Washington — A lawyer for a former National Security Council official called on a federal judge to deny a request by acting White House chief of staff Mick Mulvaney to join a lawsuit over whether the official should comply with congressional demands for testimony or follow a White House order not to appear before the committees leading the impeachment inquiry.
Charles Kupperman, a former deputy national security adviser under John Bolton, filed suit in October after the committees issued a subpoena for his testimony. Kupperman shares an attorney with Bolton, who has declined to testify voluntarily but has not been subpoenaed.
House Democrats said they were withdrawing Kupperman’s subpoena last week and urged the court to dismiss the suit, arguing a similar case involving former White House counsel Don McGahn would be resolved sooner.
Mulvaney was issued a subpoena to appear for a deposition last week, which he ignored. His attorney filed a motion asking to join the lawsuit in the U.S. District Court for the District of Columbia over the weekend. Judge Richard Leon is expected to hold a telephone conference regarding Mulvaney’s motion on Monday.
In a filing Monday afternoon, Kupperman’s attorney Charles Cooper opposed Mulvaney’s attempts to join the lawsuit, arguing that Mulvaney “has made it clear that he supports the Executive, and he accordingly seeks declaratory relief against only the House Defendants.” Both the House and President Trump are named as defendants in the suit.
“President Trump, represented by the Department of Justice, will vigorously champion Mulvaney’s interest in the President’s assertion of absolute immunity overriding Mulvaney’s obligation to appear and testify in response to the House subpoena,” Cooper wrote.
Cooper said Mulvaney has “publicly discussed the events at issue in the House’s impeachment inquiry, including appearing to admit there was a quid pro quo relationship” between a delay in military aid to Ukraine and the country opening investigations, referring to a White House briefing with Mulvaney in October. Cooper also said Kupperman’s status as a former official means the court’s decision might not be applicable to Mulvaney, who remains a White House employee.
Cooper also argued that Kupperman’s role as an adviser solely on “highly sensitive” national security matters differs from Mulvaney, who advises the president on a range of subjects.
“If any close personal advisor to the president qualifies for testimonial immunity, it surely must be [Kupperman],” Cooper wrote.
House Democrats filed their own motion opposing Mulvaney’s inclusion in the lawsuit, arguing that the case is moot given the withdrawal of Kupperman’s subpoena. But even if it isn’t, they argued, Mulvaney is “differently situated from Kupperman in several important respects” that mean his attempt to join the suit should be denied.
“Unlike Kupperman, Mulvaney does not state that he would comply with his subpoena if this Court rejects the claimed absolute immunity,” the House’s general counsel wrote. “And, unlike Kupperman, Mulvaney remains subject to a subpoena that has not been withdrawn.”
On Saturday, Mulvaney’s attorney William Pittard filed a motion requesting to join the suit, arguing the two officials were in similar circumstances, since both had received subpoenas and were told not to comply by the White House.
“The question [of] whether the President’s authority must give way in the face of a congressional subpoena — the determination Mr. Kupperman has asked this Court to make — is central to the question whether the House may take adverse action against Mr. Mulvaney, as threatened,” Pittman wrote.
