Don McGahn. (Photo: Diego M. Radzinschi/ALM)

The Department of Justice has formally asked the U.S. Court of Appeals for the D.C. Circuit to stay a lower court order requiring former White House counsel Donald McGahn to comply with a House subpoena for his testimony.

In a filing Wednesday morning, DOJ lawyers asked the circuit to issue a seven-day administrative stay, as already agreed to by the House Judiciary Committee, and to block the order from going into effect as the appellate judges weigh the case.

The department argued that requiring McGahn to comply with the subpoena would cause them "irreparable injury," as it would violate the "absolute testimonial immunity" it believes he has as a former senior adviser to President Donald Trump.

And if the circuit court doesn't grant the stay, the department asked that it be given enough time to petition the U.S. Supreme Court for the motion.

"Fundamental separation-of-powers principles protect both the independence and autonomy of the Presidency, and the confidentiality essential to the President's effective performance of his functions under the Constitution," DOJ argued Wednesday. "A congressional committee violates that independence and autonomy by compelling the President's immediate advisors to testify about their official duties."

U.S. District Judge Ketanji Brown Jackson, who initially ordered that McGahn had to comply with a subpoena for his testimony, granted that administrative stay on Wednesday.

The department has also asked Jackson to issue a stay pending appeal of her Monday order. Jackson said in the order Wednesday that her granting the administrative stay "should not be construed in any way as a ruling on the merits of the motion for stay pending appeal."

McGahn rejoined Jones Day in March after leaving his post at the White House.

All signs point toward the circuit at least granting an administrative stay in the case as it weighs whether to grant a full pause on the district court order. The D.C. Circuit also granted a stay in the case of White House counsel Harriet Miers, who worked in the George W. Bush administration, after a district judge similarly ruled Miers had to comply with a congressional subpoena for her testimony.

Time is of the essence for the House as it swiftly moves through its impeachment inquiry of Trump. House Intelligence Committee Chairman Adam Schiff said Monday that his committee is drafting a report of its findings from its investigation into whether Trump improperly ordered the withholding of aid from Ukraine in exchange for investigations into his political rival, former Vice President Joe Biden.

That report will then be referred to the House Judiciary Committee, which is charged with drafting potential articles of impeachment.

House general counsel Douglas Letter has said McGahn's testimony is key to lawmakers' decision on whether to impeach Trump. Special counsel Robert Mueller's report lays out several acts of potential obstruction of justice by the president, some of which McGahn was privy to.

Letter has argued that McGahn not testifying could mean the House won't have access to evidence of potentially impeachable offenses as part of its inquiry and would prevent the probe from being as thorough as possible.

The House late Tuesday opposed the DOJ's motion for a stay in the district court, writing that "the delay from such a stay would impair the House's ongoing impeachment inquiry."

"Even if evidence from McGahn is not obtained before the House has completed its investigation, there is still an urgent need for that evidence because it could potentially be used if there is an impeachment trial in the Senate," the filing reads.

In her lengthy opinion issued Monday, Jackson ruled the House committee could go to court to enforce the subpoena and that McGahn was not exempt from testifying under the concept of "absolute immunity."

Jackson wrote the "immunity" concept "appears to be fiction," adding that "it is hard to imagine a more significant wound than such alleged interference with Congress' ability to detect and deter abuses of power within the Executive branch for the protection of the People of the United States."

McGahn's testimony is the subject of one of several legal battles currently being fought by the House as part of its impeachment inquiry.

U.S. Chief District Judge Beryl Howell ruled last month that DOJ must provide grand jury materials tied to the Mueller report to lawmakers. DOJ appealed that ruling, and a three-judge panel on the D.C. Circuit has scheduled oral arguments for Jan. 3.

In addition, a lawsuit over the House's efforts to get Trump's private tax information has made its way to the U.S. Supreme Court. After a district court judge and the D.C. Circuit both ruled that lawmakers could subpoena Trump's private accountant Mazars for the financial records, the high court has temporarily paused the document mandate.

The justices gave Trump's private attorneys at Consovoy McCarthy until noon on Dec. 5 to file a petition for them to take up the case. If the Supreme Court does agree to hear the challenge, as it's expected to, House Democrats could be left waiting until late June for a ruling on whether they can obtain the documents.

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