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White House claims of ‘absolute immunity’ are going to be put to the test

[Charles Kupperman]

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

There were hearings in two impeachment-related lawsuits today in the same DC courthouse, both likely to shape how the impeachment inquiry will play out.

The first involved Charles Kupperman, top aide to John Bolton, who has brought a lawsuit asking the court to decide who prevails between a Congressional subpoena and a White House directive to ignore that subpoena. Kupperman’s lawyer stated that his client had no dog in the merits fight, but that the White House has declared him to be “cloaked” with “absolute immunity,” whatever those things are. So it sounds like he’s willing to testify but doesn’t want to incur his own liability and/or doesn’t want to be the guy who shredded the concept of executive privilege when history looks back on this mess.

It was only an initial scheduling conference, so not much happened, but the consequences are pretty large so the case should move fast. Kupperman’s attorney is also John Bolton’s attorney, and it’s interesting that Bolton isn’t joining in the suit, especially since Bolton has signaled that he’d testify if Congress only subpoenas him. It follows that the “absolute immunity” the White House claims “cloaks” Kupperman would also “cloak” Bolton, but Bolton evidently doesn’t share Kupperman’s concerns.

The other case involves Don McGahn, a former White House attorney and key witness in the Mueller investigation, which may very well be included in the articles of impeachment. Mueller’s report found Trump asking McGahn to lie about discussions they’d had about the possibility of removing Mueller (one of the ten instances of obstruction cited by Mueller). The House Judiciary Committee has been after McGahn’s testimony from before the Ukraine fallout occurred.

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The nearest case on point involves Harriet Miers (remember her?); Congress subpoenaed her in an inquiry into the forced resignations of numerous DOJ attorneys by then Pres. George W. Bush. Like McGahn, Miers was White House counsel. The court flatly rejected the White House’s claim that Miers was “absolutely immune,” reckoning that there might be times when White House officials can claim immunity — perhaps where national security issues were implicated — but none were present there.

To the extent McGahn’s testimony concerns events relevant to potential articles of impeachment, it seems dubious that the White House could simultaneously block that testimony on immunity grounds. But the courts will need to arrive at that point carefully. And hopefully, quickly.

It was just announced that the decision on Kupperman won’t come until December 10, earliest.

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