Both actions have crystallized the next steps in the months-long legal battle, one day after U.S. District Court Judge Kentanji Brown Jackson issued her potentially precedent-setting decision.
In her 120-page opinion, Jackson argued that Trump’s advisers do not enjoy “absolute immunity” from facing lawmakers’ questions about their work under oath. She found that “no one is above the law” and took issue with Trump’s efforts to stonewall congressional oversight via a blanket order directing aides not to testify.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote.
But DOJ on Tuesday responded by requesting a new hearing before the U.S. Court of Appeals for the D.C. Circuit, as well as asking Jackson for a temporary stay on her ruling for McGahn to testify.
It also asked for Jackson to grant a full stay pending the outcome at the appellate court. If a pause is granted, McGahn’s lawyer said he’ll wait to decide on whether to appear before the House panel until the case has been decided.
DOJ’s petition to pause the decision argued that it expects to succeed as it appeals up the legal chain. It maintains that a president’s advisers are, indeed, “absolute immune” from a congressional subpoena. No binding federal appeals court decision has yet touched that question, the department said.
“On an issue of this importance to the nation, it plainly serves the public interest to have the issues raised in this case resolved by an appellate tribunal,” DOJ wrote.
In an odd twist, though, Trump on Tuesday tweeted that he “would actually like people to testify,” but said he had resisted because he was “fighting for future Presidents.”
While the D.C. Circuit is not a friendly forum for Trump — it currently includes seven active judges appointed by Democratic presidents compared with four from Republicans — a temporary stay is likely.
The same appellate court has already put an administrative stay on another lower court decision that Democrats should get access to some of Mueller’s secret underlying evidence.
McGahn testified for 30 hours to the Mueller team and described multiple incidents where the president tried to either stymie or outright kill the special counsel’s probe into Russian interference in the 2016 presidential election. Democrats are now weighing whether to include articles of impeachment tied to the Mueller report, including one about potential obstruction of justice.
In addition to McGahn, Trump is trying to block at least three senior aides from testifying to Congress — former national security adviser John Bolton, Bolton’s deputy, Charles Kupperman, and acting chief of staff Mick Mulvaney. His attorneys have claimed all are “absolutely immune” from testifying in the impeachment probe.
Trump, however, appeared to complicate that claim on Tuesday with his tweets. He specifically said he would welcome testimony from McGahn and Bolton, but argued that he couldn’t risk a damaging precedent from being set.
“It is a Democrat Scam that is going nowhere but, future Presidents should in no way be compromised. What has happened to me should never happen to another President!” Trump tweeted.
The House subpoenaed Kupperman but later withdrew its demand after he sued, asking a judge to decide whether he should comply with the subpoena or the White House orders.
Democrats accused Kupperman, and by extension Bolton, of a delay tactic, since court proceedings could take months. They instead urged the two men to honor Jackson’s ruling in the McGahn matter since it has always been expected this month.
On Tuesday, Charles Cooper, the attorney for both Kupperman and Bolton, said the duo would not voluntarily comply with Jackson’s decision.
In a statement, Cooper argued that the two cases were different because of Kupperman and Bolton’s involvement in national security issues. He cited a prior court ruling that “national security” could be a valid reason to invoke the “absolute immunity” protection.
The McGahn ruling, he said, is not “authoritative on the validity of testimonial immunity for close White House advisors, like Dr. Kupperman, whose responsibilities are focused exclusively on providing information and advice to the president on national security.”
U.S. District Court Judge Richard Leon, an appointee of President George W. Bush, is scheduled to hold a Dec.10. hearing on the Kupperman lawsuit.