Judge Hears Final Arguments in Case Over Impeachment Subpoenas

WASHINGTON — A federal judge Tuesday heard final arguments in a case brought by Charles Kupperman, President Donald Trump’s former deputy national security adviser, who asked for clarity from a federal court about whether he must testify to Congress amid a constitutional clash between House investigators and the White House.

During the impeachment inquiry into Trump, Kupperman’s case became a highly anticipated test of the extent of congressional oversight, and the power House Democrats have to compel senior-level White House officials to testify despite Trump’s orders not to. The decision in Kupperman’s case was expected to have implications for other witnesses House Democrats had hoped to call, such as John Bolton, the former national security adviser.

But as House Democrats have raced ahead, unveiling articles of impeachment Tuesday, they lost interest in litigating Kupperman’s case and asked the judge to dismiss it, leaving open the question of what relevance to the proceedings any decision may now have, or whether there is even still a dispute to settle.

Kupperman maintains that there is. He was subpoenaed Oct. 25 by House Democrats, but did not show up to testify after the president invoked “constitutional immunity,” directing aides to ignore congressional subpoenas. On the same day as the subpoena, Kupperman’s lawyers filed a lawsuit asking a judge to settle the question of whether the executive branch could order him to ignore the demands placed upon him by Congress.

Nearly two weeks after the subpoena was issued, House Democrats announced it had been withdrawn, and House lawyers requested that Kupperman’s lawsuit be dismissed in the interest of avoiding delays in the impeachment process. Instead, Democrats have made the White House’s blocking of witnesses part of an article of impeachment, though Kupperman was not named among the nine current and former White House officials described in the document as having defied subpoenas at the president’s behest.

Yet Charles Cooper, a lawyer representing Kupperman, argued that Kupperman remained in jeopardy of being subpoenaed again or held in contempt later if the case was not resolved. He described Kupperman as torn between “mutually irreconcilable commands” coming from two coequal branches of government, which could still leave him forced to choose between violating his oath of office as a former White House official or being held in contempt by Congress.

Judge Richard J. Leon, who did not rule Tuesday but indicated that he wanted to do so quickly, seemed sympathetic to House lawyers’ assurances that the Democratic leadership had no interest in pursuing Kupperman’s testimony.

But Cooper, who also represents Bolton, pointed to reports from the House Intelligence Committee that seemed to at least leave open the possibility. In particular, he cited a report released last week that does mention Kupperman by name, and stated that “there remain unanswered questions, and our investigation must continue, even as we transmit our report to the Judiciary Committee.”

Democrats are already engaged in parallel lawsuits testing the question of whether top White House aides are immune from congressional subpoenas. In November, a federal judge rejected the Trump administration’s claim that Donald McGahn, the former White House counsel, could not be compelled to testify. The decision is expected to be appealed.

But even if McGahn is ultimately forced to appear before Congress, the decision may not resolve some of the larger questions put forward in Kupperman’s case about the extent to which White House aides must comply with congressional subpoenas or testify about their official duties. McGahn’s subpoena was issued months before House investigators officially began their impeachment inquiry, and some legal experts believe that congressional power to compel officials to testify is stronger under constitutionally enshrined duties such as impeachment.

“When McGahn was subpoenaed, it wasn’t in the context of an impeachment,” said M. Tia Johnson, a professor at Georgetown Law. “Courts have consistently said that when the House is exercising its constitutional authority of impeachment that gives Congress the highest degree of power.”