Appeals court puts brief hold on McGahn testimony order

House lawyers told the judge that a longer stay that lasted throughout the appeals process "would impair the House’s ongoing impeachment inquiry."
File: U.S. President Donald Trump's Second Year In The Oval Office
Don McGahn, then the White House counsel, arrives for a Senate Judiciary Committee hearing in Washington on Sept. 27, 2018.Aaron P. Bernstein / Bloomberg via Getty Images file

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By Pete Williams

A federal appeals court on Wednesday put a hold on a judge's ruling that former White House counsel Don McGahn must comply with a House subpoena while it considers whether the federal government is entitled to more time to appeal.

The U.S. Circuit Court of Appeals for the District of Columbia acted hours after U.S. District Judge Kentanji Brown Jackson issued a seven-day stay of her own order to give her time to consider the government's request for an even longer stay.

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Such holds, known as administrative stays, are often issued to give lawyers a chance to file their appeals, and Jackson said her order "should not be construed in any way as a ruling on the merits" of keeping her ruling on a longer hold.

The federal government, which argues that senior White House advisers are absolutely immune to congressional subpoenas, then appealed for the extra time to the circuit court, which set an expedited schedule for the underlying appeal with oral arguments on Jan. 3.

Lawyers for the House had told the judge that while they wouldn't oppose a brief stay, they would oppose a longer one that lasted throughout the appeals process.

"Such a stay would impair the House's ongoing impeachment inquiry," they said. And even if McGahn doesn't play a role in the House process, his testimony might be a factor in a Senate trial, they told the judge.

In her ruling on Monday, Jackson wrote, "It is clear to this court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist."

Democrats on the House Judiciary Committee said they wanted McGahn to testify about actions by the president that former special counsel Robert Mueller's report said could constitute obstruction of justice. After McGahn declined to respond in March to a voluntary request for documents, the committee issued a subpoena on April 22, describing him as "the most important witness, other than the president, to the key events that are the focus of the Judiciary Committee's investigation."

While the Justice Department's view is that close advisers to the president can't be forced to appear before Congress, no court has ever said so. In 2008, a federal judge in Washington rejected that view, ruling that Harriet Miers, a White House counsel under President George W. Bush, could not refuse demands for her testimony.

Alex Johnson contributed.