/2020 Elections: Judge Dismisses Lawsuit by Ex-Trump Aide Subpoenaed in Impeachment Inquiry
2020 Elections: Judge Dismisses Lawsuit by Ex-Trump Aide Subpoenaed in Impeachment Inquiry

2020 Elections: Judge Dismisses Lawsuit by Ex-Trump Aide Subpoenaed in Impeachment Inquiry

2020 Elections:

U.S.|Judge Dismisses Lawsuit by Ex-Trump Aide Subpoenaed in Impeachment Inquiry

Judge Richard J. Leon acted after the House dropped its subpoena to Charles Kupperman and mooted the case, which had been closely watched for its implications about whether John Bolton would testify about President Trump’s pressuring Ukraine.

Credit…Erin Schaff/The New York Times

2020 Elections: Charlie Savage

WASHINGTON — A judge on Monday dismissed a high-profile lawsuit by a former national security aide to President Trump who had asked a court to clarify whether he should obey a subpoena from Congress to testify in the impeachment inquiry, or defy it on the White House’s instructions.

In a 14-page opinion, Judge Richard J. Leon, of the United States District Court for the District of Columbia, ruled that the lawsuit by the former presidential aide, Charles M. Kupperman, was moot because House Democrats had subsequently dropped the attempt to subpoena him.

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

The lawsuit by Mr. Kupperman, a former deputy national security adviser to Mr. Trump, had been closely watched because it was seen as a harbinger for whether his former boss, John R. Bolton, might testify about what he knows about Mr. Trump’s use of his official powers to pressure Ukraine into announcing investigations that could benefit him politically.

Mr. Bolton, Mr. Trump’s former national security adviser, has let it be known that he has additional relevant information about the Ukraine affair than other witnesses who defied the White House and testified before the House.

But Mr. Bolton is represented by the same lawyer, Charles J. Cooper, as Mr. Kupperman, and he also made clear that he would not testify unless a court ordered him to comply with a subpoena — suggesting that he would echo Mr. Kupperman and file a lawsuit seeking judicial resolution of the dispute.

The White House, in the administrations of both parties, has argued that top presidential aides are absolutely immune from being forced to testify about their work, meaning they do not even have to show up in response to a congressional subpoena.

Federal District Court judges have twice rejected that constitutional theory — once in a 2008 case involving Harriet E. Miers, the former White House counsel to President George W. Bush, and once this year in a case involving Donald F. McGahn II, a former White House counsel to Mr. Trump.

But district court rulings are not binding precedents, and Mr. Cooper argued that Mr. Kupperman’s — and Mr. Bolton’s — former focus on national security made his situation different from Ms. Miers’s and Mr. McGahn’s, anyway. (The Justice Department has appealed to a federal appeals court the ruling that Mr. McGahn must testify.)

Unlike the Miers and McGahn lawsuits, both of which were brought by the House in an effort to get a judge to order the former executive branch officials to comply with subpoenas, Mr. Kupperman did not wait for Congress to sue him. Instead, he filed a lawsuit against both the House and the White House, asking Judge Leon to tell him which side was right.

But House Democrats decided not to pursue litigation against recalcitrant witnesses in the Ukraine inquiry, seeing the slow pace of the judicial process — including inevitable appeals up to the Supreme Court — as guaranteeing that Mr. Trump could run out the clock before the 2020 election, even though he is accused of trying to rig it by soliciting foreign interference.

Instead, they opted to move forward with approving two articles of impeachment based on the information they had already obtained. And in addition to deciding not to subpoena Mr. Bolton, the House Intelligence Committee dropped its subpoena to Mr. Kupperman.

Mr. Cooper had nevertheless argued that the lawsuit should be kept alive, but Judge Leon ultimately agreed that there was no more dispute for him to resolve because both the Justice Department and the House had told him they would not seek to take adverse action against Mr. Kupperman.

If the House reissues a subpoena to Mr. Kupperman, the judge added, “he will undoubtedly be right back before this court seeking a solution to a constitutional dilemma that has longstanding political consequences: balancing Congress’s well-established power to investigate with a president’s need to have a small group of national security advisers who have some form of immunity from compelled congressional testimony.”

Judge Leon suggested he found that dilemma fascinating, noting that he particularly appreciated it “having served on a number of occasions in both the legislative and executive branches.” But, he wrote, “fortunately,” he did not need to decide how to strike that balance at this moment.

Mr. Cooper did not immediately respond to a request for comment.

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