At least for now, former White House counsel Don McGahn won’t have to testify to the House of Representatives.
After McGahn appealed a judge’s ruling from earlier this week that he must speak to the House, the judge, Ketanji Brown Jackson, gave McGahn a temporary pause on his case on Wednesday. The judge will continue to consider whether her ruling Monday should be kept on hold as he appeals. The appeals court said Wednesday evening that it would hear arguments on January 3, and put its own temporary hold on McGahn’s testimony.
The judge noted that her order Wednesday “should not be construed in any way” as an indication of whether she agrees his testimony should stay on hold during the appeal.
In the course of this week’s hearings, McGahn’s case has become one of the fastest moving and potentially consequential court challenges for President Donald Trump during the impeachment inquiry and for future presidencies. If the appeals court — and potentially ultimately the Supreme Court — decides it in McGahn’s favor, the White House could have the authority to broadly stonewall congressional investigations and even a Senate impeachment trial. If McGahn were to continue to lose in court, as he did this week, the House could gain vast ability to force top administration officials to appear before it.
The case, along with the House’s ongoing attempts to get access to Trump’s financial records and grand jury secrets from special counsel Robert Mueller’s investigation, puts significant questions about the power of the President versus Congress in the federal courts’ hands.
January 3 will be the same day the DC Circuit Court will also hear arguments about whether the Justice Department must turn over the Mueller grand jury material to the House.
Jackson on Monday decided McGahn must testify in the House impeachment probe about Trump’s actions, especially during the Russia investigation. House Democrats have said they want McGahn to speak to episodes where Trump attempted to obstruct the investigation. The judge also strongly rebuked the White House’s stonewalling of its current and former officials, which the administration says are immune from having to appear at congressional proceedings.
Justice Department lawyers who represent McGahn appealed the ruling quickly, asking the courts to hold off his testimony until the DC Circuit Court of Appeals can weigh in.
The ruling this week was the first major decision by a federal judge in the Trump administration on whether its officials must speak to the House. Another case, involving a former deputy national security adviser who could speak to Trump’s actions regarding Ukraine, is still tied up in court.
A decision from the DC Circuit on McGahn and immunity for White House officials would mark the first time an appeals court has interpreted its role in a stand off like this between the executive branch and Congress.