The key to understanding the different players and their various maneuvers is a different case before a different district court judge — the one involving former White House counsel Donald McGahn.
In the end, I don’t expect Kupperman’s case to go anywhere, meaning the complex maneuvers will all come to naught. But what a tangled tale.
Kupperman brought the lawsuit after Congress issued a subpoena for his testimony and, the same day, the White House instructed him to resist on the grounds of “absolute immunity,” the same dubious theory that is under review in McGahn’s case. So Kupperman sued both the president and the Congress. He asked the court to tell him which of two conflicting demands he should follow.
The House then responded by withdrawing Kupperman’s subpoena and then moving to have the case dismissed as moot.
Kupperman’s approach was quite different from the normal run of cases, including McGahn’s. Typically, a recalcitrant executive branch official decides not to comply with a congressional subpoena, at which point Congress finds him in contempt. Congress then uses that finding as the basis for a lawsuit to determine the validity of the witness’s legal argument for not complying.
Kupperman’s move made sense on its face, and we may need go no further. It’s understandable that he prefers neither to be held in contempt nor to disobey a lawful order from the president.
But what of Mulvaney? He hasn’t even been subpoenaed, presumably because the House knows it is a waste of time. And his maneuver reportedly infuriated both Kupperman and Bolton. Bolton reportedly was barely on speaking terms with Mulvaney when he left the government in part as a result of Mulvaney’s facilitation of Trump’s shakedown of Ukraine.
This is where the McGahn case, before U.S. District Judge Ketanji Brown Jackson, comes in. Jackson has strongly suggested she is not persuaded by the administration’s far-reaching absolute immunity arguments, and she seems likely to issue an opinion upholding Congress’s subpoena soon.
Such an opinion would be taken as functionally conclusive of Mulvaney’s immunity arguments, meaning he would be forced to testify. So his calculation may have been that if he were already in the Kupperman lawsuit, the eventual opinion there would control. Significantly, Kupperman’s case is before U.S. District Judge Richard Leon, a prickly conservative judge with a reputation for giving the government fits and taking a long time to do it.
And now Mulvaney has pulled a new two-step, first suggesting he would file his own lawsuit only to announce that he won’t file a suit at all but will instead follow the president’s order not to cooperate. In other words, “never mind.”
So that leaves Bolton, who certainly may have incendiary testimony to provide, including his reported characterization of Rudolph W. Giuliani a “hand grenade who’s going to blow everything up.” Bolton clearly does not wish to be seen as intransigent and contemptuous along the lines of, say, Secretary of State Mike Pompeo. That could be for any number of reasons: Maybe Bolton wants to sell more books (he’s just landed a book deal), or to project an arm’s length from the soon-to-be impeached president, or he just thinks it’s the right thing to do.
The irony to all these convoluted maneuvers is that the case is probably going to be thrown out before the court reaches the parties’ arguments. The House is right: Neither Kupperman nor Mulvaney is under subpoena, so there’s no “live controversy.” The witnesses have no conflicting obligations, because they are under no legal compulsion to testify. The Constitution forbids federal courts from issuing decisions when there isn’t a live controversy before them.
It is barely possible that Judge Leon’s maverick streak may lead him to reach a decision on the merits in the case. But he shouldn’t, and if he does, the court of appeals will almost certainly throw the decision out. Look in the end for this strange case to come to nothing.