The federal judge who ruled that former White House counsel Don McGahn must comply with a House subpoena for his testimony put her ruling on a brief hold Wednesday.
Such holds, known as administrative stays, are often issued to give lawyers a change to file their appeals. U.S. District Judge Kentanji Brown 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. Instead, she said, the order would give her time to consider the government’s request for a longer stay.
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After Jackson’s ruling on Monday, in which she rejected the government’s claim that senior White House advisers are absolutely immune to congressional subpoenas, the Justice Department immediately filed notice that it would appeal.
Lawyers for the House told the judge that while they would not 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.”
House Judiciary Democrats 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 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 cannot 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 Meiers, a White House counsel under President George W. Bush, could not refuse demands for her testimony.