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Judge Leon is all out of treats this Halloween. At 2:00 this afternoon, lawyers for the president and the House of Representatives are due in Judge Ketanji Brown Jackson’s courtroom to argue whether White House Counsel Don McGahn can be compelled to testify to the Judiciary Committee. At 3 p.m., these same parties were scheduled to appear before Judge Leon for an emergency status conference in former Deputy National Security Advisor Charles Kupperman’s suit for a declaratory judgment as to whether he has to testify to House impeachment investigators about Trump’s infamous phone call with the Ukrainian president, a call which Kupperman listened to in real time.
Would Judge Leon agree to postpone the hearing so everyone could race to the train and get home to their little Power Rangers and Princesses before the witching hour?
Hahahaha, NOPE. Noting that there are so, so many lawyers entered on this case, Judge Leon agreed to move the hearing … to 4 p.m. today (click to enlarge):
BOOOOOOOO. And sorry, kids.
Unlike the McGahn case, this suit was brought by Kupperman himself, who asks for judicial advice as to whether he must comply with a congressional subpoena, or may refuse to answer under the doctrine of “absolute immunity from compelled congressional testimony” that White House Counsel Pat Cipollone conjured up out of whole cloth.
At first blush, Judge Leon might seem a lucky draw for the government. He’s a a dyed-in-the-wool conservative who struck down D.C.’s handgun carry permit, upheld the seizure of a 100-acre butterfly preserve in Texas for Trump’s border wall, and allowed the Trump administration to greenlight the sale of “junk” catastrophic healthcare plans. On the other hand, Judge Leon served as House counsel in multiple, high-profile oversight investigations, including Iran-Contra, October Surprise, and Whitewater, and he teaches a course at Georgetown Law on Congressional Investigations. (Womp womp.)
Even if His Honor decides that he’s in the business of issuing opinion letters — and that’s a big if, since the House hasn’t sued to enforce its subpoena yet — he may decide that the whole issue is moot after the House votes to formalize its impeachment process today. Pat Cipollone’s primal scream of immunity was noticeably short on legal reasoning, save for the assertion that there’s no “real” impeachment without a vote in the full House, a box which should be checked within a few hours. Absent that argument, which forms the basis of Kupperman’s suit, there really isn’t much there there.
Let’s be honest, there never was any there there in the first place, as Judge Beryl Howell, also of the U.S. District Court of D.C., ruled last week in her order to the DOJ to release the Mueller grand jury materials to House impeachment investigators, saying, “[N]o governing law requires this test — not the Constitution, not House Rules, and not Rule 6(e), and so imposing this test would be an impermissible intrusion on the House’s constitutional authority[.]”
Judge Leon’s decision may have wide-ranging consequences for witnesses subpoenaed by Congress. Most immediately, Kupperman’s lawyer, Charles Cooper, also represents former National Security Advisor John Bolton. Bolton has said he won’t testify without a subpoena, but hasn’t yet ruled out showing up to collect one of those “friendly” subpoenas Adam Schiff is handing out like mini-Twix bars to witnesses who got a nastygram from the White House Counsel’s Office threatening certain annihilation if they talked.
So, watch this space to see if the judge tips his hand today. You know John Bolton will be paying close attention.
And have fun out there with your kids. Tonight, the WITCH HUNT is REAL.
Complaint, KUPPERMAN v. HOUSE OF REPRESENTATIVES OF THE U.S.A. et al, No. 1:19-cv-03224 (D.D.C. Oct 25, 2019) [via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.