Judge dismisses lawsuit from Bolton deputy regarding Ukraine testimony

By Kyle Cheney

A federal judge on Monday scrapped an effort by a former top aide to John Bolton to determine whether he could be required to testify before House impeachment investigators, declaring the matter moot and outside the court’s power to resolve.

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“[The Intelligence Committee] has withdrawn Kupperman’s subpoena ...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.

The decision effectively ends any long-shot chance that the courts would deliver a last minute directive for Kupperman to provide testimony to the House’s ongoing inquiry. Witnesses described Kupperman as a central witness to events surrounding allegations that Trump pressured Ukraine’s government to investigate his Democratic rivals, allegedly by withholding military assistance and a White House visit from Ukraine’s newly elected president.

Kupperman’s suit was also seen as a proxy for Bolton, who cited its existence as a reason to refrain from speaking publicly about Ukraine matters, even though witnesses also described him as a high-level witness to Trump’s conduct.

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!”