Acting White House chief of staff Mick Mulvaney bailed on his effort to get court guidance on whether he is obligated to comply with a subpoena issued in the House impeachment probe after President Trump directed him not to do so.
Mulvaney had first tried to intervene in a lawsuit brought by another White House aide who had been subpoenaed by the House. A judge appeared ready to reject that request, and it appeared that Mulvaney would file his own lawsuit instead, until that plan was also abandoned on Tuesday morning.
The other aide, Charles Kupperman, had opposed Mulvaney’s request to join his lawsuit. Kupperman said the appropriate route for Mulvaney would be to file a separate lawsuit that would be treated as a related case and thus be put in front of the same judge, expediting the process for litigating it.
U.S. District Judge Richard Leon appeared ready to clear that path for Mulvaney and even scheduled a hearing for Tuesday afternoon to deal with the procedural mechanics of doing so. Leon canceled the hearing after Mulvaney said that he was not going to file his own lawsuit.
“After further consideration, Mr. Mulvaney does not intend to pursue litigation regarding the deposition subpoena issued to him by the U.S. House of Representatives,” Mulvaney said in his Tuesday notice to the judge. “Rather, he will rely on the direction of the President, as supported by an opinion of the Office of Legal Counsel of the U.S. Department of Justice, in not appearing for the relevant deposition.”
Leon has appeared very eager to move forward along with the case since Kupperman filed it last month. He has held on to the expedited briefing schedule that will have him hearing oral arguments on Dec. 10. At a Monday teleconference with the parties, said those plans “will not, and I repeat, will not be moved under any circumstances.”
Kupperman, a former National Security Council official, had been subpoenaed by the House committees leading the impeachment probe. Kupperman is asking the court to weigh in on whether that subpoena was enforceable, or if he has so-called absolute immunity from testifying, as the White House has claimed in directing him not to show for his deposition.
The House last week withdrew its subpoena of Kupperman, and argued that the case should be dropped — or at the very least, slowed down to a standard pace of briefing.
The judge disagreed and said only Kupperman could ask for the lawsuit to be voluntarily dismissed. The House will still be able to argue that the lawsuit is now moot as part of the current briefing schedule.
Kupperman’s lawyer, who is also representing Kupperman’s former boss, ex-National Security Advisor John Bolton, has said that Kupperman has no dog in the fight between the House and the White House. (Mulvaney, meanwhile, before he dropped his lawsuit plans, positioned his legal effort against the House of Representatives alone.) Bolton has not yet been subpoenaed, but his lawyer has dropped hints that he has information that would be useful to the committee, if a court rules that a House subpoena trumps a White House claim of absolute immunity.
The lawyer said tantalizingly in a letter to the House last week that Bolton “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 thus far.”