An attorney representing former deputy national security advisor Charles Kupperman on Wednesday filed court documents asking a federal judge not to dismiss his lawsuit against the House of Representatives. The lawsuit seeks an authoritative and binding judicial ruling resolving the question of whether Kupperman is constitutionally obliged to testify in the impeachment inquiry or abide by President Donald Trump’s directive not to testify.
In a 68-page memorandum, attorney Charles J. Cooper argued that despite the numerous arguments submitted to the Court by the two warring branches of government, Kupperman has yet to have been provided with a definitive answer. Cooper also represents former national security advisor John Bolton, Kupperman’s former boss.
“Both the House Defendants and the President have inundated this Court with a host of arguments for why the Court should not reach and resolve the merits of the Constitutional question raised by the conflicting commands presented by the issuance of the House subpoena to Dr. Kupperman and the President’s instruction that Dr. Kupperman not appear and testify in response to the subpoena,” Cooper said.
Accordingly, without intervention from the Court, Cooper claims that a crucial question pertaining to the separation of powers between two branches of government will be left in the hands of a private citizen.
“But if the Court accepts their entreaties to dismiss the case without reaching the merits, Dr. Kupperman will be forced to himself decide this grave Constitutional question. Neither the House nor the President has offered any explanation for why such a question should be decided by a private citizen rather than by the Judicial Department,” the attorney said.
House Democrats sought to dismiss the lawsuit, claiming it was moot after withdrawing Kupperman’s subpoena due to the delay ensuing litigation would cause to the impeachment proceedings. But Kupperman has pursued the lawsuit, pressing the Court to provide an answer.
Cooper also argued that the Court should not follow the recent ruling from U.S. District judge, who ordered former White House counsel Don McGahn to testify despite protestations from the White House. Cooper has argued that whatever the outcome of the McGahn case is it doesn’t apply to Kupperman’s case.
“Judicial resolution of that question is only relevant to Dr. Kupperman if he is subject to a House subpoena, like Donald McGahn,” Cooper wrote. “Unless the House Defendants anticipated that Plaintiff would once again face a congressional subpoena, they would have no reason to ‘expect’ Plaintiff’s conduct to change in light of the McGahn litigation.”
Attorneys from the Justice Department already filed a notice of appeal in the McGahn case, which seems destined to be resolved by the Supreme Court.
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