The Department of Justice on Wednesday asked the federal appeals court in Washington to block a lower court ruling that would require former White House counsel Donald McGahn to testify in the Democratic-led impeachment inquiry into President Donald Trump.
A federal judge ordered McGahn to comply with the subpoena earlier this week in a ruling that could have broad implications for other potential witnesses, including former national security advisor John Bolton, who has so far refused to speak with Congress in the probe.
The filing was submitted in the U.S. Court of Appeals for the D.C. Circuit. It asks the appeals court to temporarily halt the lower court ruling on an emergency basis pending a formal appeal.
Joseph Hunt, assistant attorney general, wrote in the brief that the lower court "gave insufficient weight to the separation of powers" in ordering McGahn to comply with the subpoena issued by the House Judiciary Committee.
"Only once before in our Nation's history has an Article III court attempted to compel a close presidential advisor to appear and testify before Congress," Hunt wrote, referencing a 2008 court dispute over a scandal involving the firing of U.S. attorneys.
"In that case — which likewise involved a former White House Counsel — this Court not only granted a stay pending appeal but took the unusual step of publishing a precedential opinion granting the stay, explaining that the dispute was 'of potentially great significance for the balance of power between the Legislative and Executive Branches,'" he wrote.
The court case will ultimately test the sweeping view of presidential immunity that Trump's lawyers have put forward in the White House's battles against Congress.
U.S. District Judge Ketanji Brown Jackson, in her ruling on Monday, rejected the president's view, saying that "Presidents are not kings."
McGahn stepped down in October 2018 and has since joined the law firm Jones Day. Democrats sought his testimony on matters related to former special counsel Robert Mueller's Russia investigation, but McGahn failed to show up on his scheduled hearing date in May.
In a post on Twitter on Tuesday, Trump said that "D.C. Wolves and Fake News Media are reading far too much into people being forced by Courts to testify before Congress."
"I am fighting for future Presidents and the Office of the President. Other than that, I would actually like people to testify," Trump said.