A federal judge on Monday dismissed a lawsuit over the testimony of Charles Kupperman, a former deputy to then-national security adviser John BoltonJohn BoltonSchumer renews call for witnesses to testify in impeachment trial in wake of ‘game changer’ report Susan Collins says she’s ‘open’ to calling witnesses in Senate impeachment trial ‘Will a majority of senators pursue the truth over all else?’ Doug Jones asks in op-ed MORE, saying House Democrats’ decision to withdraw a subpoena for Kupperman’s testimony had rendered his case moot.
Kupperman was on the July 25 phone call between President TrumpDonald John TrumpSchumer renews call for witnesses to testify in impeachment trial in wake of ‘game changer’ report Tulsi Gabbard: Impeachment has ‘greatly increased the likelihood’ of Trump reelection and GOP retaking House Susan Collins says she’s ‘open’ to calling witnesses in Senate impeachment trial MORE and Ukrainian President Volodymyr Zelensky at the center of Trump’s impeachment and filed a lawsuit to resolve the conflict between House Democrats seeking to compel his testimony and a White House order to defy a congressional subpoena.
Judge Richard Leon, a George W. Bush appointee to the U.S. District Court for the District of Columbia, presided over the case.
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Leon said the Democratic-led House Intelligence Committee’s withdrawal of a subpoena for Kupperman’s testimony — plus its “unequivocal” pledge to not reissue one — relieved the former White House aide of the “irreconcilable commands” he faced.
“He accordingly lacks any personal stake in the outcome of this dispute,” Leon wrote. “Thus, it would appear that this case is moot and should be dismissed.”
An attorney for Kupperman had described the former aide as being caught in a “classic Catch-22,” facing irreconcilable orders from government branches caught in a potentially landmark legal battle over the separation of powers but with “no dog in the fight.”
Kupperman hoped the court would declare a winner. But by dismissing Kupperman’s case, the judge was not required to resolve the dispute between the government branches.
Leon said he was particularly sensitive to Kupperman’s dilemma given his experience working in both the executive and legislative branches. He described their competing interests as pitting “Congress’s well-established power to investigate” against “a President’s need to have a small group of national security advisors who have some form of immunity from compelled Congressional testimony.”
“Fortunately, however, I need not strike that balance today!” Leon wrote.
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Both the House and the Department of Justice sought to have Kupperman’s lawsuit dismissed.
Kupperman was among a slate of current and former officials House Democrats subpoenaed as part of their impeachment inquiry into Trump.
Trump has argued that his subordinates have “absolute immunity” from complying with congressional subpoenas stemming from House Democrats’ impeachment inquiry, an argument that Democrats countered was legally groundless.
In dismissing the case, Leon said he was unpersuaded by Kupperman’s argument that the House subpoena could be reissued or that Kupperman could be held in contempt of Congress for his refusal to comply with their earlier request.
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“Both of these arguments are lacking in merit,” Leon ruled.
House Democrats this month took the historic step of impeaching Trump. But they delayed sending the two House-passed articles of impeachment to the Senate as talks broke down between the top two Senate leaders over the terms of Trump’s trial, including the presence of witnesses.
Some Democrats have held out the possibility of trying to secure witness testimony during the Senate trial, though it’s unclear if Kupperman would be among those called.
Updated at 6:01 p.m.