United States District Court, District of Columbia
Charles M. KUPPERMAN, Plaintiff,
UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants.
[Copyrighted Material Omitted]
Justin Cooper, Jose Joel Alicea, Michael W. Kirk, Cooper
& Kirk, PLLC, Washington, DC, for Plaintiff.
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.
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.
OPINION [DKT. ##40, 41, 43]
J. LEON, United States District Judge.
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.
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
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
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). 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).
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. ...