DOJ Asks Judge To Pause Her Decision Backing McGahn Subpoena While It Appeals

Supreme Court nominee Judge Brett Kavanaugh arrives for testimony before the Senate Judiciary Committee the second day of his Supreme Court confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy.
WASHINGTON, DC - SEPTEMBER 05: White House Counsel Don McGahn (C) listens as Supreme Court nominee Judge Brett Kavanaugh (L) testifies before the Senate Judiciary Committee on the second day of Kavanaugh's confirmat... WASHINGTON, DC - SEPTEMBER 05: White House Counsel Don McGahn (C) listens as Supreme Court nominee Judge Brett Kavanaugh (L) testifies before the Senate Judiciary Committee on the second day of Kavanaugh's confirmation hearing on Capitol Hill September 5, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy. (Photo by Chip Somodevilla/Getty Images) MORE LESS
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November 26, 2019 9:35 a.m.

The Trump administration moved quickly to respond to a judge’s Monday decision against it in the Don McGahn case, with a notice Tuesday morning that it was appealing the ruling and a request that the judge pause her ruling for the appeal.

U.S. District Judge Ketanji Brown Jackson had issued a sweeping decision that ripped apart the Trump administration’s claim that “absolute” immunity protected the former White House counsel from even showing up for subpoenaed testimony in front of the House. Brown ordered that McGahn comply with the subpoena.

In its stay request, the Justice Department nonetheless argued that it had a “likelihood” of success on appeal — one of the thresholds that must be met for a lower court decision to be paused.

The Justice Department also argued that the circumstances met the “irreparable harm” standard of granting a stay, because “if Mr. McGahn testifies before Congress, the absolute immunity from compelled congressional testimony would be vitiated.”

Additionally, the administration compared the case to a case arising from the George W. Bush administration, involving the testimony of a top official, and pointed out that the lower court’s decision backing the subpoena in that case was stayed for its appeal.

Read the stay request below:

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