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Kupperman v. United States House of Representatives

United States District Court, District of Columbia

December 30, 2019

Charles M. KUPPERMAN, Plaintiff,

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[Copyrighted Material Omitted]

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         Charles Justin Cooper, Jose Joel Alicea, Michael W. Kirk, Cooper & Kirk, PLLC, Washington, DC, for Plaintiff.

         Adam Anderson Grogg, Douglas N. Letter, Josephine T. Morse, Megan Barbero, Todd Barry Tatelman, U.S. House of Representatives Office of General Counsel, Daniel F. Jacobson, Robert Stanton Jones, Sally Pei, Elisabeth S. Theodore, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Defendants United States House of Representatives, Nancy Pelosi, Adam Schiff, Eliot Engel, Carolyn B. Maloney.

         Andrew Marshall Bernie, Cristen Cori Handley, Elizabeth J. Shapiro, James Mahoney Burnham, James J. Gilligan, Serena Maya Schulz Orloff, Steven A. Myers, United States Department of Justice, Washington, DC, for Defendant Donald J. Trump.

         MEMORANDUM OPINION [DKT. ##40, 41, 43]

         RICHARD J. LEON, United States District Judge.

         Dr. Charles Kupperman ("Kupperman" or "Dr. Kupperman") brings this suit for a declaratory judgment against President Donald J. Trump ("the President") and the United States House of Representatives, Speaker of the House Nancy Pelosi, Chairman of the House Permanent Select Committee on Intelligence ("HPSCI") Adam Schiff, Chairman of the House Committee on Foreign Affairs Eliot Engel, and Chairwoman of the House Committee on Oversight and Reform Carolyn B. Maloney (collectively, "the House"). See Compl. [Dkt. #1]. Kupperman, who formerly served as the Deputy National Security Advisor and briefly as Acting National Security Advisor was subpoenaed by HPSCI on October 25, 2019 as part of its impeachment inquiry into the President. See id. ¶¶ 1, 14. The President directed Dr. Kupperman not to comply with the subpoena because, as a close presidential advisor, he was absolutely immune from compelled Congressional testimony. See id. ¶¶ 1, 18. On the same day Kupperman received the subpoena, he filed this suit seeking the Court's guidance as to which of these two opposing commands he must follow. See id. ¶¶ 1-2, 14.

         This case was assigned to this Court on October 28, 2019, and I set a scheduling hearing for three days later. See Minute Order of Oct. 28, 2019. At that hearing, both the President and the House stated that they would seek dismissal. See Tr. of Oct. 31, 2019 Hr'g [Dkt. #15] at 15:18-20 (the House); id. at 20:11-12 (the President).[1]

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Emphasizing that the case was a matter of great consequence to the country, I set an aggressive briefing schedule combining both justiciability and merits arguments, with a hearing to follow shortly thereafter on December 10, 2019. See id. at 24:22-25-10, 25:23-25; see also Minute Order of Nov. 4, 2019 [Dkt. #19] (clarifying schedule).

         During the five weeks leading up to the oral arguments, several other events transpired. First, on November 5, 2019, HPSCI withdrew its subpoena to Kupperman, and the House noticed the case as moot and moved to vacate the expedited briefing schedule on November 6, 2019. See House Defs.' Notice of Mootness & Mot. to Vacate ("House Notice of Mootness") [Dkt. #22]. I held a brief telephonic hearing that same day and directed the parties to incorporate any mootness arguments into the already-scheduled briefing. See Tr. of Nov. 6, 2019 Hr'g [Dkt. #23] at 6:14-24. Second, late in the evening on Friday, November 8, 2019, Acting White House Chief of Staff John Michael Mulvaney ("Mulvaney"), who had also been subpoenaed by HPSCI, moved to intervene. See Mot. to Intervene [Dkt. #26] at 3. I held another telephonic conference three days later on Monday, November 11, 2019, a federal holiday, to hear oral argument on the Mulvaney motion. See Minute Order of Nov. 9, 2019. At the end of that call, I indicated I would rule later that day but was not inclined to grant the motion. See Tr. of Nov. 11, 2019 Hr'g [Dkt. #38] at 23:23-25. Not surprisingly, Mulvaney withdrew his motion before I ruled. See Notice of Withdrawal [Dkt. #37]. Third, on November 25, 2019, my colleague released her opinion in Committee on the Judiciary v. McGahn, ordering the former White House Counsel Donald F. McGahn to testify pursuant to a House Judiciary Committee subpoena and rejecting the Executive branch's claim of immunity from compelled Congressional testimony. No. 19-cv-2379, Mem. Op. [Dkt. #46] at 6-7. Fourth, on December 3, 2019, HPSCI released a draft copy of its report concerning the impeachment inquiry. See The Trump-Ukraine Impeachment Inquiry Report ("Impeachment Rep."), H.R. Rep. No. 116-335 (2019).[2] Fifth, on December 10, 2019, hours before oral argument on the pending motions to dismiss, the House Judiciary Committee released draft articles of impeachment against the President. See H.R. Res. 755, 116th Cong. (2019).

         All told, the parties submitted over 350 pages of briefing before the December 10 hearing. Based on this briefing, oral argument, and the entire record herein, I conclude for the reasons discussed below that this case is moot. ...

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