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Roger Cramton’s Memorandum Surfaces

Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don’t think “I wonder what ever happened with that Roger Cramton memorandum?”). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring that former White House counsel Don McGahn was absolutely immune from having to appear in response to a congressional subpoena.

As we have discussed, OLC’s argument for absolute immunity is based in large part on “precedent” consisting of its own prior statements on the subject. But, as two federal judges have now pointed out, OLC cannot create precedent simply on its own say-so. Last month Judge Ketanji Brown Jackson wrote, in her scathing rejection of McGahn’s claim of immunity, that OLC’s initial theory of absolute immunity set forth in the 1971 Rehnquist memorandum “was seemingly formed out of nothing” and “it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit.” Comm. on the Judiciary, U.S. House of Representatives v. McGahn, No. 19-cv-2379, slip op. at 99, 102 (D.D.C. Nov. 25, 2019); see also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp.2d 53, 86 (D.D.C. 2008) (rejecting OLC’s opinions on absolute immunity as “conclusory and recursive”). Furthermore, as both Judge Jackson and Judge Bates noted, the original justification for immunity set forth in the Rehnquist memorandum would not apply to former White House officials at all. See McGahn, slip op. at 100; Miers, 558 F. Supp.2d at 88 n. 36.

Enter the aforementioned Cramton memorandum of December 21, 1972 to “the Honorable John W. Dean, III,” Counsel to the President. Although OLC cited this memorandum in its opinion on McGahn, it did not make it public at the time, nor did it bother to mention that this memorandum differed in an important respect from the argument that it was making. We know this now because OLC has just posted it on its website. Hat tip: @kpolantz and @EricColumbus.

To wit, the Cramton memorandum concludes that former White House officials should not be entitled to the same absolute immunity as current officials. It states:

We have one caveat with respect to our conclusion. While we believe that an assertion of Executive privilege with respect to specific testimony on the subject of advice given by the former staff member to the President is entirely proper, we have some reservations about the propriety of invoking the privilege to direct the former staff member not to appear at all. This aspect of the Executive privilege has in the past been claimed only for the President and his most intimate, immediate advisers. One of the justifications that has been advanced for an immediate adviser declining to appear is that he is presumptively available to the President 24 hours a day; the necessity to appear before congressional committees therefore could impair that availability. This consideration would obviously not justify a refusal to appear by a former staff member. However, this justification is in our view neither the only nor the best one. An immediate assistant to the President may be said to serve as his alter ego in implementing Presidential policies. On this theory, the same considerations that were persuasive to former President Truman would apply to justify a refusal to appear by such a former staff member, if the scope of his testimony is to be limited to his activities while serving in that capacity.

In conclusion, we believe that an invocation of the privilege with respect to particular testimony by a former staff member on the subject of advice given the President is quite clearly proper; on the other hand, we believe an invocation of the privilege as a basis for refusal to appear at all is a closer question. An intention to invoke the privilege with respect to particular testimony could certainly be announced. This as a practical matter may solve the problem. If, however, the interrogation is expected to extend to non-privileged matters, a decision that the former staff member should not appear at all would not, in our opinion, be justified.

Memorandum of 12-21-1972 at 6-7 (emphasis added).

To be sure, this language does not foreclose a refusal to appear by a former White House official if the testimony is expected to involve only privileged matters (though it suggests this is a “closer question”). If, on the other hand, non-privileged matters are involved, it indicates that such a refusal would not be justified. This position is inconsistent with OLC’s current stance, which is that former officials are absolutely immune from any questioning about their official activities, regardless whether they are privileged. As OLC “explained” in its McGahn opinion, “the concept of immunity is distinct from, and broader than, the question whether executive privilege would protect a witness’s response to any particular question.” 5-20-19 Opinion at 17. Moreover, it asserted that “consistent with our prior precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” Id. at 16. This again is inconsistent with the Cramton memorandum.

Furthermore, the Cramton memorandum implicitly rejects OLC rationales for extending immunity to former officials. If allowing such officials to testify about non-privileged matters will not impair the president’s ability to obtain confidential advice, there is no reason why they should not appear and invoke the privilege on a question by question basis (like every other executive official outside the White House). Moreover, Cramton obviously did not believe that allowing former officials to appear would adversely impact the president’s “autonomy.”

It seems to me that if you are going to rest an argument on ipse dixit, you ought at least to be honest about the ipse.  Maybe the D.C. Circuit will have some questions about this too.

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Impeachment and Disqualification

The proposed articles of impeachment against President Trump call not only for his removal from office, but for his “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” No doubt the drafters of these articles assume such disqualification would prevent Trump from ever again serving as president. Readers of this blog, however, are aware that this is no longer an uncontested proposition (see here, here, here, here, here, here, and, most recently, here for a few of our prior discussions of this issue).

While I am aware that the president’s conviction and removal, much less disqualification, remain unlikely events, if he were to be disqualified it would be extremely important that there be as much clarity as possible on this issue. I have little doubt that should the Senate disqualify Trump from future office, he would not hesitate to seize upon the argument that the presidency does not constitute an “office of honor, trust, or profit under the United States” within the meaning of the Disqualification Clause. Moreover, members of the House who will vote on articles of impeachment and members of the Senate who will presumably vote on conviction and removal, and possibly on disqualification as well, are entitled to know of the existence of this issue.

I therefore propose that before voting on articles of impeachment, the House consider and approve a resolution along the following lines: “Resolved, That in the considered judgment of this House, the Office of President of the United States of America is an Office of honor, Trust or Profit under the United States within the meaning of the Sixth Clause of the Third Section of the First Article of the Constitution of the United States.”

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Historical Practice and the Applicability of the Foreign Emoluments Clause to the President

I want to return briefly to the question  whether the president holds an “Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (FEC). As far as I know, no judge in any of the three emoluments cases has expressed any support for the theory, pressed by Professors Tillman and Blackman in various amicus briefs, that the president does not hold such an office and therefore is not subject to the FEC. Nonetheless, the argument seems to have gained some traction in the legal academy, enough that Judge Rao, during the Mazars oral argument, referred to a dispute or debate among legal scholars on the subject. For that reason, I think it is worth calling attention to a congressional report that I recently came across which is of some relevance to this debate and which (again, as far as I know) has not been previously mentioned in that connection.

As background, you may recall that a key element of the Tillman/Blackman theory is that early presidents accepted gifts from foreign governments that allegedly would have been proscribed by the FEC if that clause applied to the president. The fact that these presidents accepted such gifts without seeking congressional consent, the argument goes, constitutes compelling evidence of the clause’s original meaning.

One might ask, though, why would this be so? Assuming that presidents accepted gifts otherwise proscribed by the FEC, this could reflect (1) lack of awareness of or attentiveness to the FEC; (2) a deliberate decision to ignore the FEC; or (3) a sincere but mistaken view the FEC did not apply to the presidency. It is not obvious why the facts as described by Tillman and Blackman should be given any particular weight in ascertaining the meaning of the FEC. Cf. Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-cv-2379, slip op. at 98 (D.D.C. Nov. 25, 2019) (“It goes without saying that longevity alone does not transform an unsupported notion into law.”). Continue reading “Historical Practice and the Applicability of the Foreign Emoluments Clause to the President”

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Subpoenas, Recalcitrant Witnesses, and the Senate Impeachment Trial

Law Twitter is abuzz (I guess this is a mixed metaphor) about this TPM post by Josh Marshall, who makes the following points regarding an impeachment trial in the Senate: (1) the House will have the opportunity to request subpoenas for any witnesses it wishes, including those who refused to appear during the House proceedings (e.g., Giuliani, Mulvaney, Bolton); (2) the chief justice will likely make a ruling on these requests in the first instance (the Senate could  overrule him, but probably would not); and (3) the courts will not interfere with these subpoenas because the trial of impeachment is solely a matter for the Senate. See Nixon v. United States, 506 U.S. 224 (1993). He therefore posits that the House will have a much better chance of forcing reluctant witnesses to testify in the trial than it has had in the course of its own impeachment inquiry.

I will assume that points 1 and 2 are correct, though it remains to be seen whether the Senate will restrict witnesses up front and whether the chief justice will choose to rule on motions in the first instance or simply refer them to the Senate. But what happens if the House requests that certain witnesses be subpoenaed and these requests are granted by the chief justice and/or the Senate?

As a practical matter, there will be tremendous pressure on the witnesses to comply. It is one thing to defy the authority of the House with the backing of executive branch lawyers who maintain, however implausibly, that the impeachment inquiry is illegitimate and unconstitutional.  It is quite another to defy a subpoena signed by the chief justice of the United States pursuant to the Senate’s unquestionable constitutional authority to conduct an impeachment trial of the president. It will be particularly difficult for a private citizen like Giuliani, who does not even have the veneer of “absolute immunity” or some other constitutionally based privilege, to justify a refusal to appear. But even a witness who asserts such a privilege would have to consider carefully the possibility of future prosecution for contempt of Congress or other potential consequences (Mulvaney, Bolton and Giuliani are all lawyers, for example, who could be subject to professional discipline).

If, however, a witness chooses to defy the subpoena, matters get more complicated. The fact that the Senate has exclusive jurisdiction over the conduct of an impeachment trial does not, in itself, answer the question of how to force a recalcitrant witness to obey its commands.

Here it is important to distinguish between two distinct powers that the Senate could exercise. The most frequently discussed is the contempt power, which we have been reviewing at some length. But the Senate also has the power to issue a warrant of attachment, which directs the Sergeant at Arms to arrest an individual and bring him before the bar of the Senate to be interrogated. See Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-20 (1929) (holding that the Senate could use an arrest warrant to bring before it a witness in an elections case); McGrain v. Daugherty, 273 U.S. 135, 158 (1927) (approving the same procedure in a legislative oversight investigation). The arrest warrant serves as an alternative for witnesses who cannot be relied upon to comply with a subpoena.

If the Senate is willing to employ such process, it seems to me extremely likely that it will be effective. I do not expect that the witnesses in question would  attempt to flee or physically resist the Sergeant at Arms. I certainly would not expect the executive branch to offer physical protection against execution of a warrant signed by the chief justice. Of course, if I am wrong about this, we would be in a true constitutional crisis.

More plausibly, the witnesses could attempt to challenge their arrest through a habeas proceeding. For example, Mulvaney, Bolton or other current or former senior White House advisors could argue that they are absolutely immune from congressional process, even in the context of an impeachment proceeding. I believe that this argument would have a near zero chance of success. In addition to the infirmities of the absolute immunity position which we have previously discussed, the Senate would have a strong argument that the courts lack jurisdiction even to consider the merits of the issue given its exclusive authority over impeachment. And leaving all that aside, it is difficult to imagine a federal district judge interfering with an arrest warrant signed by the chief justice.

The arrest warrant, however, only ensures that the witness’s physical appearance before the Senate. It does not address what happens if the witness still refuses to answer questions or produce documents. In that case, the Senate would have to employ the contempt power in order to force the witness to comply. This would impose substantially greater costs on the Senate. For one thing, it would have to interrupt the impeachment trial to conduct a collateral proceeding in which the witness would be asked to show cause why he should not be held in contempt. For another, if the witness is adjudged guilty of contempt, the Sergeant at Arms would have to keep him in custody until he agrees to testify (or the impeachment trial concludes). There would also be a greater risk of judicial interference if a witness is held for a substantial period of time.

In all likelihood, though, it will not be necessary for the Senate to take things that far. If the Senate subpoenas witnesses requested by the House and indicates that it is serious about enforcement (whether by way of criminal referral or otherwise), I expect those witnesses to appear and answer questions (though there may be some assertions of executive privilege).

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D.C. Circuit Panel Issues Expedited Briefing Schedule for In re Application of the Committee on the Judiciary

Late yesterday the DC Circuit panel hearing In re: Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials issued a scheduling order for briefing on the merits. The expedited schedule evidently reflects the compromise that the three judges came up with after yesterday’s argument. The merits will be heard by the same panel (Rogers, Griffith and Rao) which heard the stay application and an administrative stay will remain in place during that time.

The schedule is as follows:

DOJ brief to be filed on December 2, 2019

House brief to be filed on December 16, 2019

DOJ reply brief to be filed on December 23, 2019

Oral argument is on January 3, 2020 at 9:30 am.

Note that the oral argument will take place two and a half hours before the start of the second session of the 116th Congress. Not sure what that means, but I thought it was interesting.

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Oral Argument: In Re Application of the Committee on the Judiciary

The D.C. Circuit panel (Rogers, Griffith and Rao) heard arguments this morning on whether to stay Chief Judge Howell’s order granting the House Judiciary Committee access to certain grand jury material related to the Mueller report. The three issues discussed were (1) whether the district court erred in holding that impeachment was a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e); (2) whether the committee had made an adequate showing of particularized need with respect to the materials in question; and (3) whether there would be irreparable harm from disclosing the material to the committee. It is hard to say what the panel is likely to do, though my guess is that it will probably not deny a stay outright.

On the first issue, Judge Griffith seemed to believe that existing D.C. Circuit precedent establishes that impeachment is a judicial proceeding within the meaning of Rule 6(e), and that only the en banc court would be able to revisit that issue. Although Griffith did not tip his hand as to whether he would ultimately side with the House on the merits of that issue, I did not hear anything in the argument to suggest he had changed his mind on existing precedent. Given that Judge Rogers was clearly sympathetic to the House’s position, this suggests that a majority of the panel is unlikely to grant a stay based on this argument.

Judge Rao questioned whether any court involvement in impeachment would run afoul of Supreme Court precedent that impeachment is solely a question for the Congress. Her theory seemed to be that this precedent prohibited the courts from even assisting the House or Senate in obtaining information for impeachment purposes. Although Judge Griffith expressed some interest in this theory, I think House Counsel Doug Letter did a nice job at the opening of his argument in shooting it down. In any event, I assume that Griffith would view that also as something that would have to be addressed by the en banc court.

The second issue appeared to be stronger for the Justice Department. All three judges had some concerns about whether the district court had adequately determined whether the committee had a particularized need for each piece of grand jury evidence that the court had ordered released. While there was not a clear consensus on how the court should go about that task, it appeared that there was enough uncertainty about it that the court would be reluctant to let the district court’s ruling proceed without further scrutiny.

The Justice Department lawyer, Mark Freeman, also seemed to make some headway on the third issue. While Griffith initially expressed some skepticism that there would be any irreparable harm in allowing the committee to gain access to the grand jury material, Freeman argued that once the material was disclosed, it would be impossible for the courts to enforce any restrictions on what the committee did with it (Letter more or less conceded that this was the case).

Although it is possible that the panel will simply deny the stay, my impression is that this is less likely. Instead, it will probably either grant the stay pending a decision on the merits (which would be heard by a different panel) or itself immediately proceed to address the merits, which would obviate the need for a stay. (The latter possibility was suggested by Letter). If the panel itself reaches the merits, my guess is that it will either affirm Chief Judge Howell’s ruling or remand for more specific findings with regard to the committee’s need for the information in question.

One final possibility was raised by Judge Griffith. He suggested that the problem with regard to controlling further dissemination of the grand jury material could be addressed by limiting access to “counsel” (by which he meant lawyers in the House Counsel’s office). Letter agreed with this suggestion but noted that it would have to include committee counsel as well, as they are the ones with the relevant substantive knowledge regarding what material is relevant to the impeachment inquiry.

This is of course exactly the Freeh-LaBella procedure that I suggested seven months ago (see here and here). Allowing access to a limited number of congressional counsel, who will fully understand that any further disclosure without the court’s permission will subject them to serious sanctions, allows the committee to identify any information for which it has a particularized need without jeopardizing the confidentiality of the information. This approach makes the most sense, which is why it probably won’t happen. But kudos to Judge Griffith, the former senate legal counsel, for proposing a solution that would actually meet the legitimate needs of all three branches.

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Judge Leon’s Ruling in the Kupperman Case Could be Important Even if it Does not Reach the Merits

The lawsuit brought by former deputy national security advisor Charles Kupperman continues, for the moment, despite the House’s withdrawal of its subpoena. Most likely, Judge Leon will end up dismissing the case as nonjusticiable on one ground or another. However, it could matter a good deal which ground(s) the court relies upon.

If the case is dismissed as moot due to the withdrawal of the subpoena, it would be of little consequence. On the other hand, if the court were to base its dismissal on the president’s lack of authority to direct Kupperman not to appear in response to the subpoena, its ruling is potentially of much greater significance. As Jonathan Shaub has noted in connection with the House’s lawsuit against former White House counsel Don McGahn, a judicial ruling that the president lacks authority to direct former officials how to respond to congressional subpoenas might be more important than a ruling on the merits of the absolute immunity issue. While the latter would affect only the relatively small group of senior White House advisors who allegedly are protected by absolute immunity, the former “could be far-reaching, encompassing all disputes involving former officials whether they are grounded in immunity or executive privilege.”

Kupperman’s complaint alleges that he “has a duty to abide by a lawful constitutional assertion of immunity by the President and a lawful instruction by the President that he decline to testify before Congress concerning his official duties as a close advisor to the President.” Complaint ¶ 41. Note that this arguably constitutes two distinct assertions. At one level, it is an assertion that if the claimed immunity exists, it belongs to the president, not to the subordinate official, and therefore Kupperman cannot or should not waive it contrary to the president’s instruction. This makes sense to me. Since the immunity (if it exists) is designed to protect the presidency, it should be the president’s decision whether to assert or waive it.

Of course, as Eric Columbus has pointed out, former officials not infrequently choose to disclose confidential information regarding their government service in medial interviews or tell-all books. Indeed, former national security advisor John Bolton, who is currently declining to testify before Congress based on the president’s assertion of “absolute immunity,” has a book deal in which he will presumably discuss many of the matters allegedly covered by that immunity. (As one Twitter wag put it, absolute immunity is a monarchical doctrine so naturally it has a “royalty exception.” Ok, that wag was me.). While there is a tension between this fact and the non-waiver principle, in my view it simply illustrates that the executive branch has no means of punishing former officials who violate a duty not to disclose non-classified information (about which more below).

Kupperman also appears to be making a second and stronger assertion. He seems to be claiming that a former official has a duty to obey the president’s instruction, regardless of whether the former official agrees with the president’s legal position. As Shaub points out, though, it is not clear where the president gets the authority to direct a private citizen’s response to a congressional subpoena. OLC’s past pronouncements suggest it believes the president has this authority, but it fails to “offer any constitutional analysis to support that conclusion.” (Shaub, this might be a good place to note, is a former OLC lawyer).

If Judge Leon were to conclude the president lacks authority to direct Kupperman’s response to the subpoena, he could dismiss the case without reaching the merits. Kupperman claims to be facing “irreconcilable commands” from the executive and legislative branches, but if he is not bound to obey the president’s command, the alleged conflict disappears and can provide no basis for him to sue. He then would be in a posture no different than any other congressional witness who asserts a potentially valid privilege. He can choose to assert absolute immunity if he wishes and, when the committee (properly) rejects that assertion, he can decide whether to comply or risk the possibility of a contempt proceeding. There is no reason why he, any more than any other congressional witness in this situation, should be entitled to an advance court ruling to forestall contempt.

A somewhat narrower approach the court might take is to side step the question of legal duty entirely. Instead, the court might ask what injury Kupperman would suffer should he choose to ignore the president’s directive not to testify. Kupperman alleges that “an erroneous judgment to appear and testify in obedience to the House Defendants’ subpoena would unlawfully impair the President in the exercise of his core national security responsibilities,” Complaint ¶ 2, but it is hard to see how this constitutes an injury to Kupperman. As suggested earlier, there do not appear to be any practical repercussions to a former official who reveals confidential but non-classified information, whether before Congress or in a tell-all book. In the absence of any adverse consequence Kupperman will suffer as a result of disregarding the president’s order, it would seem he lacks standing to sue regardless of whether the president has the authority to issue the order.

Even if Kupperman has a legal duty to assert absolute immunity when instructed to do so by the president, it does not follow that he is obligated to go into contempt to protect the president’s privilege. For example, a lawyer who is subpoenaed by a congressional committee to provide privileged information of a current or former client is obligated to assert the privilege if her client so instructs, but she is not obligated to go into contempt in order to fulfill her professional obligations. See D.C. Bar Ethics Opinion 288 (Feb. 1999). There is no reason why a former government official should be required to do more when instructed by the president; after all, the president has ample other tools, including filing his own lawsuit, to protect whatever confidentiality interests are at issue.

In short, a non-merits dismissal of Kupperman v. House could still have a significant (and beneficial) effect on the House’s ability to get information in the current impeachment inquiry and/or in future information disputes between the political branches.

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Congress in Court: Where Things Stand Today

Charlie Savage of the NY Times wrote an article over the summer which flagged the sheer volume of litigation in which the House has been involved this year. His count at the time was nine separate lawsuits in which the House was a party, plus four others in which it had filed amicus briefs. The cases in which the House is a party include three suits initiated by President Trump in his personal capacity to block Congress’s access to his financial records (Mazars, Deutsche Bank, and the effort to stop New York state authorities from providing his tax records to House committees), three initiated by the House to obtain information (the suit to require the Treasury Department to produce Trump’s tax records, the application for access to grand jury material, and the action to force Don McGahn to testify), plus the House’s effort to enjoin the border wall and its attempt to intervene in support of the constitutionality of the female genital mutilation statute.  The ninth, I think, would be the litigation over the Affordable Care Act. (I haven’t kept track of the cases in which the House has appeared as an amicus, but one was the census litigation).

Now the House is party to at least one more case (Kupperman), and it appears that Mick Mulvaney, his motion to intervene in the Kupperman case having been withdrawn, will be filing his own separate suit, which will bring the grand total of cases in which the House is a party to 11. In addition, there are several other ongoing cases that could affect the House’s institutional interests, including Blumenthal v. Trump, where members of Congress are suing the president for alleged violations of the emoluments clauses.

One of these cases has already produced a significant appellate court decision  (Mazars) and there are likely to be a number of important decisions coming out of the district and appellate courts in the next couple of months. The Supreme Court will be asked to weigh in and it seems very likely it will agree to hear at least one of these cases, if for no other reason than to decide questions of legislative standing. In the meantime, the House has decided, probably wisely, that further litigation is pointless in light of its determination to conclude impeachment proceedings in the near future (presumably by the end of the year).

We are therefore entering into a period in which there will be (1) a highly unusual amount of judicial precedent generated with potentially enormous impact on the balance of congressional and executive power and (2) an extremely difficult to predict interaction between these judicial opinions and ongoing impeachment proceedings (possibly including, if President Trump’s past statements are credited, an effort to directly challenge these proceedings in court). We cannot rule out the possibility that the chief justice of the United States will  be presiding over an impeachment trial in the Senate while the Supreme Court is being asked to consider directly or indirectly related issues at the same time.

In addition to all this, the very fact that Congress and the executive have taken so many of their disputes to court could itself have major effects on how our constitutional system functions in the future. As former House deputy general counsel Charlie Tiefer told Savage, “this is like nothing else in history.” It is probably not too early to start thinking about the consequences.

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Why Mulvaney’s Attempt to Intervene in Kupperman’s Lawsuit is Bad for the White House

White House chief of staff Mick Mulvaney has filed this motion to intervene in the lawsuit brought by Charles Kupperman, just as the House is trying to moot the case by withdrawing its subpoena to Kupperman. Like Kupperman, Mulvaney has been subpoenaed by the House to give testimony in the impeachment inquiry and has been directed by the president not to testify based on absolute immunity. Unlike Kupperman, Mulvaney still works in the administration. Also unlike Kupperman, who is suing both the House and President Trump and purports to be neutral on the merits, Mulvaney is only suing the House defendants and appears to be supporting the president’s legal position on the merits.

Mulvaney argues that he should be permitted to intervene because a ruling that Kupperman is obligated to comply with his congressional subpoena could adversely affect Mulvaney, apparently by encouraging the House to move forward with some sort of action against him. Somewhat inconsistently, Mulvaney also argues that his interests will not be adequately represented by Kupperman because his situation is legally distinguishable– he “is both a closer and a more senior adviser to the President than was Mr. Kupperman.” Be that as it may, Judge Leon has scheduled a hearing tomorrow to discuss Mulvaney’s motion, and I guess we will know soon enough whether the motion to intervene will be granted.

The more interesting question is why Mulvaney is taking this action. Some suggest that this gambit is part of a White House strategy to undercut the House’s argument on uncooperative witnesses. The House has been arguing that those who fail to cooperate with its investigation are guilty of obstruction and that when the president directs a witness not to appear or testify one can reasonably make the inference that the testimony of that witness would be adverse to the president’s interests. The president’s defenders can respond that witnesses like Kupperman and Mulvaney are not acting lawlessly but seeking a judicial resolution of conflicting instructions from the political branches; they can also point to the House’s position in the Kupperman case as evidence the House is attempting to avoid a decision on the merits of its legal position.

I do not doubt these arguments will be made (indeed, I suggested as much in my last post), but I am skeptical that this is what motivated either Kupperman or Mulvaney. To begin with, there is little evidence to suggest the White House has a “strategy” for responding to the impeachment inquiry beyond its initial declaration that the inquiry is invalid and no one should cooperate with it. The fecklessness of that strategy is what has impelled individual witnesses to chart their own path on the advice of private counsel.

It also seems to me unlikely Kupperman and John Bolton (who share a lawyer and a legal strategy) are coordinating their actions with anyone else. In a letter to the House (which was also filed with the court) on Friday, their lawyer, Chuck Cooper, specifically denied that Kupperman’s “lawsuit [has] been coordinated in any way with the White House.” I see no reason to question the accuracy of this representation.

In the same letter Cooper responded to the House’s argument that his clients should follow whatever legal ruling emerges from the lawsuit against former White House counsel Don McGahn with the following remarkable paragraph:

Here, unlike McGahn, information concerning national security and foreign affairs is at the heart of the Committees’ impeachment inquiry, and it is difficult to imagine any question that the Committees might put to Dr. Kupperman that would not implicate these sensitive areas. After all, Dr. Kupperman was the Deputy National Security Advisor to the President throughout the period [of] your inquiry. The same is true, of course, of Ambassador Bolton, who was the National Security Advisor to the President, and who was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies so far.

(emphasis added).

At the risk of stating the obvious, if your objective is to keep your clients from having to testify, emphasizing how much important knowledge they have is a funny way to go about it. Cooper could easily have said something like: “As you have wisely recognized by backing off the subpoenas to my clients, they have nothing to add that would be more than cumulative  of other witnesses or that would advance your impeachment inquiry.” That is what you would say if the goal is to get your clients out of testifying and/or to advance the White House narrative. Instead, Cooper’s message to the House seems to be: “my client(s) have important information which they would like to share with you and you will want to hear so you should let us proceed with this lawsuit.” The message was clear enough that even the president seems to have understood it.

Of course, it is theoretically possible that Mulvaney’s attempt to intervene is designed to further a White House plan to which Kupperman/Bolton are not parties. This would seem rather risky, though, as it could quickly expose rifts between Cooper’s clients and the White House. Moreover, it is hard to see why Mulvaney needs to intervene in order for the White House to get rhetorical mileage out of the case. If it is dismissed as nonjusticiable (or, less likely, Judge Leon rules on the merits in favor of the president), the White House can score the same political points regardless of whether Mulvaney is a party. From the White House’s perspective, therefore, Mulvaney’s move has some potential downside and little if any upside.

Furthermore, although Mulvaney is avoiding the optics of actually suing the president, his legal position is in fact adverse to the president’s on the issue of justiciability. The Justice Department has already indicated that it will take the position that Kupperman’s suit is nonjusticiable, consistent with its position in the McGahn case. It cannot be helpful from the Justice Department’s perspective to have the president’s current chief of staff contradicting it on this key legal issue.

Finally, if Mulvaney were pulling a political stunt, he would have hired tv lawyers (you know the kind I mean). Instead, he is represented by Bill Pittard, another real lawyer and the former deputy general counsel to the House. The sort of attorney you would retain if you wanted to keep a channel of communication open to the House Counsel’s office.

My guess, therefore, is that Mulvaney’s primary if not sole objective is to protect his own personal legal interests. By joining (or attempting to join) Kupperman, Bolton and McGahn, he is hoping for a kind of herd immunity from potential contempt or other prosecutions stemming from his defiance of the congressional subpoena. That also means that if they testify, he will probably use that as political cover to testify as well.

This does not strike me as good news for the White House.

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Why the House Withdrew the Kupperman Subpoena

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.