Ex-Bolton aide to press ahead with subpoena lawsuit, says McGahn ruling not relevant

An attorney for former deputy national security adviser Charles Kupperman said Tuesday that a court ruling compelling former White House counsel Don McGahn to testify before Congress does not apply to his client, who will continue to pursue his own lawsuit over whether he must comply with a congressional subpoena.

Chuck Cooper, who represents both Kupperman and former national security adviser John Bolton, said in a statement that the ruling did not resolve the question of whether his client or others “whose responsibilities are focused exclusively on providing information and advice to the President on national security” should have to testify before Congress because the House Judiciary Committee told the court it did not seek information on national security topics from McGahn.

“In McGahn, the House Judiciary Committee emphasized to the district court that the information it sought from Mr. McGahn ‘did not involve the sensitive topics of national security or foreign affairs,’” Cooper said in a statement Tuesday. 

“Therefore, any passing references in the McGahn decision to Presidential communications concerning national security matters are not authoritative on the validity of testimonial immunity for close White House advisors, like Dr. Kupperman, whose responsibilities are focused exclusively on providing information and advice to the President on national security,” Cooper continued.

The development indicates that the McGahn ruling will not change either Kupperman’s or Bolton’s calculus on testifying before the House Intelligence Committee in connection with the impeachment inquiry into President Trump’s dealings with Ukraine. 

Kupperman evaded a subpoena to testify last month and filed a lawsuit asking a federal judge to decide whether he should obey the subpoena or a directive from the White House that he is immune from compelled congressional testimony. Bolton, who has not been subpoenaed, has similarly said he would not testify absent a court ruling on the matter. House Democrats, who hope to vote on impeachment articles by year’s end, have since withdrawn the subpoena for Kupperman’s testimony.

Cooper said Tuesday that Kupperman will continue to seek “an authoritative and binding judicial ruling” that resolves whether he should obey Congress or Trump’s directive that he not testify in connection with the impeachment inquiry. 

U.S. District Judge Ketanji Brown Jackson, a Obama appointee, ruled Monday that McGahn was not immune from compelled congressional testimony — as the White House had argued — and must testify before the House Judiciary Committee. The panel had sought McGahn’s appearance back in May in connection with an investigation stemming from former special counsel Robert Mueller’s investigation.

Jackson wrote in the opinion that the president’s claim that top advisers are immune from compelled congressional testimony “has no basis in the law” and said it made no difference whether the individuals are “privy to national security matters.” 

“Presidents are not kings,” Jackson wrote in the lengthy 120-page opinion.

The ruling was viewed as a victory for House Democrats, but the Trump administration quickly pledged to appeal the decision.   

Meanwhile, U.S. District Judge Richard Leon, who is handling Kupperman’s case, has set a motion hearing on Dec. 10.