A federal judge on Monday fast-tracked a former national security aide’s request for the courts to decide whether he must comply with a White House order not to testify or Congress’s subpoena in the House impeachment inquiry.
Leon had previously said he intended not to take up the merits of the lawsuit until a later date. His shift comes as more White House officials have defied subpoenas but sets up a potentially landmark legal battle over the White House’s ability to defy Congress’s impeachment powers.
Kupperman, who served as deputy to former national security adviser John Bolton, filed a lawsuit asking for a court to resolve the competing demands.
House Democrats subpoenaed Kupperman on Oct. 25 to appear for a deposition three days later, which he declined. White House Counsel Pat Cipollone told Kupperman not to comply, saying that a current and former senior adviser to Trump is “absolutely immune from compelled congressional testimony with respect to matters related to his service as a senior adviser to the President.”
The accelerated hearing came after Leon last week had said the December date is intended to focus only on whether the lawsuit should be dismissed, leaving any debate over the conflict’s substance to next year.
The judge’s new schedule still leaves it doubtful — even if a court upholds the subpoena — that Kupperman’s case will wind through the courts in time for him to testify before hearings that House Democratic leaders have said they want to finish by year’s end.
However, extraordinarily rapid rulings by Leon and by a federal appeals court, where the losing side is expected to turn, could possibly bring the dispute up for arguments before the Supreme Court in the spring. That could lead to a ruling over the separation of powers between the legislative and executive branches before the 2020 elections.
In a hearing last week, Leon, a 2001 nominee of President George W. Bush, acknowledged the need to move quickly in what he called “a matter of great public interest and a matter of great urgency to the country.”
“When it’s a matter of this consequence to this country, you roll your sleeves up and get the job done,” Leon said at the Thursday hearing.
In a court filing Monday, Kupperman’s attorney, Charles J. Cooper, asked Leon to expedite final arguments, saying it would help ensure Leon’s desire to issue a ruling “by the end of December or early January.”
Cooper noted that both defendants in the case, the Justice Department and the House of Representatives, just held final arguments in a courtroom down the hall from Leon’s over a lawsuit raising highly similar issues that was brought by the House to compel former White House counsel Donald McGahn to testify on Capitol Hill.
“Both the House Defendants and the President have briefed and argued in the McGahn case the merits of the question whether a Presidential assertion of absolute immunity against congressional process for a close senior adviser overrides a House subpoena,” Cooper wrote in a three-page filing, “so they will not be prejudiced by an express requirement that they set forth their arguments in this [Kupperman’s] case.”
At McGahn’s hearing, also Thursday, U.S. District Judge Ketanji Brown Jackson appeared strongly skeptical of the White House claim that current and former top presidential aides are “absolutely immune” from congressional subpoena, saying she would issue a ruling this month.
Kupperman’s and McGahn’s cases set up a separation-of-powers test between the White House and Congress that could affect other impeachment-related testimony.
In Kupperman’s case, lawyers for the Justice Department and the House indicated they would ask the judge to dismiss the lawsuit.
Kupperman was a “close personal adviser” to Trump from January until September of this year and met with the president on a regular basis, according to the lawsuit.
He listened in on the July 25 phone call in which Trump pressed Ukrainian President Volodymyr Zelensky to investigate former vice president Joe Biden and his son Hunter Biden. Kupperman left the administration after Bolton resigned.