House Assures Court It Won’t Subpoena Bolton Aide Even For Senate Impeachment Trial | Talking Points Memo

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#21

I think that is another possibility. The House figures that if they let Leon muck with it, it will be “on appeal” and then if they call Bolton to testify in the Senate Trial (I don’t think Bolton is going to help Trump, I think he just wants to be “compelled” to spill the beans, preserve his reputation as a russia hawk but also not be accused of back-stabbing Trump, making his wing-nut welfare go away) Trump will argue that Robert’s can’t rule on it, rather they ought to “wait for the DC Circuit.”

Given that it appears that Pelosi/Schiff’s strategy is to Subpoena Bolton, Mulveney, etc to the Senate Trial (which they can do under the Standing Senate rules) and then ask Roberts to rule on any claims of privlage, they may not want to much it up for Roberts.

That said, they are putting a lot of faith in Robert’s to play it straight. My guess is he will, but you never know…

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#22

Kupperman’s testimony isn’t needed at all. Even if he is compelled to testify he would not answer the questions due to executive immunity. Or worse, just lie.
He is being shown as an example of obstruction. He could explain what happened, but won’t on trumps order.
The weird part is how he still wants to get a ruling. If he is ordered to testify if the house subpoena him, would he appeal the decision to the higher courts?

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#23

IANAL either, but…

if they had gone forward with the case, then Team Trump gets to argue that there should be no “obstruction of Congress” article of impeachment, because the matter is still before the courts.

Of course, not asking the courts to intervene makes the House look just as bad in my book.

On the whole, I think that there was far less downside in going to court however, because…

I think there is little cause for concern here. There is really very little reason to think that any court would actually agree with the whole “absolute testimonial immunity” stuff. Even the batshit crazy Trump judge in the McGahn appeal (Rao) said that she would have supported the House position if the subpoena had been issued under impeachment powers.

The reality is that the courts are jealous of their own power, and telling Trump that he could order people not to respond to congressional subpoenas would have interfered in the courts powers as well.

I think there could have been a glitch if the House had been talking about a power to completely override executive privilege concerns – that could have led to the court carving out some kind of privilege even during impeachment. That’s why I;ve said elsewhere that the House should have gone to court, and asked that the Nixon tapes case be used as a template.

In that case, Sirica was to review the tapes for privileged materials, prior to turning them over to the Special Prosecutor. The House could have asked the court to appoint a special master to review documents for relevance to the specific impeachment inquiry, and also be present during testimony to ensure that questions be restricted to areas relevant to the impeachment.

#24

you’ve been watching kellyanne again, haven’t you? (oh, shit. now you’ve got me doing it too.)

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#25

It’s what makes you so charmingly quizzical?

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#26

you obviously didn’t bother to read any of the briefs in the case.

you only don’t understand that withdrawing a subpoena does not mean you are no longer liable for ignoring it in the first place.

This is especially relevant because the House is claiming that when it comes to impeachment, the House’s subpoena power is outside of the courts authority to begin with, In other words, the House is saying that it should not have to answer to the courts at all – that Trump committed an impeachable offense by telling Kupperman not to testify, and nothing about that is reviewable by the courts.

So the only protection that Kupperman has from an inherent contempt proceeding for failing to respond to a subpoena is the courts.

Now, in the current circumstances, I think that kupperman can trust that the Dems aren’t going to punish him – but there is no guarantee of that. And its entirely possible that Kupperman has drunk the Kool-Aid, and actually believe that Democrats are as evil as Rush Limbaugh claims.

So while I think that ultimately the case would be decided in the House’s favor on the merits, Judge Leon would be perfectly justified in issuing some kind of restraining order barring the House from taking any actions against Kupperman without giving him an opportunity to contest those proceedings (as opposed to being detained under inherent contempt, and having to file a habeas petition).

#27

I’ll take the bait. Look at Article II, quoting the Constitution: “Through these actions, President Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any
and all information to the House of Representatives in the exercise of its ‘sole Power of Impeachment.’”

Besides the acquiescence to Trump’s bad-faith delay tactics, anyone who wants to involve courts in the impeachment process needs to explain why in the world the House would give away part of its “sole Power.”

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#28

The impeachment managers represent the House in the proceedings – as such, they would be expected to abide by the decisions of the House regarding witnesses that will not be called.

We’re now getting into unexplored areas of constitutional law — and while its certainly arguable that Judge Leon doesn’t have the power to stop the Senate from issuing a subpoena to Kupperman, Judge Leon would have the power to issue a protective order for Kupperman, and order US Marshals to prevent Kupperman from being detained by the Senate Sargeant-at-Arms… and I don’t think that anyone wants the impeachment trial delayed while this dispute wends its way to the Supreme Court.

#29

IANAL and I may be wrong on the facts but I did not see in this article any assurance that the House will not subpoena Bolton for the impeachment trial. Bolton would be a much more valuable witness than Kupperman and, assuming Roberts authorized the subpoena to Bolton during the trial, I doubt any court would take that case.

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#30

“No future injuries will befall” Kupperman, Tatelman assured the judge.
DUN DUN DUN
This is getting better than a lifetime movie. But I jest.

I think if the Trump admin lawyers are jumping on your bandwagon, prob a good idea to rethink your strategy. For the arguments put forward here from people smarter than me, I can see some good reasons the House is taking this route.

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#31

what precedent would that be? because I’ve been reading the briefs, and while there are good arguments for why testimony would be compelled, there aren’t any actual precedents relevant to this particular case.

The closest you get are precedents compelling witnesses to show up – and in all of those cases, its made clear that executive privilege issues are unresolved. Additionally, none of those cases dealt with the President’s conduct of foreign affairs — and there are a couple of cases (Watergate tapes, Miers) where the courts specifically carved out a possible exception allow for testimonial immunity when foreign policy./national security is concerned.

And since none of these cases were actually impeachment cases (Miers is oversight, Watergate tapes was a criminal case) the best we can do is extrapolate from dicta in non-impeachment cases, and try to figure out what the founders intended.

IMO, the House leadership wants this over with as soon as possible, and while Judge Leon is acting with remarkable speed, there is no assurance that the appellate process could be accomplished within the schedule that the House wants. And the House leadership also wants its obstruction article of impeachment – but that becomes slightly harder to argue if there is a court case in progress.

(the House could argue that the President lacks the authority to give orders to former employees, and argue that the implicit threat to Kupperman from Trump is just another aspect of the obstruction, but has chosen not to do so)

Biden just blew up the House’s obstruction articles.

The key quote is at about the 13:10 mark of the video.

Q: Republicans are suggesting that they would subpoena you,. If you are subpoenaed, would you comply?
A: No. I’m not going to let you take the eye off the ball here.

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#32

Sorry Z no help.

#33

Keeping the tradition alive. Do you blame him?

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#34

Let me know when they actually stop destroying the border, coz as far as I can see, the Trump Admin ain’t stopping til someone backs the car up.

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#35

The Democrats prove once again to be spineless and weak! Led by an almost 80 year old grandmother!

2 articles of impeachment…what a joke!

Nothing on Mueller’s report!
Nothing on Emoluments violations!
Nothing on tax fraud!
Nothing on money laundering for Tussian Oligarchs!
Nothing on obstructing justice and witness tampering on Trump’s rapes!

Now the Democrats are afraid to subpoena witnesses for the Senate trails!

No wonder the blue collar labor class no longer votes for candy ass Democrats!

Where’s Chuck Schumer? Is he governing from a nursing home?

#36

no quite. I’ve looked, and can find no rule that allows the House managers to issue subpoenas. The closest thing I can find is a provision regarding the form of a subpoena which refers to House managers’ requests for subpoenas, and seems to suggest that the process is automatic

Form of a subpena to be issued on the application of the managers of
the impeachment, or of the party impeached, or of his counsel

But the Senate itself decide what evidence is admissible, and that would include what witnesses would be considered relevant/necessary for its proceedings. That would include the question of whether new witnesses could be called that did not appear during House proceedings.

Moreover, it is the Senate that makes decisions regarding enforcement of subpoenas. That would mean either going to court (and good luck getting a case resolved before the impeachment trial is over – and the subpoena is mooted) or inherent contempt proceedings (which presents its own problems).

In other words, if the House is planning on subpoenaing Bolton and Mulvaney, they are going to need to get McConnell to agree – or find four senators willing to go against Trump’s wishes – for no discernable benefit to themselves or the process.

its not about Roberts playing it straight. Its about whether the Senate wants to enforce subpoenas that the House could be bothered trying to enforce.

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#37

For what?

#38

Update – Judge Leon has issued orders on the motions to dismiss (for mootness?), motion to dismiss on jurisdictional grounds, and the motion for summary judgement. Unfortunately, the texts of the orders are not out yet…

one assumes for ignoring a Senate subpoena.

I mean, here we are, talking about a lawless president defying House subpoenas, and the “leading” Democratic candidate demonstrates that he’s happy to ignore Senate subpoenas on a whim - without even the pretense of executive privilege – just because he is Joe Biden, and apparently Joe Biden thinks he too is above the law.

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#39

Even more remarkable coming from Biden, who constantly reminds people of how many “good” Republicans there are.

And now he wants to join them in defying Congressional subpoenas with no legal basis for doing so.

Biden is utterly unfit to be President.

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#40

Every chance he gets.

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