The House of Representatives assured a federal judge Tuesday that it would not seek to compel the testimony of former National Security Council official Charles Kupperman, even as it prepared for a Senate impeachment trial.
U.S. District Judge Richard Leon asked for the assurance at a hearing in a case brought by Kupperman, who is seeking a court’s guidance on whether he is obligated to comply with a now-withdrawn House subpoena for his testimony or with President Trump’s directive that he not comply with it.
When it was filed, the lawsuit presented the opportunity for a landmark ruling as Trump has mounted unprecedented obstruction to congressional oversight. Beyond the insight Kupperman could likely offer on Trump’s Ukraine gambit, he is also being represented by the same lawyer as former National Security Advisor John Bolton. Bolton has hinted he has some unique information he could share about the Ukraine effort, if he was subpoenaed and if the House won in the Kupperman case.
However, the House withdrew its subpoena of Kupperman after he filed the lawsuit and is moving quickly towards Trump’s impeachment without Kupperman’s or Bolton’s testimony — rendering the lawsuit a zombie case of sorts.
Ahead of Tuesday’s hearing, Leon instructed the parties to focus their arguments on whether the case was now moot with the subpoena withdrawal, and on other questions the court even as the authority to decide the case. Trump, who is also a defendant and is being represented by the Justice Department, joined the House in arguing that the court can just dismiss the lawsuit without deciding it on the merits.
Leon asked House lawyer Todd Tatelman at the hearing to confirm that the House Judiciary Committee would not issue its own subpoena, while noting that the Judiciary Committee was not among the three committees that issued the original subpoena, nor was it a defendant in Kupperman’s lawsuit. After consulting with House General Counsel Doug Letter, Tatelman said that neither the Judiciary Committee nor any other House committee would issue its subpoena of Kupperman.
Weighing in on Kupperman’s claim that he still faced a threat of being held in contempt by Congress, Tatelman stressed the number of steps that would take and that a subpoena would need to be pending against Kupperman in order for the House to do so.
“No future injuries will befall” Kupperman, Tatelman assured the judge.
Kupperman’s lawyer, Chuck Cooper gave — in the words of Tatelman — an “impassioned” plea to the judge about why the case was not moot.
Cooper said that, while he didn’t doubt Letter’s sincerity, “I don’t have the same faith in his client as he does.”
Cooper brought up the various letters the House sent Kupperman threatening contempt if he didn’t testify, though those were all sent before the subpoena was withdrawn. Cooper also brought up the impeachment report the three defendant House committees released last week. The report called out Kupperman by name for his failure to testify, Cooper noted, but did not mention that the subpoena had been withdrawn.
Leon asked Tatelman about that point and about what sounded “like threatening language” in the report.
The report was a “political document” Tatelman said, with a “separate and distinct” purpose than the representations being made in court.
