executive Branch, consistently reaffirmed by administrations of both political parties for nearly five decades,” Myers wrote. “As one judge recently observed in a different context: ‘[C]ould it really be wrong if both Administrations agree on it?’ ”
The House Judiciary Committee went to court in August to enforce its subpoena of McGahn, whom lawmakers consider the “most important” witness in whether President Trump obstructed justice in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election.
Trump blocked McGahn’s appearance, saying McGahn had cooperated with Mueller’s probe, was a key presidential adviser and could not be forced to answer questions or turn over documents.
Jackson disagreed, ruling that if McGahn wants to refuse to testify, such as by invoking executive privilege, he must do so in person and question by question.
The Justice Department’s claim to “unreviewable absolute testimonial immunity,” Jackson wrote, “is baseless, and as such, cannot be sustained.”
The judge ordered McGahn to appear before the House committee and said her conclusion was “inescapable” because a subpoena demand is part of the legal system — not the political process — and “per the Constitution, no one is above the law.”
“However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires,” Jackson wrote in a 118-page opinion. “Fifty years of say so within the Executive branch does not change that fundamental truth.”
Jackson did not limit her ruling to impeachment proceedings but wrote, “It is hard to imagine a more significant wound than such alleged interference with Congress’ ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States.”
William A. Burck, McGahn’s attorney, said Monday: “Donald McGahn will comply with Judge Jackson’s decision unless it is stayed pending appeal.”
The court decision had been highly anticipated, with major implications for other high-value witnesses in the Democrats’ impeachment investigation, including former national security adviser John Bolton and Bolton’s deputy Charles Kupperman.
Correction: An earlier version of this report misstated that the appeals court issued a seven-day stay. It was U.S. District Judge Ketanji Brown Jackson of Washington who issued a seven-day stay on Wednesday on her own ruling.