The Kupperman case

Dr. Kupperman is a private citizen.  He was briefly the National Security Adviser, after John Bolton was abruptly fired.  He has been subpoened to appear at the impeachment inquiry on Monday.  His testimony is important to the Ukraine scandal.  He has been notified by the White House that he should not testify, because he has “Constitutional Immunity,”  the impeachment inquiry is illegal and  his testimony could harm the national security.    His attorney has filed in Federal court, stating that he is unable to comply with both the subpoena and the request from the White House, not to testify.   I guess he has the option of appearing and refusing to answer the questions.

Adam Schiff has responded as follows (Politico):

Democrats, though, cited Howell’s ruling in a Saturday letter to Kupperman blasting his decision to turn to the courts, which they claimed was done in coordination with the White House.

“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,” wrote Reps. Adam Schiff, Eliot Engel and Carolyn Maloney, the three chairs leading the impeachment inquiry.

“Notwithstanding this attempted obstruction, the duly authorized subpoena remains in full force and Dr. Kupperman remains legally obligated to appear for the deposition on Monday.”

“The deposition will begin on time and, should your client defy the subpoena, his absence will constitute evidence that may be used against him in a contempt proceeding,” they added.

What Schiff is saying makes sense.   The White House can suggest but not demand that Dr. Kupperman not appear and this would be an act of civil disobedience.  We’ll know on Monday what will happen.  Being it is a closed door deposition, it stands to reason that any information that could harm the national security would not be released to the public.  I think Schiff recognizes that there will be a number of  contempt of Congress proceedings, which could bog down the inquiry.  There are many other subpoenas related to documents, which are in non-compliance.  These requests were made to Mike Esper, Mike Pompeo, Rudy Giuliani and Mike Pence.  The list of subpoenas will grow.   I hope Dr. Kupperman appears on Monday as it will be harder for John Bolton to avoid his subpoena.

See my new page on the impeachment inquiry documents.

Stay tuned,

Dave

Links:

https://www.politico.com/news/2019/10/25/charles-kupperman-bolton-impeachment-058254

Another Brick in the Wall

The Trump administration lost badly in the District Circuit Court of Washington, D.C. on obtaining the redacted portions of the Mueller Report on grounds that it related to Grand Jury testimony.   The DOJ argued that the impeachment inquiry was illegal.  The judge issued a scathing opinion, ordering the Justice Department to comply with the Subpoena from the House inquiry as follows:

“Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry,” Howell wrote.

The DOJ will appeal the ruling.    Judge Howell has legitimize the impeachment inquiry and given it powers reserved for the judicial branch.   The DOJ knows that if the appellate court rules against them, this will set a precedent and make it much easier to get compliance on a subpoena.  The ruling elevates the inquiry  beyond normal Congressional investigations, giving subpoenas the same weight as in court cases.  Judge Howell states:

“(A)n impeachment trial is an exercise of judicial power,” Howell wrote. “Contrary to (the Justice Department’s) position — and as historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear — impeachment trials are judicial in nature and constitute judicial proceedings.”

What happens when subpoena are ignored?  It is rare, but there is precedent when Attorney General Eric Holder defied an subpoena from Congress.  Holder was found in Contempt of Congress in June 2012 for refusal to turn over documents in regards to the Fast and Furious scandal.  The documents were sought to show Holder had knowledge of the program earlier than what he stated in his testimony.   Presidential Candidate Rick Perry called on Holder to resign.   The Obama administration and the Department of Justice declined to prosecute citing executive privilege.  (see links)

However, Howell’s ruling, if allowed to stand, makes the subpoena battle between the Executive and Judiciary branches.  so the Holder precedent doesn’t apply.   The Watergate tape case seems applicable, and when the Supreme Court ruled against Nixon, he complied.

What House Majority leader, Nancy Pelosi move in structuring the inquiry is brilliant.  Keep the committee chairmen out of the limelight and allow the depositions to go forward as quickly as possible  with 3 committees meeting together.  This means a group of 100 representatives, nearly a quarter of all representatives in Congress.

Intelligence – Chaired by Adam Schiff
Foreign Affairs – Chaired by Eliot Engel
Oversight and Reform – Carolyn Maloney (currently acting chair due to the passing of Elijah Cummings).

According to Wikipedia, “The Intelligence Committee will focus on the contents of the whistleblower complaint and whether the complaint may have been wrongfully hidden from Congress, while the Foreign Affairs Committee will focus on interactions the State Department may have had with the President’s personal attorney Giuliani, and the Oversight and Reform Committee will investigate whether White House classification systems were used to secure potentially damaging records of phone calls between the President and leaders of various countries around the world.”

To help with compliance of the subpoenas,  the depositions to date have been taken in closed door sessions.  What he has not done, is to exclude all Republican members (47 in total) from participating in the sessions.  Of course, without the media coverage, I’m certain many pass on this opportunity.

How much more is there to the inquiry?  Good question.  There are a total of 51 requests and subpoenas, of which 11 individuals have testified.  So, on this basis, we have a long ways to go.   There’s a lot of good links summarizing what has taken place.  I will begin a special web page for the documents related to the impeachment.  For a running unbiased summary, I particularly like Wikipedia.

Stay tuned,

Dave

Links:

howell ruling (pdf file) 75 pages

Wikipedia:  Impeachment inquiry against Donald Trump 

Judge says impeachment inquiry is legal and justifies disclosing grand jury material

Trump impeachment tracker: Following all the action in Congress

Pompeo subpoenaed by House committees for failure to produce Ukraine documents

Key Witness in Impeachment Inquiry Asks Federal Court to Rule Over Testifying

Mr, Charles Kupperman’s case is interesting because he is really trying to know whether “Constitutional Immunity” exists before disregarding a subpoena.   My guess is the Federal Court will not help out Mr. Kupperman, because there is no case (violation of law)  in front of them.   They may wait until the “Don McGahn case” (he refused to testify) is resolved.   A lot of gears in motion!

Wikipedia Contempt of Congress

Wikipedia Eric Holder

New York Times:  Subpoenas and Requests

White House Letter:  Advising Laura Cooper not to testify:

white house blocking testimony