U.S. District Judge Ketanji Brown Jackson, who last week harshly rejected President Trump’s claim of absolute immunity to prevent testimony of former White House counsel Donald McGahn, struck another blow for legal integrity in a devastating opinion denying McGahn a stay to appeal the ruling.

DOJ’s stay motion fails to demonstrate that any portion of this Court’s legal analysis is erroneous, or even that the legal issues raised in this case “represent fair ground for litigation[.]” . . . . Moreover, neither the Supreme Court nor the D.C. Circuit has ever previously held that the significance of the issues presented in a case, standing alone, is enough to warrant a stay pending appeal. To the contrary, it is well established that “[s]imply calling an issue important— primarily because it involves the relationship of the political branches—does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue.”

The court dismissed DOJ’s cheeky claim that the House would not really suffer harm from loss of McGahn’s testimony. “DOJ’s argument that the Judiciary Committee will not be meaningfully harmed by a stay of this Court’s Order pending appeal seems disingenuous, and therefore, is unpersuasive,” Jackson wrote. She continued, “Thus, DOJ’s argument here that any further delay will not be harmful to the Judiciary Committee because, in essence, DOJ has already harmed the Committee’s interests by successfully delaying its access to other materials strikes this Court as an unacceptable mischaracterization of the injury at issue. And, indeed, DOJ cites no authority for its suggestion that, if a stay movant has already successfully forestalled an opponent’s vindication of its rights, any additional delay that a stay in the instant matter would cause should not count as harm.”

Jackson concluded, “This Court has no doubt that further delay of the Judiciary Committee’s enforcement of its valid subpoena causes grave harm to both the Committee’s investigation and the interests of the public more broadly.”

The judge also knocked down the argument that the House didn’t really need McGahn’s testimony because it really only cares about the Ukraine scandal. “For one thing, it is the Judiciary Committee, and not DOJ, that gets to establish the scope of its own Article I investigation, and the Committee has repeatedly represented that it is, in fact, reviewing the Mueller Report as part of the House’s impeachment inquiry.” She added, “DOJ also does not, and cannot, deny that whatever additional information that the Committee (and the public) might glean from McGahn’s live testimony will be lost if the Judiciary Committee does not have an opportunity to question him prior to any House vote on impeachment.”

Her initial opinion on McGahn’s testimony was blistering, and her opinion on the stay evidences obvious frustration, if not contempt, for the frivolous arguments Trump’s DOJ insists on making. Her opinion is a telling reminder that when facts and the law — rather than bogus talking points for the Fox News audience — matter (as they do in a courtroom), Trump’s defenses crumble.

McGahn still may raise executive privilege when he appears in response to individual questions, but he’s got no excuse now absent a lightning-quick reprieve from the court of appeals. Other witnesses (e.g., John Bolton) holding out for a higher-court ruling on the subject should take note. They should not be able to hide behind a ludicrously weak absolute immunity defense, and their attorneys as officers of the court should shy away from making patently frivolous arguments.

McGahn’s appearance could well affect the scope of the articles of impeachment. Depending on what the court of appeals and/or Supreme Court decide, Jackson’s ruling might unleash a torrent of new evidence and witnesses, both in the Russia/Mueller report case and in the Ukraine matter.

If anyone was “irreparably harmed" here, it was the DOJ’s crumbling credibility on the watch of an attorney general convinced his job is to ignore replete evidence contradicting Trump’s conspiracy theories and make any argument, no matter how lacking in merit, in Trump’s defense.

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