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Judge rejects request for stay of order compelling McGahn's testimony to Congress

White House Counsel and Assistant to the President for U.S. President Donald Trump, Donald McGahn, as Supreme Court nominee Brett Kavanaugh testifies before the US Senate Judiciary Committee on Capitol Hill in Washington, DC, September 27, 2018. - Kavanaugh testified in front of the panel having stridently rejected the allegations of sexual abuse by Dr Christine Blasey Ford and two other women. (Photo by SAUL LOEB / POOL / AFP)        (Photo credit should read SAUL LOEB/AFP/Getty Images)

He was one of Trump’s top legal protectors. Now he’s been subpoenaed to appear before House impeachment investigators.

In an unsurprising move, U.S. district court Judge Ketanji Jackson refused a Department of Justice request for a stay of her ruling that former Trump White House counsel Don McGahn is required to comply with subpoenas from House impeachment investigators. Her order also lifts the temporary stay she had placed on McGahn’s need to comply while she reviewed the Justice Department request.

In practice, the refusal may mean little: The Justice Department has already appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit, and either that court or the Supreme Court will likely jump in to save the Trump administration’s bacon while those higher courts themselves contemplate whether the administration’s new claims of “absolute immunity” against constitutionally premised congressional oversight are something that they should now codify or whether it is still, as nearly every legal scholar asked to weigh in on the matter has opined, nonsensical drivel. That means McGahn’s testimony may still be delayed for some time, even though the eventual outcome is, presuming we are still a democracy, still a given. “Absolute immunity” is not a thing; administration officials cannot refuse to provide evidence of criminal wrongdoing to Congress in order to thwart oversight of their actions.

The most significant portion of Jackson’s decision, then, is the dim view it takes of Justice Department arguments. Jackson bases her refusal to issue a stay on the “exceedingly low” chances of the higher courts recognizing Justice Department claims, and fairly blasts the department for its “disingenuous” arguments in seeking one.

It also rejects the very premise that McGahn is “harmed” by having to give such testimony, stating that “compliance with a valid subpoena that a committee of Congress issues pursuant to Article I investigative powers is itself a legal duty, and therefore not an injury at all.”

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