Judge Throws Out Bolton Deputy’s Lawsuit Over House Subpoena, Declares Case Moot | Talking Points Memo

On Monday, U.S. District Judge Richard Leon dismissed the lawsuit of former National Security Adviser John Bolton aide Charles Kupperman regarding the House Intelligence Committee’s now-retracted subpoena in the impeachment inquiry, declaring the case to be moot.


This is a companion discussion topic for the original entry at https://talkingpointsmemo.com/?p=1282188

So Kupperman now you think this is over, but it’s not. This will hang over your head for a long time to come.

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Does this mean Bolton will testify?
Rhetorical question. Of course he won’t testify. If he does, I predict his testimony will be worthless.

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I’d rather they themselves be doing the hanging…from their heads…or toes…toes work too…

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Is Kupperman’s first name Chad?

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So on Twitter, they seem to translate the ruling as Bolton must now testify. i am not following that reasoning.

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Somehow I feel as if the public lost.

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Worse than worthless, harmful to getting to the truth.

It looks like both sides get to say, “Yay us!” I can understand the disappointment that Kupperman will not testify, at least for now, and will face no legal penalties. But it also avoids setting a dangerous precedent if the House lost, that subpoenas can be ignored.

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Sure, the public did lose. This case is a mere blip. All will be revealed in time.

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The way I understand it is that this was Bolton’s excuse. Now that this excuse no longer exists, it stands to reason that he would now testify. But chances are that he will move the goalposts again and will not agree to testify.

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He will just demand a subpoena and then litigate again.

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Advantage Pelosi?

Have never seen such contortions and machinations by people to avoid telling what they know…that the President is a serial criminal without scruples,judgement or ability to think critically.

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The reasoning is that this means the decision in the McGhan case is the last word and there now won’t be a laster word from Leon. If Leon had ruled for Kupperman, Bolton could have said, with much justification, “I’m more like Kupperman than McGhan” and followed it.

Leon would have been hard pressed to find a reason why a former national security aide is more entitled to immunity from testimony than former White House counsel, but Schiff, Nadler and Pelosi very evidently figured he was just the guy to do it. And Leon dropped a broad hint he would have tried in that final paragraph.

Bolton will definitely move the goalposts, either by postponing decision until after an appellate decision in McGhan or claiming it doesn’t speak to his personal “dilemma.” He is justly anathema on the left and his future employability anywhere in the Wingnut Welfare ecosystem or future Republican administrations depends on noncooperation, no matter how strongly his bureaucratic knife-fighting and score-settling instincts make him want to shank Trump, Rudy and Mulvaney.

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yeah, well don’t believe everything you read on Twitter.

Rather than meaning Bolton will have to testify, it means the exact opposite. There is absolutely no reason at all why Bolton should think he has to testify. That’s because Bolton – unlike Kupperman – never even got a subpoena.

What the Kupperman case does is make it clear that the second article of impeachment is pure political posturing. When Kupperman went to court, and asked the court to decide who he had to obey – the President’s executive privilege based claim (testimonial immunity is just an extension of exec privilege), or a congressional subpoena, the House withdrew its subpoena — and then had to repeatedly state in court briefs and hearings that not only would Kupperman not be re-subpoenaed under any circumstances, absolutely no actions would be taken against Kupperman for his defiance of the subpoena.

This is as close as you can get to saying “we never had a basis for issuing the subpoena in the first place”, because subpoenas are not supposed to be issued unless the information is absolutely crucial.
No government authority should be compelling citizens to provide testimony on a whim, not the courts, not the cops, and not congress.

except, of course, that the issues in the McGahn case have nothing whatsoever to do with a potential case concerning Bolton – the crucial questions in any Bolton related case were neither briefed nor argued, and while Judge Jackson is certainly entitled to her opinion, it is far from precedential in terms of any legal case that would be filed pursuant to Bolton’s testimony.

ETA:

actually, it would have been very easy for Leon to rule that Kupperman did not have to testify. In both the Watergate tapes case, and the Miers case,courts deliberately carved out a possible exception for claims of testimonial immunity when the President’s conduct of foreign policy was at issue.

Moreover, the actual issue in McGahn was his refusal to even show up in response to the subpoena – the entire question of executive privilege claims was taken off the table by the House lawyers when they filed their motion for summary judgement in the McGahn case. From Judge Jackson’s opinion…

Notably, whether or not the law requires the recalcitrant official to release the
testimonial information that the congressional committee requests is a separate question
, and one that will depend in large part on whether the requested information is
itself subject to withholding consistent with the law on the basis of a recognized
privilege. But as far as the duty to appear is concerned, this Court holds that Executive
> branch officials are not absolutely immune from compulsory congressional process—no
matter how many times the Executive branch has asserted as much over the years—even
if the President expressly directs such officials’ non-compliance.

In the Kupperman example, the case was filed by Kupperman prior to the date he was scheduled to testify – in other words, Kupperman did things the correct way, unlike what McGahn did, and what Biden claimed he would do, before walking back his statements about ignoring Senate subpoenas.

Legally, this is the right decision. And frankly, I’m surprised it took this long to decide. There is no controversy here for the court to weigh in on. For the judge to issue a substantive ruling in this case would be to issue an advisory opinion, clearly beyond the scope of constitutionally permissible judicial authority. All this opinion does is acknowledge that fact.

Once again, you are full of shit, Paul.

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Except, Kupperman was doing exactly what Trump demanded- everyone shut up and not testify. The House withdrew it’s suit because it had other witnesses who defied Trump and honored their oaths. Period. Full Stop.

tRump’s abuse of power happened and continues while we have this back and forth over what the ruling means. The fact that tRump ordered everyone to not testify and departments not to release documents about his taxes, family separation, status of people being held at the Border and Ukraine are some examples of tRump trying to stop an equal branch of government from carrying out oversight of his administration.

Now, here’s a simple one for you- you are being prosecuted for a crime. You did nothing, and you have witnesses and documents that show you did nothing. Do you encourage these witnesses to testify and release documents, or do you strong-arm witnesses into not testifying, while trying to bribe the jury?

not quite. Kupperman did not refuse to testify. He asked the court whether he was required to testify, or whether he was obliged to obey the President’s directive not to testify. Unlike Mulvaney, etc, Kupperman did not defy the House – rather, he exercised what he felt was his legal right to contest the validity of the subpoena in a court of law.

and this is a key distinction – and one that Judge Leon chose not to address – because both the House, and Team Trump, were arguing that the courts did not have jurisdiction to rule in this case.

it is also instructive to note that judge Leon had already made up his mind on the merits of the case before oral arguments were held – prior to those argument, the judge told all parties that only jurisdictional issues would be considered…

MINUTE ORDER. At tomorrow’s hearing, the Court will hear argument on issues of justiciability. Specifically, the Court directs the parties to focus on mootness and standing. Each of the three parties will have twenty minutes to argue, and defendants may each reserve up to five minutes of their twenty for rebuttal. In light of the parties’ extensive and thoughtful briefing, the Court will not require the parties to address the merits tomorrow

you go to court to compel document production and testimony if the witnesses will not do so voluntarily. This is what (IMO) the House should have done with the impeachment witnesses, but chose not to – and in doing so, completely compromised the arguments behind the second article of impeachment. The “we don’t want to delay proceedings” was clearly just a pretext – the House obviously didn’t feel the testimony being withheld was essential to passing articles of impeachment.

But having these cases in court would have provided ample constitutional justification to delay sending articles of impeachment to the senate (and not just the purely political rationales being offered by House Dems currently.) And having articles of impeachment ready to be sent to the Senate would have provided a compelling reason for the Supreme Court to resolve the court cases with all possible speed.