As I discussed in this Just Security piece last week, Charles Kupperman, the former deputy national security advisor in the Trump administration, has brought suit against the House of Representatives, the President of the United States, the Speaker of the House, and three House committee chairs. Ordinarily this constellation of defendants is only seen in nuisance suits filed by pro se plaintiffs who think the government or space aliens are monitoring them through dental fillings, but this is a serious lawsuit brought by the kind of real lawyers (Cooper & Kirk) who take notes and everything.
Kupperman’s suit arose out of a subpoena he received from the House committees to testify in the Ukraine impeachment inquiry. President Trump then directed Kupperman not to appear or testify in response to the House subpoena based on the theory that, as a senior White House advisor, he is absolutely immune from compelled congressional testimony. Kupperman is interpleading the defendants to determine which of the political branches trumps (so to speak) the other. Note: in March I suggested, somewhat casually, that “former [administration] officials might want to consider bringing an action to ask a court to declare whether they should abide by the instructions of the White House or those of the committee.”
Now the House has informed the district court judge (Judge Leon) that it has withdrawn the subpoena and asked him to dismiss the case as moot. The reason for this action, I submit, lies not in the merits of the absolute immunity issue (which, as we have discussed at some length, strongly favor the House), but rather in justiciability issues the House would rather not confront.
The House had previously indicated it intended to move to dismiss the case as nonjusticiable. It certainly has a straightforward argument that the Speech or Debate Clause requires the dismissal of the House defendants. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 507 (1975). However, it is not clear what would happen to the lawsuit if the House defendants alone were dismissed. Arguably the case might go on with only the president as a defendant, which would leave no one to advance the House’s position on the merits. Presumably it was for that reason that the House did not seek to be dismissed as defendants in the Mazars and Deutsche Bank cases, choosing instead to remain in those cases in order to defend the validity of the congressional subpoenas at issue.
Somewhat more puzzlingly, the House did not challenge the standing of President Trump or his companies to challenge the validity of the subpoenas in the Mazars or Deutsche Bank litigation. (So far none of the judges to consider these cases have questioned their justiciability either). Thus, in the House’s view it is apparently proper for a court to consider the merits of a challenge to the validity of a congressional subpoena brought by a third party, even when that third party claims neither a privilege nor a property interest in the documents sought by the subpoena.
Let us alter the facts of the case somewhat and suppose that Mazars itself, as the subpoena recipient, had brought suit, asking the court to determine whether the subpoena was valid. (To make the hypothetical parallel to Kupperman’s, assume that Mazars had been instructed by a third party, such as its private client or a state entity, that compliance with the allegedly invalid subpoena would violate a legal duty). It seems incongruous to maintain that the actual Mazars case is justiciable but the hypothetical one would not be.
Furthermore, the House itself is suing former White House counsel Don McGahn in a case that raises precisely the same absolute immunity issue as Kupperman. In McGahn, the House argues that the case is justiciable, while the Justice Department contends that disputes over information access between the political branches are not appropriate for judicial resolution. DOJ almost certainly would make the same argument in Kupperman’s lawsuit, maintaining that disputes over Kupperman’s testimony should be resolved through the traditional process of negotiation and accommodation. This would leave the House in the awkward position of agreeing with the Justice Department on justiciability, while vigorously arguing against its reasons for reaching that result.
In addition, it is not clear how a “victory” on justiciability would advance the House’s immediate interests. Without a decision on the merits, Kupperman would presumably continue to refuse to appear and testify, at least until higher court(s) have had an opportunity to weigh in. This likely would deprive the House of his testimony within a usable timeframe. Meanwhile, the president’s defenders would claim that the House’s position on justiciability shows (1) the House lacks confidence in the merits of its absolute immunity argument and (2) the House itself bears some responsibility for Kupperman’s failure to testify.
To be sure, the House does have a long-term institutional interest in preventing witnesses from, in effect, seeking to quash congressional subpoenas in federal court. But coming up with a principled basis for distinguishing Kupperman from McGahn and Mazars/Deutsche Bank may be tricky.
By withdrawing the subpoena, the House hopes to avoid the need to navigate this legal minefield. And if it receives a favorable decision on McGahn’s claim of absolute immunity, it will renew its request/demand for testimony from Kupperman (and Kupperman’s former boss, John Bolton, who is also represented by Cooper & Kirk). If they refuse, the House probably would not take further legal action, but at least it would be well-positioned to argue in the impeachment proceedings that the refusal of these witnesses to testify reflects something other than uncertainty about the state of the law.
Somewhat surprisingly, so far Judge Leon does not seem to be buying the House’s gambit. He has refused to dismiss the case as moot, and has ordered the parties to continue the expedited briefing schedule. Paradoxically, this might be good news for the House (if not the House’s overworked legal staff). It seems to me unlikely that Judge Leon would be that eager to retain jurisdiction over the case unless he thinks Kupperman ought to testify.
There are ways the judge could facilitate that result besides issuing a decision on the merits in the House’s favor (which likely would be appealed anyway). First, during oral argument he could ask the Justice Department what it would do if Kupperman were to violate the president’s instructions not to testify. Since the most likely answer to this is “nothing,” the court would thereby demonstrate Kupperman will suffer no injury by testifying, possibly depriving him of any excuse for non-compliance. Second, the judge might just order the parties to engage in that negotiation and accommodation process the Justice Department claims is constitutionally mandated. Allowing Kupperman to be deposed with the participation of a White House lawyer who can raise any specific executive privilege claims seems like the most straightforward solution to the problem.