Former National Security Official Loses Fight Over House Subpoena

WASHINGTON (CN) — Finding in part that the impeachment of President Donald Trump renders the case moot, a federal judge on Monday dismissed a lawsuit over whether a former deputy national security adviser must testify to Congress.

While probing whether to bring articles of impeachment against Trump over claims that he sought to pressure Ukraine to announce investigations into the 2016 presidential election and former Vice President Joe Biden and his son, the House Intelligence Committee in October subpoenaed Charles Kupperman, who served as a top deputy to former National Security Adviser John Bolton.

The U.S. Capitol is seen on the evening of Dec. 18, 2019, after the House voted to impeach President Donald Trump on two charges. (AP Photo/Julio Cortez)

As with other administration officials the House sought to have testify as part of the inquiry, the White House instructed Kupperman to buck the subpoena, arguing he was immune from having to give testimony. Kupperman filed a federal lawsuit after receiving the subpoena, asking a federal judge to weigh in on whether he would need to comply.

The House withdrew its subpoena to Kupperman on Nov. 5, leading attorneys for House Democrats keen on keeping the impeachment drive out of a lengthy court battle to join the Trump administration in claiming the case was moot. Acting White House Chief of Staff Mick Mulvaney briefly tried to join the suit as he faced his own subpoena from the House, but ultimately withdrew his request.

Kupperman fought to keep the case alive, arguing in federal court earlier this month that even though the House had withdrawn the subpoena and issued articles of impeachment that did not mention his name, there were no guarantees that he was in the clear.

At that hearing, lawyers for House Democrats insisted they did not plan on reissuing the subpoena and downplayed the possibility that Kupperman would face negative consequences in the future.

“We have not been on a contempt spree, your honor,” House attorney Todd Tatelman told U.S. District Judge Richard Leon at the Dec. 10 hearing.

The Trump administration also urged dismissal, arguing both that the case was moot and that even if it wasn’t, the suit should be thrown out because Trump’s instruction that Kupperman not testify was valid.

In a 14-page opinion issued Monday, Leon, an appointee of President George W. Bush, sided with House Democrats and the Trump administration and tossed the lawsuit.

Leon found it credible that the House did not plan to reissue the subpoena, noting the articles of impeachment the House approved do not mention Kupperman, even the one that charges Trump with obstructing Congress by not turning over information that would have helped the House determine whether the president held up a White House visit and a nearly $400 million military aid package as leverage for the Ukraine investigations.

“This conduct is of course entirely consistent with the repeated representations that counsel for the House has made to this court,” Leon wrote. “The House clearly has no intention of pursing Kupperman, and his claims are thus moot.”

Leon also found it unlikely that Kupperman would face punishment from an executive branch that instructed him not to comply in the first place.

Kupperman is represented by Charles Cooper, who also represents Bolton. Cooper did not immediately return a request for comment on Leon’s decision.

The ruling comes days before Congress returns to Washington from a holiday recess with the future of a Senate trial to decide whether to remove Trump still unclear.

The House did not send the articles to the Senate before leaving town, as Speaker of the House Nancy Pelosi, D-Calif., has said she needs to see what procedures the Senate will adopt before approving House managers and beginning the trial.

Senate Majority Leader Mitch McConnell, R-Ky., has said he plans to coordinate with the White House on details of trial, including which, if any, witnesses will be called and the process by which it will be resolved.

Senate Democrats, including Minority Leader Chuck Schumer, D-N.Y., have stuck firm to their calls that the Senate should hear from witnesses during the trial. On Monday, Schumer reiterated his demand for specific documents and witnesses that should factor into the Senate trial, including Bolton and Mulvaney.

While Kupperman is not among the officials Democrats have set their sights on, Leon acknowledged his role in the impeachment inquiry might not yet be finished. If the House were to reissue the subpoena, Leon said the case could very likely end up in his courtroom again.

“If so, he will undoubtedly be right back before this court seeking a solution to a constitutional dilemma that has long-standing political consequences: balancing Congress’ well-established power to investigate with a president’s need to have a small group of national security advisors who have some form of immunity from compelled congressional testimony,” Leon wrote. “A dilemma, I might add, that I particularly appreciate having served on a number of occasions in both the legislative and executive branches. Fortunately, however, I need not strike that balance today!”

Neither Pelosi’s office nor the Justice Department immediately returned a request for comment on Leon’s decision.

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