A former aide to John Bolton — Charles Kupperman — was supposed to testify before the impeachment inquiry today. But when he received his subpoena, he filed a lawsuit before a federal judge asking if he was obliged to testify.
The vibe surrounding this story implies that this is something of a set-back for the impeachment inquiry. Emphasis is placed on how this will delay, the progress of the inquiry. There’s talk of the House threatening to hold Kupperman in contempt.
But, when I read how Kupperman’s suit is worded, Kupperman’s move looks different to me. In fact, it looks like he’s deliberately working to aid the impeachers’ cause.
Here’s how Kupperman’s suit is described in the Huffington Post article published Saturday:
Kupperman said he “cannot satisfy the competing demands of both the legislative and executive branches.” Without the court’s help, he said, he would have to make the decision himself — one that could “inflict grave constitutional injury” on either Congress or the presidency.
His filing says “an erroneous judgment to abide by the President’s assertion of testimonial immunity would unlawfully impede the House from carrying out one of its most important core Constitutional responsibilities” — the power of impeachment — and subject Kupperman to “potential criminal liability for contempt of Congress.”
On the other hand, “an erroneous judgment to appear and testify in obedience to the House Defendants’ subpoena would unlawfully impair the President in the exercise of his core national security responsibilities ... by revealing confidential communications” from advisers, according to the filing.
This looks to me like Kupperman, with his lawyers, is teeing up a ball for a federal judge to drive straight down the fairway— making a declaration that, to the best of my knowledge, has not yet been heard from the federal courts: namely, that Trump’s obstruction of witnesses is wholly illegitimate, and that everyone subpoenaed by the Congress in its impeachment probe is legally obligated to appear and testify.
I don’t know how essential Kupperman’s own testimony is to the impeachment inquiry (he was in on Trump’s infamous call with Ukrainian President Zelensky). But such a declaration from a federal judge certainly looks to me like something of great value.
I don’t know how much this will delay Kupperman’s testimony, but the article says that he’s asked for an “expedited” decision.
And it is my impression that there is little question which of those two “competing demands” — the President’s demand for stonewalling, without any legal claim for executive privilege; and the Congressional demand that a subpoenaed witness appear — would win out according to the Constitution.
Nor is there much doubt as to which branch is in danger of “grave constitutional injury”— it is the Congress, in contempt of which this lawless President has been acting in unprecedented ways.
Last week, a federal judge declared that the House’s way of proceeding — no official House-wide vote on impeachment so far — is entirely legitimate, thus sweeping the Republicans’ bogus complaints into the trash where they belong. That was a big win.
Kupperman seems to me to be setting up for another kindred and even more important legal victory for the impeachment process. Kupperman’s move — while couched in the innocent-sounding terms of even-handedness -- seems intentionally designed to advance the impeachment process by getting a federal judge to declare that Trump’s attempts to block people from testifying should be swept out of the way of the legitimate investigative process.
Which is a process, as Kupperman’s suit itself declares, that involves “carrying out one of its most important core Constitutional responsibilities”