Kupperman v. House of Representatives of the U.S.A.

UNITED STATES DISTRICT COURT
FORTHEDIBTROCTOFCOLUMB~
CHARLES M. KOPPERMAN, )
)
Plaintiff, )
)
v. ) Civil Case No. 19-3224 (RJL)
)
UNITED STATES HOUSE OF )
REPRESENTATIVES, et al., )
)
Defendants. )
MEMORANDUM OPINION
fl-,
December~, 2019 [Dkt. ##40, 41, 43]
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. ,i,i 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. ,i,i 1, 18. On the same day Kupperman received the subpoena, he filed this suit
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seeking the Court's guidance as to which of these two opposing commands he must follow.
See id. 111-2, 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 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 ofNov. 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. ofNov. 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
1
Earlier that afternoon, counsel for the parties presented oral arguments before one of my
colleagues on the House Judiciary Committee's suit to compel the testimony of former
White House Counsel, Donald F. McGahn. See Comm. on the Judiciary v. McGahn, No.
19-cv-2379 (D.D.C.2019). The Judiciary Committee had filed its motion for a preliminary
injunction or, in the alternative, for expedited summary judgment on August 26, 2.019. See
id. [Dkt. #22].
2
("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 ofNov. 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
2 The final version of the report, cited above, was identical to the draft released on
December 3 in all respects relevant to this case. See https://perma.cc/7APF-Y4EQ (draft
report).
3
the reasons discussed below that this case is moot. Therefore, I GRANT the defendants'
motions and DISMISS the case.3
BACKGROUND
This 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 1.4 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
3Plaintiff sought to cure a potential Speech or Debate Clause issue raised by the House by
adding the House Sergeant at Arms as a defendant. See Pl.'s Mot. to Add the Honorable
Paul D. Irving as Co-Defendant [Dkt. #43]. Because I conclude that this case is moot, I
need not decide this motion and therefore deny it too as moot.
4
A redacted version of that complaint is available at https://purl.fdlp.gov/GPO/
gpo126247.
4
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).
One of 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. 1 13; Def. President Donald J. Trump's
Statement of Material Facts ("President's SOMF") [Dkt. #40-1] 111-2; House Defs.'
Resp. to President's SOMF ("House SOMF") [Dkt. #47-1] 111-2. 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 115, 6; House SOMF 115, 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. 113. 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.
On October 16, 2019 HP SCI 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. 114; President's SOMF 117; House SOMF 117. The same day that HPSCI issued
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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. ,r,r 18, 19; President's SOMF ,r 18; House SOMF ,r 18.
Kupperman did not appear at the October 28 deposition, President's SOMF ,r 19; House
SOMF ,r 19, and instead filed this suit, see generally Compl.
Both 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.
ANALYSIS
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
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controversy." Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (internal quotation marks
omitted).
"An actual controversy must be extant at all stages ofreview, 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 theissues 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).
HPSCI has withdrawn Kupperman's subpoena. See House Notice ofMootness, 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 this dispute. Thus, it would appear that this case is moot
and should be dismissed.
Dr. Kupperman, not surprisingly, disagrees. He argues the case is not moot for two
reasons. First, the subpoena could be reissued. Second, he could be punished for failing
to comply with the subpoena while it was in effect, namely if the House were to exercise
its inherent contempt power against him. For the reasons set forth below, both of these
arguments are lacking in merit.
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I. The Subpoena Will Not Reissue.
There is no reasonable possibility that the House will reissue the subpoena. The
House has repeatedly and unequivocally stated in pleadings to this Court that it will not do
so. See Mem. in Supp. of House Defs.' Mot. to Dismiss ("House Mot.") [Dkt. #41] at 1
("The subpoena that gave rise to this lawsuit has been withdrawn, and it will not be
reissued."); House Defs.' Reply in Supp. of Mot. to Dismiss ("House Reply") [Dkt. #54]
at 1 ("[T]he House Defendants have unequivocally committed to this Court that they will
neither reissue the subpoena to Kupperman nor take any action against him for having
failed to comply with the subpoena while it was in force."); see also House Defs.' Opp'n
to Mot. to Intervene [Dkt. #29] at 1 ("[T]he House Defendants have determined that they
will not reissue a subpoena to Kupperman."). Indeed, in its final filing on its pending
motion to dismiss, the House stated its position in stark terms: "To be perfectly clear yet
again, the House Defendants will not reissue the subpoena to Kupperman, period. There
are no contingencies or caveats to this representation. The subpoena will not reissue today,
tomorrow, or ever." House Reply at 3 (emphasis added). The Court is hard-pressed to
imagine a more unequivocal statement on this issue.
If those representations were not enough, counsel for the House, Todd Tatelman,
reiterated at the December 10, 2019 hearing that Kuppermari's subpoena would not be
reissued. See Tr. of Dec. 10, 2019 Hr'g ("Dec. 10 Tr.") [Dkt. #59] at 6:20-22 ("I'm
authorized here today to represent that the House ... is not going to reissue a subpoena to
Dr. Kupperman."). And, in response to follow-up questions from the Court regarding
whether the House Judiciary Committee-which is not a defendant in this case-might
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independently issue its own subpoena to Kupperman, counsel for the House consulted with
the General Counsel to the House, Douglas Letter, and further represented that "no other
committee ... with an interest in Dr. Kupperman related to the impeachment inquiry would
seek a subpoena or any attempt to enforce a subpoena." Id. at 8:2-14 (emphasis added).
Despite these representations, Kupperman insists that the case is not moot under
the voluntary cessation doctrine, a "long-recognized exception[] to mootness." Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000). Under that
exception, "a defendant's voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice" because otherwise "the
courts would be compelled to leave the defendant free to return to his old ways." Id. at 189
(internal quotation marks and alterations omitted). Rather, the party asserting mootness
bears the "heavy burden of persuading the court" that it is "absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur." Id. (internal
quotation marks and alterations omitted) ( emphasis added). Kupperman claims the House
has failed to carry t_hat heavy burden. Unfortunately for Dr. Kupperman, that is not so.
Kupperman insists that the voluntary cessation exception to mootness applies for
' '
two reasons. First, he contends that the representations were not definitive5 and have been
contradicted by other House statements. See Pl.'s Opp'n to Mots. to Dismiss ("Pl.'s
5
For example, Kupperman notes House counsel's initial statement that the House "ha[d]
no current intention to reissue the subpoena," House Notice of Mootness ,r 2 (emphasis
added), which he argues is nowhere near strong enough to carry the House's burden, see
Pl.'s Opp'n to Mots. to Dismiss ("Pl.'s Opp'n") [Dkt. #45] at 5.
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Opp'n") [Dkt. #45] at 4-8. But whatever can be said about the clarity or uniformity of the
House's earlier statements, the representations made in its latest filings and by its counsel
at oral argument were unambiguous. Indeed, counsel for the House consulted with the
House's General Counsel at the December 10th hearing, and he made clear that the House's
representations were authorized by the Speaker of the House personally and encompassed
the entire impeachment inquiry. See Dec. 10 Tr. at 6:18-23, 7:5-8:14, 13:6-8. Simply
put, I cannot on this record believe there is any reasonable possibility that Kupperman will
be re-subpoenaed about impeachment by the House.
Second, Kupperman claims that the Court cannot find the case moot based on the
"naked" promises not to engage in the challenged conduct (i.e., reissuing the subpoena)
absent additional, compelling evidence to back up that promise. This is especially true, he
argues, when these promises are those of lawyers rather than the defendants themselves.
See Pl.'s Opp'n at 5-8; see also Dec. 10 Tr. at 31:19-32:2 ("[T]here is no case that supports
the proposition that naked lawyers' assurances are themselves sufficient."). Although these
arguments may be well-taken for private litigants, Kupperman ignores the "presumption of
regularity" that attaches to the official acts of public officers, which requires courts to
presume, "in the absence of clear evidence to the contrary ... that they have properly
discharged their official duties." People for the Ethical Treatment ofAnimals v: US. Dep 't
of Agric., 918 F.3d 151, 157-59 (D.C. Cir. 2019) (recognizing that an unambiguous
representation by an agency official would be entitled to presumption of regularity and
could satisfy burden for voluntary cessation purposes); see also Wilson v. United States,
369 F.2d 198, 200 (D.C. Cir. 1966) (applying presumption of regularity to actions of
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Speaker of the House). And our Circuit Court has relied on just these sorts of promises by
Government lawyers in determining that a case is moot. In Gordon v. Lynch, 817 F .3d 804
(D.C. Cir. 2016), for example, the Court concluded that a plaintiff's case seeking
declaratory relief was moot based on a Government lawyer's statement at oral argument
that the Government would not prosecute the plaintiff for the conduct the plaintiff sought
to have declared legal, see id. at 805-07; accord Clarke v. United States, 915 F.2d 699,
700-02, 708 (D.C. Cir. 1990) (dismissing case as moot in reliance on concession by
government lawyer at oral argument that government would not be able to prosecute
plaintiffs). Gordon, like the present case, involved a promise by a Government lawyer that
the Government would not exercise a power unquestionably within its discretion (there,
initiating a prosecution; here, issuing a subpoena), and our Circuit Court took counsel at
his word. Given the presumption of regularity and this Circuit's precedent, so too must I.
And in any event, the House's recent conduct outside this litigation confirms it will
not take any further action against Kupperman. First, HPSCI released a report in early
December summarizing the evidence gathered in its impeachment inquiry, which explicitly
states that it "will not reissue" Kupperman's subpoena. Impeachment Rep. at 281 n.255
( emphasis added); House Defs.' Notice at 1 [Dkt. #60]. Second, and even more
significantly, the House has recently approved two Articles of Impeachment, neither of
which mentions Kupperman. H. Res. 755, 116th Cong. (2019). Tellingly, one article
contends the President obstructed Congress by "[ d]irecting current and former Executive
Branch officials not to cooperate with the Committees." Id. at 7. Indeed, it lists nine
officials, and Kupperman is not among them! Id. This conduct is of course entirely
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consistent with the repeated representations that counsel for the House has made to this
Court. The House clearly has no intention of pursuing Kupperman, and his claims are thus
moot.
II. Dr. Kopperman Will Not Be Punished For Failing To Comply.
Undaunted, Kupperman maintains that his case is not moot because he could still
be held in contempt for his conduct while the subpoena was outstanding. Pl.'s Opp'n at
8-9. Unfortunately for the plaintiff, that argument is similarly without merit. How so?
First, with respect to criminal contempt, the Department of Justice, on behalf of the
President, has unequivocally stated that Kupperman will not be prosecuted for his failure
to appear before Congress as directed by the House. President's Mot. to Dismiss or, in the
Alternative, for Summary Judgment [Dkt. #40] at 13. In fact, the President's view, as set
forth in his pleadings, is that any prosecution of Dr. Kupperman would be Constitutionally
prohibited under these circumstances. Id. at 13, 14. Counsel representing the President,
James Burnham, reaffirmed this very position at our recent oral argument. In his view,
"there is absolutely no circumstance in which the Executive Branch could ever or would
ever prosecute a current or former Executive Branch official who follows the President's
direction not to comply with [a] subpoena." Dec. 10 Tr. at 20:4-8 (emphasis added).
Second, Kupperman' s argument fares no better with respect to his purported
concern that the House will hold him in inherent contempt.6 Not only has the House
6 Kupperman does not appear to argue that his claims remain live because the House
defendants might bring a civil suit against him to enforce the now-withdrawn subpoena.
See Pl.'s Opp'n at 13; see also Dec. 10 Tr. at 20. But even if he did, that argument fails
for the same reason Kupperman's other mootness arguments fail: The House defendants
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repeatedly stated it will not do so, see House Defs.' Reply· at 6 ("The House Defendants
will not initiate contempt proceedings against [Kupperman] or refer his case for
prosecution. They will not exercise inherent authority to arrest him, impose monetary fines
on him, or take any other action against him."); Dec. 10 Tr. at 10:22-25 ("I'm here today
representing[] that no inherent contempt proceedings will follow .... "); see also House
SOMF ,i 20 ("Undisputed . . . that House Defendants will not initiate contempt
proceedings ... [and] will not exercise the House's power of inherent contempt against
Kupperman."), but the practical reality of it doing so is-to say the least-extremely
unlikely. After all, the House has not used its inherent contempt authority in nearly a
century, see Pl.'s Opp'n at 27, nor has it ever sought to impose a monetary fine as part of
that authority, President's Reply at 17. And the possibility of the House doing so after
withdrawing its subpoena is even more remote. See Dec. 10 Tr. at 47:8-48:18 (noting such
a practice was hard to conjure). As such, there is simply no reasonable possibility that the
House will exercise its inherent contempt power against Dr. Kupperman.
Have no doubt though, should the winds of political fortune shift and the House
were to reissue a subpoena to Dr. Kupperman, he will face the same conflicting directives
that precipitated this suit. If so, he will undoubtedly be right back before this Court seeking
a solution to a Constitutional dilemma that has long-standing political consequences:
balancing Congress's well-established power to investigate with a President's need to have
a small group of national security advisors who have some form of immunity from
have unequivocally represented that they will not reissue the subpoena, thereby foreclosing
the possibility of any enforcement suit. See House Reply at 7; House SOMF ,i 20.
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compelled Congressional testimony. See Comm. on Judiciary v. Miers, 558 F. Supp. 2d
53, 101 (D.D.C. 2008). A dilemma, I might add, that I particularly appreciate having
served on a number of occasions in both the Legislative and Executive branches.
Fortunately, however, I need not strike that balance today! Dr. Kupperman's claims are
MOOT, and his case must therefore be DISMISSED.
c:,~
NW.wfiiFJ
RICHARD/75
United States District Judge
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