WASHINGTON (CN) — In a legal battle to determine if senior White House advisers are immune from testifying to Congress, John Bolton’s former deputy is arguing his case in D.C. federal court is not moot despite House Democrats pulling his impeachment subpoena.
While the former national security adviser stands on the sidelines in the lawsuit, a court victory for the House in Charles Kupperman’s case could open the door for Bolton to testify against President Donald Trump.
In a letter earlier this month to House investigative committees, Bolton’s attorney Charles Cooper told House Democrats his client has firsthand knowledge of “relevant meetings and conversations that have not yet been discussed in the testimonies thus far.”
Ordered by Trump not to testify, Kupperman, a former deputy national security adviser, is suing both the president and House Democrats. Kupperman argues both parties have put him at risk of violating his constitutional oath and being held in contempt.
Both Trump and the House have filed motions to dismiss. But Kupperman is pushing for a ruling saying Democrats can still reissue his subpoena.
Democrats had advised Kupperman to consider the outcome of a similar lawsuit involving former White House counsel Don McGahn. A federal judge ruled Monday that the Justice Department’s pillar argument in McGahn’s case that advisers close to the president hold “absolute testimonial immunity” is unconstitutional.
Cooper, who also represents Kupperman, said Tuesday that the McGahn ruling in no way impacted his clients’ positions on testifying to the House committees investigating Trump.
Cooper wrote in a brief filed in Kupperman’s case on Wednesday that the House reminding his client that Kupperman “still has an opportunity to fulfill his solemn constitutional duty” suggests the former White House staffer may still be called to testify.
“Unless the House Defendants anticipated that Plaintiff would once again face a congressional subpoena, they would have no reason to ‘expect’ Plaintiff’s conduct to change in light of the McGahn litigation,” Cooper wrote.
The attorney further argued the meager assurance from lawmakers that no future subpoena lies ahead for Kupperman is contingent on the current status of the impeachment probe.
“Promises centered on present circumstances provide cold comfort, particularly in the context of an impeachment inquiry that provides new and often unpredictable revelations on a daily basis,” Cooper wrote.
The House and Trump agree the case is moot. But in a brief filed Wednesday in response to the president’s motion to dismiss, Democrats warned the White House is out to impede the legislative branch’s power to impeach.
“Allowing the President to thwart Congressional inquiries would upend the separation of powers and impair Congress in the performance of its constitutional functions,” the House memo states.
The House also reminded the court that the Justice Department has given no assurance that the White House will not retaliate if Kupperman testifies.
“That silence suggests the obvious—the President’s directive is not backed by the force of law, and the President could not take any action against Kupperman for simply complying with Congress’s request for testimony,” the House filing states.
The White House on Wednesday held firm that the court overriding Trump’s claimed authority over his past and present aides’ testimony would require an “extraordinary legal justification” that the House has yet to put forward.
“There is simply no basis to suddenly furnish the House with a new tool to wield against the Executive Branch in the ‘Constitution’s entirely anticipated political arm wrestling,’” the Justice Department’s memo states.
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