Judge mulls dismissing ex-Trump aide’s suit over withdrawn House subpoena

A former national security official is fighting to keep alive a legal battle over a subpoena in the House impeachment probe of President Donald Trump, but the federal judge assigned to the suit seems to be leaning in favor of dismissing the case on the grounds that the House has dropped the demand for testimony.

After an hour-long hearing Tuesday, U.S. District Court Judge Richard Leon issued no immediate ruling, but sounded skeptical about efforts by lawyers for Charles Kupperman, a former deputy national security adviser, to press on with the suit to seek a ruling on whether Trump’s claim of absolute immunity for his aides was legally sound.

Leon also made clear during the session that he’d interpreted the House’s moves in the case as a deliberate effort to prevent him, personally, from ruling on the merits of the dispute. The George W. Bush appointee did not elaborate on why the House would have sought to sideline him, but the House won a victory last month from another federal judge considering a suit a House panel filed to force testimony from former Trump White House counsel Don McGahn.

Justice Department lawyers are appealing that decision, issued by U.S. District Court Judge Ketanji Brown Jackson, a Barack Obama appointee. House attorneys likely prefer to defend Jackson’s favorable ruling rather than face the possibility of losing in front of Leon and having to address dueling rulings on similar issues.

At Tuesday’s hearing, House Deputy General Counsel Todd Tatelman insisted that the withdrawal of the subpoena, coupled with vows not to reissue it, mooted the case before Leon.

“There’s no reasonable expectation here for Dr. Kupperman to be concerned,” Tatelman said.

Near the outset of the session, Leon asked whether the assurance that the subpoena will not be reissued to Kupperman was limited to the three committees involved in issuing it in October, or also extended to the House Judiciary Committee, which is set to mark up articles of impeachment against Trump starting Wednesday night.

Leon speculated that House impeachment managers might decide they want some testimony from Kupperman that would bolster their case. The judge did not seem to be addressing the possibility of actually calling Kupperman as a witness at a Senate trial on impeachment articles the House may approve as soon as next week.

After consulting with House Counsel Doug Letter, Tatelman said the assurance included the House Judiciary Committee, as well as any others involved in the impeachment probe.

“The case is now currently moot. The relief that Mr. Kupperman has sought has now been completely granted with the subpoena being withdrawn,” Tatelman said.

During a discussion on the House’s power of “inherent contempt,” which includes the power to detain recalcitrant witnesses, Leon mused about how realistic that possibility is, noting that it hasn’t been used in almost a century.

“Still have the jail in the basement?” the judge asked.

“We like to keep up appearances that we have a jail in the basement, so I won’t say anything to disabuse people of that notion,” Tatelman replied with a chuckle.

Kupperman’s attorneys argued that he faces a real possibility of a fine for contempt, something various Democratic lawmakers raised publicly in general terms earlier this year as a way of going after reluctant witnesses, but Tatelman said that sort of action by the House was also was fleetingly remote.
“It has never done so in the history of the United States,” he said.

Tatelman also said the House’s few contempt efforts have been directed to officials senior to Kupperman. “We haven’t been on a contempt spree, here,” the attorney said. He also said he wasn’t aware of Congress dropping a subpoena for a witness, then targeting them for contempt.

That prompted Leon to note that he’s taught congressional investigation law at Georgetown for nearly a quarter-century and couldn’t recall that ever happening.

“It’s a hard one to conjure,” the judge said.

Trump is also named as a defendant in Kupperman’s suit, which brought Justice Department attorneys into the case. They are also urging Leon to throw the case out without delving into the merits of the immunity arguments.

“I actually don’t have much to add to the House’s presentation, which I can report to the court is not a statement that I have ever made before,” Deputy Assistant Attorney General James Burnham said.

Burnham said that in light of an Office of Legal Counsel opinion upholding Trump’s immunity claim, it was entirely impossible that Kupperman would ever be criminally prosecuted for contempt of Congress. “That’s never going to happen,” Burnham said. “It could never happen.”

When Burnham offered to have another Justice Department lawyer come to the lectern to explain why Trump couldn’t be viably sued, Leon said it wasn’t necessary.

Kupperman’s lawyer, Chuck Cooper, said the House and Justice Department needed to convince the court the case was moot and they hadn’t foreclosed the possibility that his client could still be in jeopardy. Cooper proceeded to list various threats lawmakers had made about possible consequences for not complying with subpoenas.

“A contempt proceeding is a very real possibility given the repeated threats by the House,” Cooper said.

Cooper also noted that all Kupperman and Leon had to assure themselves that the subpoenas wouldn’t be reissued were the “naked statements” of House lawyers.

However, Leon suggested he couldn’t envision why the House would suddenly want to get the case back into court by reversing itself.

“I’m going to hold them to that,” the judge said. “They’ll be right back here in this courtroom.”

Leon did acknowledge that what politicians say can change. “The whims of political fortune tend to shift quickly,” he said.

The judge also signaled that he believes House leaders have made a strategic decision to try to shut down the litigation in front of him, even by making unusual forward-looking pledges not to come after Kupperman again.

“I don’t think they’re in a hurry to have this court, this particular court, address the merits of this case,” Leon said. “I don’t think they want that.”

During the argument session, Leon acknowledged complaints that he’s slow-walked the case, filed Oct. 25. Some observers noted that the pace of the case lagged the House’s aggressive schedule for impeachment proceedings, all but guaranteeing that the impeachment process would come to a head in the House before any ruling on Kupperman’s case.

However, the judge said he thought the timetable for legal briefs had been a quick one. He said he would “endeavor” to issue a ruling by the end of the year.