Kupperman v. House of Representatives of the U.S.A.

Citation: Not availableDocket: Civil Action No. 2019-3224

Court: District Court, District of Columbia; December 29, 2019; Federal District Court

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Dr. Charles Kupperman filed a suit for a declaratory judgment against President Donald J. Trump and various members of the United States House of Representatives after being subpoenaed by the House Permanent Select Committee on Intelligence (HPSCI) on October 25, 2019, as part of an impeachment inquiry. Kupperman, a former Deputy National Security Advisor, was directed by the President not to comply with the subpoena, asserting that he had absolute immunity as a close presidential advisor. Seeking judicial guidance on which directive to follow, Kupperman initiated the lawsuit on the same day he received the subpoena. 

The case was assigned to the court on October 28, 2019, with a scheduling hearing set shortly thereafter. During this hearing, both the President and the House indicated intentions to seek dismissal. The court established a briefing schedule to address both justiciability and merits, with a hearing scheduled for December 10, 2019. On November 5, 2019, HPSCI withdrew its subpoena, leading the House to declare the case moot and request to vacate the expedited schedule. The court directed the parties to incorporate mootness arguments into the existing briefing schedule.

Additionally, on November 8, 2019, Acting White House Chief of Staff John Michael Mulvaney, who was also subpoenaed by HPSCI, sought to intervene in the case. A telephonic conference was held on November 11, 2019, to discuss Mulvaney's motion; however, he withdrew it before the court issued a ruling on the matter.

On November 25, 2019, a legal opinion was issued in Committee on the Judiciary v. McGahn, compelling former White House Counsel Donald F. McGahn to testify under a House Judiciary Committee subpoena and dismissing the Executive branch's immunity claim. Following this, on December 3, 2019, the House Permanent Select Committee on Intelligence (HPSCI) released a draft report on the impeachment inquiry regarding the President's phone call with Ukrainian President Volodymyr Zelensky on July 25, 2019, which raised concerns about potential influence over a foreign leader to investigate political rival Joe Biden. On December 10, 2019, just before oral arguments on motions to dismiss, the House Judiciary Committee released draft articles of impeachment against the President. The proceedings included over 350 pages of briefing prior to the December 10 hearing.

The case, stemming from the impeachment investigation, was deemed moot, leading to the dismissal of the case and the granting of defendants' motions. The House had previously authorized ongoing investigations into whether grounds existed for impeachment, and HPSCI had invited and subpoenaed witnesses, including Dr. Kupperman, former Deputy National Security Advisor. A separate motion to add the House Sergeant at Arms as a co-defendant was denied as moot due to the case's resolution.

Kupperman served as Deputy National Security Advisor and Assistant to the President, advising on national security policy regarding Ukraine and coordinating efforts among various Executive Branch agencies. He was involved in the impeachment inquiry, having listened to the President's July 25, 2019 call with President Zelensky. After being requested by the House Permanent Select Committee on Intelligence (HPSCI) to appear for a deposition, Kupperman did not show up, citing a directive from the White House Counsel claiming absolute immunity from Congressional testimony. Consequently, he filed a lawsuit after HPSCI issued a subpoena. The House and the President moved to dismiss Kupperman's complaint, asserting it was non-justiciable due to mootness and lack of standing. The legal framework emphasizes that federal courts can only adjudicate actual cases or controversies, as outlined in Article III of the Constitution. A case becomes moot when the issues are no longer live or when the parties lack a legally cognizable interest in the outcome. HPSCI has since withdrawn Kupperman's subpoena, leading to questions about the case's viability.

The subpoena against Dr. Kupperman has been formally withdrawn, eliminating the conflict between two branches of government, and rendering the case moot. Consequently, Kupperman lacks a personal stake in the dispute. He argues against mootness, citing two reasons: the potential for the subpoena to be reissued and the possibility of punishment for non-compliance while it was active. However, the House has made unequivocal statements in court asserting that they will not reissue the subpoena or take any action against Kupperman for past non-compliance. These assertions have been reinforced in multiple filings and a court hearing, where House counsel confirmed that no other committees would pursue a subpoena related to Kupperman. Despite Kupperman's claims that the case is not moot under the voluntary cessation doctrine, the court finds that the House has met its burden to demonstrate that reissuance of the subpoena is not expected, which supports the conclusion that the case is indeed moot.

Kupperman argues that the House's prior representations regarding the subpoena were not definitive and have been contradicted by other statements. Specifically, he points to an initial statement from House counsel indicating no current intention to reissue the subpoena, arguing this does not meet the House's burden of proof. However, he acknowledges that recent filings and oral arguments from House counsel were clear and authorized by the Speaker of the House, leading to the conclusion that there is little chance Kupperman will be re-subpoenaed regarding impeachment.

Kupperman further asserts that the court cannot deem the case moot based solely on the assurances of House lawyers without compelling evidence to support these promises, especially since they come from lawyers rather than the defendants themselves. He contends that there is no precedent for accepting the mere promises of lawyers as sufficient. Nevertheless, he overlooks the "presumption of regularity" that applies to the actions of public officials, which suggests courts should assume officials have performed their duties properly unless proven otherwise. This principle has been upheld in similar cases, where clear agency representations have sufficed to demonstrate voluntary cessation of challenged conduct. The court cites past Circuit decisions where government lawyers' assurances were deemed sufficient to establish mootness, reinforcing the presumption of regularity in this context. Ultimately, the court concludes that both the presumption of regularity and the House's recent actions indicate it will not pursue further action against Kupperman.

HPSCI issued a report in December regarding its impeachment inquiry, stating it would not reissue Kupperman's subpoena. The House has approved two Articles of Impeachment that do not mention Kupperman, with one article alleging that the President obstructed Congress by instructing former and current Executive Branch officials to avoid cooperation, specifically omitting Kupperman from a list of nine officials. This indicates that the House intends to take no further action against Kupperman, rendering his claims moot. Kupperman argues his case is not moot due to potential contempt penalties, but this argument lacks merit. The Department of Justice has confirmed that Kupperman will not face prosecution for not appearing before Congress, asserting that any such prosecution would be unconstitutional. Moreover, the House has stated it will not pursue inherent contempt against Kupperman, nor will it initiate any contempt proceedings or impose fines, making it extremely unlikely that any actions will be taken against him, especially after the withdrawal of the subpoena. The House's inherent contempt powers have not been used in nearly a century, further diminishing the likelihood of any punitive measures against Kupperman.

There is no reasonable expectation that the House will utilize its inherent contempt power against Dr. Kupperman. Should the political landscape change and a new subpoena be issued, Dr. Kupperman would encounter the same conflicting directives that led to this litigation. He would likely return to court to address a constitutional issue involving the need to balance Congress's investigative powers against the President’s requirement for national security advisors to have some immunity from compelled testimony. The House has indicated it will not reissue the subpoena, thereby eliminating the possibility of enforcement actions. The court acknowledges the complexity of this balance, having experience in both legislative and executive roles, but concludes that Dr. Kupperman's claims are moot and must be dismissed.