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.

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.

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. 

No proceedings to date.

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