<a href="https://www.usatoday.com/story/news/politics/2019/10/31/impeachment-court-balance-authority-between-house-president-trump/2496212001/" target="_blank" rel="noopener noreferrer">Impeachment: House and White House agree that neither wants a federal judge to decide whether a witness must testify</a>  <font color="#6f6f6f">USA TODAY</font>

President Donald Trump explains he wasn’t seeing eye-to-eye with ousted hawkish national security adviser John Bolton. The sudden shake-up comes as the president faces pressing decisions on difficult foreign policy issues. (Sept. 11) AP


WASHINGTON – The House of Representatives and President Donald Trump found something to agree on in the impeachment inquiry: Both sides want a federal judge to dismiss a lawsuit from a former deputy national security adviser.

Charles Kupperman, who served as deputy to former National Security Adviser John Bolton, filed a lawsuit Oct. 25 asking the federal courts to decide whether he should testify under subpoena in the inquiry. Kupperman defied a House subpoena on Monday while awaiting the decision because he worried any decision he makes “will inflict grave Constitutional injury on either the House or the President,” as stated in the lawsuit.

But lawyers for the House and the White House each told U.S. District Court Judge Richard Leon they plan to ask him to dismiss the case. Leon held the meeting before either side had even filed written arguments in the case because he is eager to resolve the case quickly.

Todd Tatelman, deputy general counsel for the House, said the lawsuit runs afoul of Supreme Court precedent. Tatelman said Kupperman has two options: not show up to testify, as other White House officials have done, or comply with the subpoena.

“We believe very strongly that the complaint serves no other purpose than to attempt to delay” the impeachment proceedings, Tatelman said. 

Elizabeth Shapiro, a Justice Department official who represents Trump, said she also intends to file a motion to dismiss.

Charles Cooper, Kupperman’s attorney, said his client resorted to the lawsuit “to avoid running the risk of doing the wrong thing.” He said Kupperman is in a “classic catch-22” situation, in which he can’t satisfy both the House and the White House.

“My guy is caught in the middle of it,” Cooper said, adding that Kupperman risks criminal liability if he tries to satisfy either side. But Kupperman is “perfectly prepared to satisfy” whatever the court decides he’s legally required to do, Cooper added.

Leon set deadlines for participants to file arguments and scheduled oral arguments for Dec. 10.

The case is one of several that could ultimately reach the Supreme Court and redefine the relationship between the legislative and executive branches of government. Trump personally filed other cases to prevent House committees from gaining access from his accountants to his tax returns or from his lenders to his loan documents.

The Justice Department has also opposed a District Court ruling that ordered access for the House Judiciary Committee to the grand-jury evidence behind special counsel Robert Mueller’s report on Russian interference in the 2016 election. And the administration continues to fight the panel’s subpoena of former White House counsel Don McGahn, who was described in several episodes of Mueller’s report dealing with Trump possibly obstructing justice.

Kupperman’s 17-page filing says that if he defies Trump, he could hurt the president’s ability to receive confidential advice from top aides. Trump, who called the inquiry a partisan “witch hunt,” vowed to fight all subpoenas. White House counsel Pat Cipollone notified House Speaker Nancy Pelosi, D-Calif., on Oct. 8 that the administration wouldn’t cooperate with inquiry, for lack of a House vote authorizing it. 

But by defying the House subpoena, Kupperman noted that he could impede their constitutional duty to investigate potential impeachment and could be subject to criminal penalties for contempt. Pelosi announced a formal impeachment inquiry Sept. 24 and said no floor vote is needed.

The chairmen of the three key committees investigating Ukraine – Rep. Eliot Engel, D-N.Y, of Foreign Affairs; Rep. Adam Schiff, D-Calif., of Intelligence; and Rep. Carolyn Maloney, D-N.Y., of Oversight – wrote Kupperman a letter Saturday saying his lawsuit was meritless. The chairmen also warned that his defiance of the subpoena could be evidence of contempt.

“Dr. Kupperman’s lawsuit – lacking in legal merit and apparently coordinated with the White House – is an obvious and desperate tactic by the President to delay and obstruct the lawful constitutional functions of Congress and conceal evidence about his conduct from the impeachment inquiry,” the chairmen wrote.

More on the House impeachment inquiry of President Donald Trump:

John Bolton’s ex-deputy Kupperman defies subpoena, doesn’t show up for testimony in Trump impeachment probe

‘Slow-motion constitutional car crash’: Trump, Congress battle over investigations with no end in sight

Donald Trump to Nancy Pelosi: No cooperation in ‘partisan’ impeachment investigation


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