United States District Court, District of Columbia
CHARLES M. KUPPERMAN, Plaintiff,
UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants.
MEMORANDUM OPINION [DKT. NOS. 40, 41, 43]
RICHARD 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
President). 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]
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. Therefore, I
GRANT the defendants' motions and
DISMISS the case.
case arises from the impeachment investigation into certain
conduct by the President. In particular, the President spoke
by phone with Ukrainian President Volodymyr Zelensky on July
25, 2019 regarding, among other things, United States
military support to Ukraine and former Vice President Joseph
R. Biden. See Impeachment Rep. at 12, 14. The
following month, a whistleblower filed a complaint expressing
concerns about the content of this call and whether it showed
the President attempting to influence a foreign leader to
investigate his political rival, former Vice President Biden,
who was-and currently is-running for President in the 2020
election. See Id. at 26; Whistleblower Compl. at
Ultimately, on September 9, 2019, HPSCI, along with the House
Foreign Affairs and Oversight committees, launched an
investigation into the content and context of the call.
See Impeachment Rep. at 25. On October 31, 2019, the
House of Representatives adopted a resolution authorizing
these same committees "to continue their ongoing
investigations as part of the existing House of
Representatives inquiry into whether sufficient grounds exist
for the House of Representatives to impeach President
Trump." H.R. Res. 660, 116th Cong. (2019). As part of
its inquiry, HPSCI invited the testimony of a number of
witnesses and subpoenaed others who declined to appear
voluntarily. See generally Impeachment Rep. at
231-56 (cataloging witnesses).
the witnesses whose testimony HPSCI sought was Dr. Kupperman.
Kupperman served as the Deputy National Security Advisor from
January 9, 2019 to September 20, 2019, and as Acting National
Security Advisor for eleven days at the end of his tenure in
the Executive branch. Compl. ¶ 13; Def President Donald
J. Trump's Statement of Material Facts
("President's SOMF") [Dkt. #40-1] ¶¶
1-2; House Defs.' Resp. to President's SOMF
("House SOMF") [Dkt. #47-1] ¶¶ 1-2- In
his capacity as Deputy National Security Advisor, Kupperman
also held the title Assistant to the President and served as
the sole deputy to then-National Security Advisor John
Bolton. President's SOMF ¶¶ 5, 6; House SOMF
¶¶ 5, 6. Kupperman advised the President regarding
national security policy toward Ukraine and coordinated
national security policy among the relevant Executive Branch
agencies, including the Department of State, the Department
of Defense, and the Office of Management and Budget. Compl.
¶ 13. According to HPSCI's Impeachment Report,
Kupperman listened in on the President's July 25, 2019
telephone call with President Zelensky and was otherwise
involved in issues relevant to the impeachment inquiry.
Impeachment Rep. at 65, 72, 100.
October 16, 2019 HPSCI sent a letter to Kupperman seeking his
appearance for a deposition on October 23, 2019. See
Id. at 237. He did not appear, and the Committee issued
a subpoena on October 25, 2019 directing him to sit for a
deposition three days later. Compl. ¶ 14;
President's SOMF ¶ 17; House SOMF ¶ 17. The
same day that HPSCI issued its subpoena, the White House
Counsel directed Kupperman not to appear for the scheduled
deposition, asserting that Kupperman was absolutely immune
from compelled Congressional testimony. Compl. ¶¶
18, 19; President's SOMF ¶ 18; House SOMF ¶ 18.
Kupperman did not appear at the October 28 deposition,
President's SOMF ¶ 19; House SOMF ¶ 19, and
instead filed this suit, see generally Compl.
the House and the President moved to dismiss Kupperman's
complaint on November 14, 2019. They argued the case was
non-justiciable for a number of reasons, including that it
was moot and that Kupperman lacked standing. The parties
completed briefing on those motions on December 4, 2019, and
I heard argument six days later on December 10, 2019.
It is a
fundamental principle of our Constitutional system that the
federal judicial power is not without limits. See Valley
Forge Christian Coll. v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464, 471 (1982).
Rather, Article III of the Constitution grants federal courts
the authority to adjudicate only "Cases" and
"Controversies" between adverse litigants.
Raines v. Byrd, 521 U.S. 811, 818 (1997); Valley
Forge, 454 U.S. at 471. This requirement is not empty
formalism: It "ensures that the Federal Judiciary
confines itself to its constitutionally limited role of
adjudicating actual and concrete disputes," Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013),
rather than issuing advisory opinions on abstract legal
issues, Los Angeles Cty. v. Davis, 440 U.S. 625, 633
(1979). Indeed, "[i]n our system of government, courts
have no business deciding legal disputes or expounding on law
in the absence of... a case or controversy."
Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013)
(internal quotation marks omitted).
actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed."
Arizonans for Official English v. Arizona, 520 U.S.
43, 67 (1997) (internal quotation marks omitted). "A
case becomes moot-and therefore no longer a 'Case' or
'Controversy' for Article III purposes-when the
issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome."
Already, LLC, 568 U.S. at 91 (some internal
quotation marks omitted). In other words, "[i]f an
intervening circumstance deprives the plaintiff of a personal
stake in the outcome of the lawsuit, at any point during
litigation, the action can no longer proceed and must be
dismissed as moot." Genesis Healthcare, 569
U.S. at 71-72 (internal quotation marks omitted).
has withdrawn Kupperman's subpoena. See House
Notice of Mootness, Ex. A ("The House Permanent Select
Committee on Intelligence . . . hereby withdraws its subpoena
. . . ."). As a result, Kupperman no longer faces the
"irreconcilable commands" of two coordinate
branches of government, see Compl. at 2, and he
accordingly lacks any personal stake in the outcome of ...