Ex-National Security Adviser Argues Subpoena Case Isn’t Moot

WASHINGTON (CN) – Hours after six House committees rolled out articles of impeachment, a former top adviser to President Donald Trump was in federal court Tuesday over a rescinded subpoena that he argues Democrats could revive in a Senate trial.

Former deputy national security adviser Charles Kupperman filed an October lawsuit in Washington, arguing he was caught between House Democrats ordering him to appear to testify and Trump ordering him to ignore the subpoena.

Light shines on the U.S. Capitol dome on Dec. 4, 2019. (AP Photo/Patrick Semansky)

Democrats have since pulled the subpoena, but Kupperman still claims to be at risk of violating his constitutional oath or being held in contempt of Congress.

House attorney Todd Tatelman told U.S. District Judge Richard Leon the House had no intention or desire to reissue the subpoena. Attorneys for both defendants urged Leon to dismiss the case, noting Kupperman’s concerns over being held in contempt were a hard sell because the last time Congress took that route was in 1935.

“We have not been on a contempt spree, your honor,” Tatelman said.

The judge, laughing, asked if Congress then does not have a jail hidden in the basement of the U.S. Capitol. Tatelman, laughing along, responded: “We like to keep up appearances.”

Kupperman’s attorney Charles Cooper, who also represents former national security adviser John Bolton, strongly urged Leon to find that the case is not moot.

“The assurances that have been offered to you are the naked statements of the House’s lawyers,” Cooper said.

“Mr. Tatelman has just represented that he is authorized by the speaker of the House,” the judge responded.

But Leon recognized a risk that, looking to “fill in the record,” Democrats may call Kupperman to testify in the Senate trial that would follow a likely House vote to impeach the president.

“The winds of political fortune are known to shift quickly,” Leon said.

The judge also noted, however, that Kupperman is not among the nine executive branch officials named in the articles of impeachment who by order of the president did not respond to House subpoenas.

“Isn’t that some tangible indication?” Leon asked Cooper.

Acting White House Chief of Staff Mick Mulvaney, who sought to join the lawsuit before the House pulled Kupperman’s subpoena, is listed in the section Leon referred to which outlines how Democrats say Trump abused the powers of his office.

But the question died out when Cooper admitted he had not seen the articles, before adding: “I don’t think the articles say ‘Kupperman is off the hook.’”

Still, the House held firmly that there is no constitutional conflict or concrete evidence to prove the case should be fully adjudicated. Tatelman dismissed Cooper’s argument that the House Intelligence Committee report on the impeachment investigation released last week threatened Kupperman when it named him as a witness who refused to testify.

“The report is a political document, not a legal filing,” Tateleman said.

But Leon appeared unconvinced. “It does seem like threatening language at a minimum,” the judge said.

The Justice Department, in a rare agreement with House Democrats, also argued the case was moot. But Deputy Assistant Attorney General James Burnham added that Kupperman would have lacked standing regardless because Trump in no way overstepped executive powers by ordering Kupperman not to testify.

Burnham argued the last eight Oval Office holders have asserted similar immunity claims.

But his immunity argument fell short with a federal judge in the same D.C. court who ruled last month — in a similar case over a subpoena to former White House counsel Don McGahn — that Trump does not hold absolute authority over his aides’ testimony.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings,” U.S. District Judge Ketanji Brown Jackson wrote.

Leon appeared ready to rule from the bench Tuesday but opted to take the case under advisement. The judge promised to issue an opinion before the end of the month.

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