Saturday, October 26, 2019
Former National Security Official Sues for Declaration on Congressional Subpoena, Absolute Privilege
Former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman sued late Friday for a ruling on how he should navigate between a House committee subpoena to testify in the impeachment inquiry and White House instructions not to.
The case is unusual, in that the subject of a subpoena seeks a ruling before making a decision to testify. More commonly, a rebuffed House committee has filed suit to enforce its subpoena.
Kupperman's complaint sets out two questions for the court. First, the complaint asks whether the White House is right in flatly instructing him not to testify based on its now-familiar categorical assertion of absolute executive privilege. On the one hand, he says that the Office of Legal Counsel "has consistently opined that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties," and that "[t]he Executive Branch has, with few exceptions, refused to permit close White House advisors to the President to testify before Congress since the 1940s when the Executive Office of the President was created." On the other, he points out that the D.C. District rejected just such an absolute, categorical claim of executive privilege in Committee on the Judiciary v. Miers. But he notes that the court "further concluded that the Counsel to the President was not entitled to absolute or qualified immunity because the inquiry did not 'involve the sensitive topics of national security or foreign affairs.'" He also notes that the ruling was stayed pending appeal, and that it settled before the D.C. Circuit had a chance to rule.
Next, the complaint asks whether the committee had authority under House rules to issue the subpoena. He cites Rule XI, clause 2(m), which grants committees subpoena power "[f]or the purpose of carrying out any of its functions and duties under this rule and rule X . . . ." He notes that the rule doesn't specifically include impeachment as one of the "functions and duties," and that Rule X speaks in terms of legislative functions, not impeachment. But he also points out that the D.C. Circuit recently held in Mazars "that Rule XI, clause 2(m) authorized the House Oversight Committee to issue a subpoena in furtherance of an investigation into alleged misconduct by the President," but that Judge Rao dissented on this point.
Kupperman asked the court for a declaration on how to reconcile the competing demands and for expedited review.