The Justice Department has formally appealed Monday’s ruling by a federal judge finding that McGahn must comply with a House subpoena and asked that the order be stayed until the case is resolved.
“Please take notice that Defendant Donald F. McGahn, II, hereby appeals to the United States Court of Appeals for the District of Columbia Circuit,” Justice Department civil division trial attorney Steven A. Myers wrote in a brief notice that was docketed Tuesday morning.
In a 118-page opinion Monday, U.S. District Judge Ketanji Brown Jackson of Washington found the Trump White House’s claim that top aides are “absolutely immune” from congressional subpoena has no basis in law and ruled that top presidential advisers cannot ignore congressional demands for information.
The decision raises the possibility that McGahn could be forced to testify as part of the impeachment inquiry, depending on whether higher courts agree and how swiftly they rule on a potentially historic separation-of-powers confrontation between the executive and legislative branches of the government.
On Tuesday, the Justice Department asked both Jackson and the U.S. Circuit Court for the D.C. Circuit to grant an immediate stay, to remain in effect until the issue is decided.
“For only the second time in our history, a court has ordered a senior presidential advisor to testify before Congress,” Myers wrote, referring to a 2008 decision in which a federal judge similarly 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, however.
“This case raises the same significant and difficult separation-of-powers questions presented in Miers, and no binding precedent has addressed those issues since,” Myers wrote. “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 department’s motion for a stay noted that presidents in both parties have invoked immunity for top aides, including a 2014 Justice Department opinion that concluded that David Simas, director of the Obama’s White House’s Office of Political Strategy and Outreach, did not have to comply with a subpoena issued by the House Oversight Committee, then chaired by former Rep. Darrell Issa (R-Calif.).
“This rule is the longstanding 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?’”