Judge Jackson has denied the request for a stay in enforcing the House subpoena directed to Donald McGahn. I have posted a copy of the memorandum opinion.
One part of the opinion seems to me to clearly be directed at thwarting the use of appeals to simply delay the process. The Court distinguishes the McGahan case and, by extension, all of the other cases attempting to defeat subpoenas directed to the Trump Administration, from the opinion in Comm. on Judiciary, U.S. House of Representatives v. Miers (Miers
Stay Opinion), 575 F. Supp. 2d 201, 204 (D.D.C. 2008). At page 6 of the slip opinion, the Court notes:
Miers was a case of first impression, whereas, now, two federal district court judges have addressed the same legal issues concerning both the authority of the federal courts to entertain a disputed subpoena-enforcement claim brought by the House Judiciary Committee after a former White House Counsel refused to testify before Congress in response to a valid subpoena; and also the President’s assertion that senior-level presidential aides have absolute testimonial immunity. And both judges rejected the Executive branch’s contentions—a track record that had not developed at the time that the D.C. Circuit considered the stay motion in Miers.
And, on page 16 of the slip opinion, the Court states:
[T]he fact that the issuance of a stay of McGahn’s testimony wouldEmphasis by the Court.
impede an investigation that a committee of Congress is undertaking as part of an impeachment inquiry is yet another distinction between the instant circumstances and those that existed when the D.C. Circuit stayed the district court order in Miers.
If the Courts continue to enforce the Congressional subpoenas and refuse to delay their enforcement, Senate acquittal will no longer be certain.