The Kupperman gambit fails, on to Don McGahn’s appeal on Friday

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A federal judge on Monday dismissed and declared moot (.pdf) a lawsuit by former deputy national security adviser Charles Kupperman, who was seeking a ruling on whether to comply with a subpoena in the House’s impeachment inquiry or a directive from the White House blocking his testimony.

Kupperman and his former boss, former national security adviser John Bolton, were hoping that Judge Richard Leon, a federal judge in the D.C. District Court, would issue a ruling favorable to the Trump administration’s extreme theory of “absolute immunity” from testimony for national security advisers to create a conflicting opinion from the opinion (.pdf) of Leon’s colleague on the D.C. District Court bench, Judge Ketanji Brown Jackson, issued in the Don McGahn case in November.

Her ruling flatly rejected the Trump administration’s extreme theory of “absolute immunity” and ordered “[I]f a duly authorized committee of Congress issues a valid legislative subpoena to a current or former senior-level presidential aide, the law requires the aide to appear as directed, and assert executive privilege as appropriate.”

This ruling has been appealed, but it remains the only decision by a judge testing the Trump administration’s extreme theory of “absolute immunity.” The McGahn Subpoena Case is Set for Jan. 3 Appeals Court Hearing before the D.C. Circuit Court of Appeals.

Sadly, Judge Richard Leon indicated at the end of his opinion that he may have been favorable to the Trump administration’s extreme theory of “absolute immunity” if this was a live controversy, but he was constrained by the rule of law to dismiss this “moot” matter. That appears to be improvident extrajudicial commentary (dicta) speculating on the merits of the case not appropriate nor necessary to a purely procedural decision.

Politico reports, Judge dismisses lawsuit from Bolton deputy regarding Ukraine testimony (excerpt):

Charles Kupperman, who was Bolton’s deputy when Bolton was national security adviser, filed suit in October after he was subpoenaed by the House Intelligence Committee but ordered to ignore the subpoena by President Donald Trump. In his suit, Kupperman asked for a judge’s help to resolve the conflicting demands.

The matter was put before Judge Richard Leon, a federal judge in the D.C. District Court. But before Leon could weigh in, the House withdrew its subpoena for Kupperman’s testimony, declaring it a transparent effort to stonewall the impeachment investigation and mire it in months of legal delays. Both the House and the White House asked Leon to dismiss the case, and Leon ultimately agreed.

“[The Intelligence Committee] has withdrawn Kupperman’s subpoena … As a result, Kupperman no longer faces the ‘irreconcilable commands’ of two coordinate branches of government,” Leon wrote in a 14-page ruling, “and he accordingly lacks any personal stake in the outcome of this dispute. Thus, it would appear that this case is moot and should be dismissed.”

Kupperman had pressed for a ruling despite the subpoena withdrawal, arguing that the House could reissue it at any time or punish him by holding him in contempt of Congress. But Leon cited repeated assurances by the House that it would do no such thing, as well as a guarantee by the Justice Department that it would not prosecute Kupperman for refusing to comply with the subpoena. Leon also noted that the House issued its final impeachment report in December, underscoring its lack of interest in pursuing Kupperman’s testimony.

“The House clearly has no intention of pursuing Kupperman, and his claims are thus moot,” Leon wrote.

To underscore its point, Leon pointed to the articles of impeachment adopted by the House, noting that even in the charge that Trump obstructed Congress’ investigation, the article does not name Kupperman as one of the nine officials whom Trump blocked from testifying. It’s a further indication of what some Democrats noted was an attempt to disentangle the impeachment effort from any ongoing litigation to avoid mixing legal matters with the upcoming Senate trial.

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Leon, who made clear that he was eager to resolve the substance of the dispute, noted that although it’s conceivable the House could change course and pursue Kupperman’s testimony again, the matter would surely end up back in court “seeking a solution to a Constitutional dilemma that has long-standing political consequences: balancing Congress’s 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.”

“A dilemma, I might add, that I particularly appreciate having served on a number of occasions in both the Legislative and Executive branches,” Leon wrote. “Fortunately, however, I need not strike that balance today!”

The decision effectively ends any long-shot chance that the courts would deliver a last minute conflicting opinion favorable to the Trump administration’s extreme theory of “absolute immunity” from testimony for national security advisers.

It’s on to Don McGahn’s appeal this Friday.

Kupperman’s suit was seen as a proxy for John Bolton, who cited its existence as a reason to refrain from speaking publicly about Ukraine matters. He no longer has this suit to hide behind.

Man up and be a patriot Mr. Bolton, refusing to testify to save it for your tell-all book next summer is cowardly and unpatriotic. You are doing yourself no favors by not coming clean.