Bolton Has No Excuse, ‘Must Testify’ Now That Judge Has Dismissed Kupperman’s Lawsuit: Legal Experts

Former U.S. National Security Advisor John Bolton speaks at the Center for Strategic and International Studies September 30, 2019 in Washington, DC. Bolton spoke on the topic of , “Navigating Geostrategic Flux in Asia: The United States and Korea.” 

A federal judge for the U.S. District Court of the District of Columbia on Monday dismissed former John Bolton deputy Dr. Charles Kupperman’s lawsuit against the House of Representatives, leading legal observers to demand, once again, that Bolton testify in the impeachment inquiry.

The judge found that the Kupperman lawsuit was moot given that the House withdrew a subpoena for Kupperman’s testimony in the impeachment probe, and given that there is “no reasonable possibility that the House will exercise its inherent contempt power against Dr. Kupperman.”

U.S. District Judge Richard Leon concluded his 14-page memorandum opinion with a flourish:

Have no doubt though, should the winds of political fortune shift and the House were to reissue a subpoena to Dr. Kupperman, he will face the same conflicting directives that precipitated this suit. If so, he will undoubtedly be right back before this Court seeking a solution to a Constitutional dilemma that has long-standing political consequences: balancing Congress’s well-established power to investigate with a President’s need to have a small group of national security advisors who have some form of immunity from compelled Congressional testimony. See Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 101 (D.D.C. 2008). A dilemma, I might add, that I particularly appreciate having served on a number of occasions in both the Legislative and Executive branches. Fortunately, however, I need not strike that balance today! Dr. Kupperman’s claims are MOOT, and his case must therefore be DISMISSED.

The Kupperman lawsuit sought an authoritative and binding judicial ruling to resolve the question of whether Kupperman was constitutionally obliged to testify in the impeachment inquiry or to abide by President Trump’s directive not to testify.

House Democrats successfully sought to dismiss the lawsuit, claiming it was moot after withdrawing Kupperman’s subpoena. They wanted to avoid the delay protracted litigation would cause to the impeachment proceedings. Nevertheless, Kupperman persisted, culminating in today’s dismissal.

Legal experts say that Bolton doesn’t have any excuse for refusing to testify in the impeachment inquiry.

NPR recently asked Bolton for comment on the impeachment inquiry. Bolton replied that he has “a lot to say on the subject” but wasn’t going to get into it because he didn’t know if he should obey a White House directive not to testify.

He also said he was monitoring Kupperman’s since-dismissed case for guidance.

“Well, you know, there’s obviously a lot swirling around in that department, including some litigation that could affect my status. So I think although I have a lot to say on the subject, the prudent course for me is just to decline to comment at this point,” Bolton said. “Dr. Kupperman, my former deputy, is in litigation now on what to me is a critical separation of powers question. When the House issues a subpoena – and in his case, and I think it would be true in mine – and the President tells him not to testify, which authority controls? Dr. Kupperman went to court to seek the third branch’s opinion in this conflict between the first two. I think that’s a very important issue that needs to be resolved.”

But a federal judge recently penned a 120-page opinion slamming the DOJ’s anti-subpoena arguments in the Don McGahn subpoena dispute.

“[I]t is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny,” U.S. District Judge Ketanji Brown Jackson said. “Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful.”

“Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds–essentially, that the Constitution’s scheme countenances unassailable Executive branch authority–is baseless, and as such, cannot be sustained.”

The DOJ has since tried to downplay the importance of the McGahn subpoena.

Former acting U.S. Solicitor General Neal Katyal commented that Judge Jackson’s ruling is “the definitive word” and that Bolton “must testify.”

Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center Joshua Geltzer said there were two takeaways from the dismissal of the Kupperman suit.

“The definitive word on Trump’s absolute immunity claim remains that it’s bogus,” he said. “Given that & now given yesterday’s new Ukraine reporting, Bolton’s refusal to testify is utterly unjustified & unjustifiable.”

The latest reporting Geltzer appears to be referring to revolves around White House and DOJ lawyers’ justification for withholding military aid to Ukraine. In short, they decided that Trump could withhold the aid and ignore the Impoundment Control Act of 1974 — a law that requires the executive branch to notify Congress if and when appropriated funds are being withheld — because he’s president.

Bolton, the New York Times reported, let it be known that he was opposed to the hold on the aid:

Opposition to the order from his top national security advisers was more intense than previously known. In late August, Defense Secretary Mark T. Esper joined Secretary of State Mike Pompeo and John R. Bolton, the national security adviser at the time, for a previously undisclosed Oval Office meeting with the president where they tried but failed to convince him that releasing the aid was in interests of the United States.

Others criticized Bolton, a notorious foreign policy hawk, for running and hiding from the impeachment inquiry even though he was “always free to testify.”

Bolton resigned — or was fired, depending on the individual speaking about it — in September, weeks before the whistleblower complaint went public and prompted House Democrats to formalize the impeachment inquiry against his former boss.

You can read the rest of Judge Leon’s opinion below.

Kupperman lawsuit dismissed by Law&Crime on Scribd

Jerry Lambe and Colin Kalmbacher contributed to this report. 

[Image via Win McNamee/Getty Images]

Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.

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