Ordered to Testify in Impeachment Probe, McGahn Readies Appeal

Then-White House counsel Don McGahn at a Cabinet meeting in the White House in October 2018. (AP file photo/Evan Vucci)

WASHINGTON (CN) — The Trump administration wasted little time Tuesday challenging an order for former White House counsel Don McGahn to testify before Congress in the ongoing impeachment inquiry.

U.S. District Judge Ketanji Brown Jackson had issued the scathing opinion the night prior, calling it unconstitutional for the Justice Department to claim that “absolute testimonial immunity” shields senior-level White House aides.

At a hefty 120 pages, the opinion says the U.S. president does not control the destiny of “subjects, bound by loyalty or blood” to overcome former aides own will to speak openly on time served in the West Wing.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings,” Jackson wrote.

Pushback was anticipated by both parties, and McGahn’s lawyers at the Justice Department filed the first step in that effort Tuesday, asking Jackson to stay the ruling pending appeal.

The House Judiciary Committee, which is investigating if President Donald Trump obstructed justice during former special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, has agreed to a seven-day administrative stay.

McGahn also filed a notice of appeal, with plans to formally file with the D.C. Circuit on Wednesday. The motion in U.S. District Court argues that there is “no tradition” of federal courts enforcing congressional subpoenas.

“While there is a history and tradition of the House issuing subpoenas and using its own powers to enforce them, the Supreme Court has held that there is a critical difference between the authority to issue subpoenas and the authority to enforce them in court,” the motion states.

Jackson on the other hand found that no case on the books supports absolute immunity from congressional testimony for advisers close to the president.

The Justice Department shot back in its motion that the D.C. Circuit will not find binding precedent to back Jackson’s ruling in considering the “hotly contested proposition of enormous constitutional import.”

“And this rule is the longstanding view of the Executive Branch, consistently reaffirmed by administrations of both political parties for nearly five decades — with the most recent assertion before the one at issue here coming in 2014 during the Obama administration,” the motion states.

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