Absolute Immunity
McGahn Case
Major Issue: Whether a House committee may compel a former White House counsel to testify before Congress, or whether senior-level presidential aides are absolutely immune to Congressional testimonial subpoenas.
Case Status: Awaiting appellate court opinion.
Case Description: On August 7, 2019, the House Judiciary Committee filed suit in D.C. federal district court to enforce a subpoena requiring former White House counsel Donald McGahn to provide testimony to Congress. Mr. McGahn, represented by the Department of Justice (“DOJ”), opposed the suit. The district court upheld the subpoena, and ruled that senior-level presidential aides are not absolutely immune to Congressional testimonial subpoenas, but could assert privilege on a question-by-question basis. An appeal is now underway.
Procedural Posture: D.C. District Judge Ketanji Brown Jackson was assigned to Case No. 19-cv-2379. On Nov. 25, 2019, the district court upheld the subpoena. On Nov. 27, 2019, Mr. McGahn, through DOJ, filed motions to stay the district court’s ruling in both the district court and the D.C. Circuit Court of Appeals. On Dec. 2, 2019, the district court denied the request for a stay. The appeals court issued a stay pending review of the case, and on Jan. 3, 202, a 3-judge panel heard oral argument. The panel has yet to issue an opinion.
District Court Proceedings
On Nov. 25, 2019, the district court upheld the House subpoena and ruled that senior-level presidential aides are not absolutely immune to Congressional testimonial subpoenas. Committee on the Judiciary, United States House of Representatives v McGahn, No. 19-2379 (KBJ), 2019 WL 6312011 (D.D.C. Nov. 25, 2019). On Dec. 2, 2019, the district court denied a request by Mr. McGahn, represented by DOJ, to stay the proceedings pending appeal. However, the D.C. Circuit Court of appeals issued a stay, and an appeal of the lower court ruling is now underway.
- 2019 House Judiciary Committee Complaint (8-7-2019) (54 pages)
- 2019 House motion for summary judgment (8-26-2019) (57 pages)
- 2019 McGahn motion for summary judgment (10-1-2019) (83 pages)
- 2019 McGahn withdraws accommodation defense (10-30-2019) (3 pages)
- 2019 District Court Opinion upholding subpoena (11-25-2019) (120 pages)
- Key Excerpts from District Court Opinion upholding subpoena (9 pages)
- 2019 McGahn motion for stay pending appeal (11-26-2019) (10 pages)
- 2019 House memo opposing stay pending appeal (11-26-2019) (9 pages)
- 2019 District Court Opinion denying stay pending appeal (12-2-2019) (17 pages)
- Key Excerpts from District Court Opinion denying stay (4 pages)
Appeals Court Proceedings
On Nov. 27, 2019, Mr. McGahn, through DOJ, filed an appeal with the D.C. Circuit Court of Appeals and requested an emergency stay of the district court’s order. A 3-judge panel, with Judges Griffith, Henderson, and Rogers, was assigned to Case No. 19-5331. On Nov. 27, 2019, the panel granted a stay on the district court’s order pending review of the case. On Jan. 3, 2020, the appellate panel heard oral argument, but has yet to issue an opinion in the case.
- 2019 McGahn appeals motion for stay (11-27-2019) (29 pages)
- 2019 Appeals Court Order issuing stay (11-27-2019) (2 pages)
- 2019 McGahn brief supporting appeal (12-9-2019) (73 pages)
- 2019 House Judiciary brief opposing appeal (12-16-2019) (79 pages)
- 2019 Republican leaders amicus brief opposing appeal (12-16-2019) (44 pages)
- 2019 House Judiciary brief addressing impeachment issues (12-23-2019) (19 pages)
- 2019 McGahn appeals brief addressing impeachment issues (12-23-2019)(10 pages)
- 2020 House letter to Court re impeachment proceedings (1-23-2020)(2 pages)
Supreme Court Proceedings
No proceedings to date.