The Justice Department, which represents former White House counsel Don McGahn, has asked a federal judge for a pause on McGahn’s House testimony while he appeals the judge’s ruling that he must comply with a House subpoena.
Even if Judge Ketanji Brown Jackson refuses, the House has agreed to give the administration a seven-day delay so it can ask the DC Circuit Court of Appeals for help, according to a new court filing.
The DOJ wrote this morning that it still believes McGahn has a “significant chance” of winning against the House on appeal. Jackson wrote a searing 120-page opinion Monday, saying McGahn must testify. She wrote that she disagreed with the executive branch’s legal claims of current and former officials having “absolute immunity.”
The Justice Department notes today that no appeals court has settled on whether the executive branch can stop White House officials from testifying in congressional proceedings.
It also notes that McGahn’s testimony would be for part of the impeachment inquiry related to the Russia investigation, and not the major Ukraine inquiry that’s ongoing. The department also uses another case that it lost at the trial level and is appealing, on giving the House access to secret grand jury details from the Mueller investigation, as more reason to delay McGahn.
That case should be decided first as courts consider whether McGahn must appear before Congress, the DOJ writes. The DC Circuit is scheduled to hear arguments about the Mueller grand jury secrets in early January.
That case has moved through the courts more quickly than usual, and DOJ acknowledges the McGahn case may, too:
“And since the Committee cannot obtain the grand jury materials that it says are ‘essential’ to questioning Mr. McGahn until at least early 2020, it follows that the Committee would not be significantly harmed by waiting to question Mr. McGahn until completion of similarly expedited appellate briefing in this case,” the DOJ wrote Tuesday.