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Mon Nov 11, 2019, 05:25 PM

Key Filings in the Kupperman/Bolton and Maybe Mulvaney Lawsuit re: Subpoenas

For those interested in the topic of "why don't top WH advisors just show up and testify", this is the full docket of the case filed by Kupperman.

The basic problem for someone whose testimony may, or may not, be the subject of a claim of privilege is whether to comply with a subpoena or to comply with the demand of the person claiming privilege.

Some folks on DU have the unshakeable notion that complying with a subpoena is always mandatory. But that is simply not so. It is particularly not so when there is a privilege involved. I've recently been raked over the coals for suggesting that former presidential advisors against whom the WH has asserted privilege in the face of subpoenas to testify, would do well to seek a judicial resolution rather than deciding for themselves whether to go ahead and give testimony that could prove worthless if indeed it was privileged (and subject them to legal peril).

For example, as an attorney, if I were subpoenaed to testify about a conversation with a client, I would not comply with that subpoena, but would require that a court expressly find that, for some reason, the privilege does not apply.

Kupperman is a former NSC staffer. He has been subpoenaed by the House to testify. He has been ordered by the WH not to testify. Accordingly, he filed this proceeding against the House AND the WH:

https://www.courtlistener.com/docket/16386212/kupperman-v-house-of-representatives-of-the-usa/

40. Plaintiff is bound by his oath of office to abide by the lawful constitutional commands of both the President and the House of Representatives.

41. Plaintiff has a duty to abide by a lawful constitutional assertion of immunity by the President and a lawful instruction by the President that he decline to testify before Congress concerning his official duties as a close advisor to the President.

...

47. It is not possible for Plaintiff to satisfy the commands of both the House Defendants on the one hand, and President Trump on the other.

48. Plaintiff is neither authorized nor able to resolve a Constitutional dispute between the Legislative and Executive Branches of our Government; instead, “it is emphatically the province and the duty of the judicial department to say what the law is.” Marbury, 5 U.S. at 177.

49. Accordingly, Plaintiff is “an interested party seeking” a declaration of his “rights and other legal relations” with the House Defendants on the one hand, and the President on the other. See 28 U.S.C. § 2201(a). Plaintiff takes no position on whether the command of the Legislative Branch or the command of the Executive Branch should prevail; he seeks only to carry out whichever constitutional obligation the Judicial Branch determines to be lawful and binding on Plaintiff.


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Now, just the other day, someone was spitting nails at me for suggesting that this was the proper course of action for someone caught in Kupperman's (and Bolton's) circumstances.

This is the action in which Mick Mulvaney has filed a motion saying, "I'd like to do the same thing."

The problem there is that Mulvaney, unlike Kupperman and Bolton, HAS a position on whether or not he should testify. Mulvaney, as something of a participant in the underlying "drug deal" sides with the White House.

Accordingly, Kupperman and Bolton's attorneys said, "Oh, Hell no" to Mulvaney's intervention.

That "Oh, Hell no" has attracted some attention in the press today, and you might find the actual motion interesting, if you are the type of person who thinks for themselves and does not want other people telling you what to think:

https://www.courtlistener.com/recap/gov.uscourts.dcd.212284/gov.uscourts.dcd.212284.30.0_2.pdf

There are four key distinctions between Plaintiff’s case and the complaint that Mulvaney proposes to file that preclude intervention as of right pursuant to FED.R.CIV.P. 24(a), and that also counsel strongly against the exercise of the Court’s discretion to permit intervention under FED.R.CIV.P. 24(b). First, Plaintiff is and will remain neutral on the question whether the Executive Branch or the Legislative Branch should prevail on the merits of the unsettled Constitutional dispute at issue in this case. In contrast, Mulvaney has made it clear that he supports the Executive, and he accordingly seeks declaratory relief against only the House Defendants.

...

Second, Mulvaney has publicly discussed the events at issue in the House’s impeachment inquiry, including appearing to admit that there was a quid pro quo relationship between the President’s decision to withhold appropriated financial assistance from Ukraine and a Ukrainian investigation into what happened to a Democratic server in 2016 (an admission he subsequently sought to disavow). Plaintiff, in contrast, has never publicly disclosed information relating to any of his official duties, including the matters under investigation by the House. Accordingly, there is a serious question as to whether Mulvaney waived the absolute testimonial immunity claimed by the President such that a judgment in Plaintiff’s case upholding the claim of immunity will not necessarily apply to Mulvaney.

...

Third, because Mulvaney is a current advisor to the President whereas Kupperman is a former advisor, a judgment in Plaintiff’s case that the subpoena must be enforced will not necessarily apply to Mulvaney, given that one important justification offered by the Office of Legal Counsel (“OLC”) for its longstanding assertion of absolute testimonial immunity for close Presidential advisors against Congressional process is that “preparing for such examinations would force them to divert time and attention from their duties to the President at the whim of congressional committees.”

...

Fourth, all of Plaintiff’s official duties exclusively concerned advising the President on highly sensitive matters of national security and foreign affairs, and if any close personal advisor to the President qualifies for testimonial immunity, it surely must be the President’s National Security Advisor and his deputy. In contrast, the bulk of Mulvaney’s duties “d[o] not involve the sensitive topics of national security or foreign affairs.” Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 105 (D.D.C. 2008).

Permitting Mulvaney to intervene could thus prejudice Plaintiff’s strong interest in an expeditious resolution of the merits of the momentous Constitutional issue presented here in accordance with the aggressive schedule the Court has adopted for reaching final judgment as quickly as possible.


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Now, elsewhere on DU, you will find persons peddling the notion that Bolton is seeking to drag this thing out, or resist testifying, for reasons not clearly explained because he has a book deal (but no book as yet).

Those persons will have to explain why Kupperman and Bolton's attorneys don't want Mulvaney slowing down a decision, or bending it in favor of the White House, in the Kupperman action to resolve the privilege issue with respect to former NSC advisors.

20 replies, 633 views

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Always highlight: 10 newest replies | Replies posted after I mark a forum
Replies to this discussion thread
Arrow 20 replies Author Time Post
Reply Key Filings in the Kupperman/Bolton and Maybe Mulvaney Lawsuit re: Subpoenas (Original post)
jberryhill Nov 11 OP
guillaumeb Nov 11 #1
jberryhill Nov 11 #2
guillaumeb Nov 11 #3
jberryhill Nov 11 #5
guillaumeb Nov 11 #6
jberryhill Nov 11 #11
elleng Nov 11 #4
WheelWalker Nov 11 #7
jberryhill Nov 11 #9
WheelWalker Nov 11 #14
kentuck Nov 11 #8
jberryhill Nov 11 #10
kentuck Nov 11 #17
jberryhill Nov 11 #18
moonscape Nov 11 #20
gulliver Nov 11 #12
jberryhill Nov 11 #13
tblue37 Nov 11 #15
brush Nov 11 #16
DeminPennswoods Nov 11 #19

Response to jberryhill (Original post)

Mon Nov 11, 2019, 05:33 PM

1. Thank you for the clear explanation.

And the non-legalese explanation of how the Mulvaney situation differs from that of Kupperman.

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Response to guillaumeb (Reply #1)

Mon Nov 11, 2019, 05:37 PM

2. The real hidden dagger in there


Is the suggestion that Mulvaney has WAIVED any privilege by making public comments about the matter.

That's deadly.

In fact, it is deadly enough that it might make it easier for a court to compel Mulvaney to testify - because of that weird presser he gave on the subject.

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Response to jberryhill (Reply #2)

Mon Nov 11, 2019, 05:40 PM

3. Is it because he is essentially arguing his case in public?

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Response to guillaumeb (Reply #3)

Mon Nov 11, 2019, 05:45 PM

5. Yup, right here

If he's going to talk about it in public, then he can answer questions about it under oath:


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Response to jberryhill (Reply #5)

Mon Nov 11, 2019, 05:46 PM

6. So some good may come out of the general incompetence of the Trump regime. eom

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Response to guillaumeb (Reply #6)

Mon Nov 11, 2019, 05:52 PM

11. That is their one redeeming quality

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 05:40 PM

4. Thanks

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 05:47 PM

7. It's my understanding that a privilege is not blanket, but must be

asserted on a question by question basis. Thus, Mulvaney should be required to appear pursuant to the subpoena, but may not be required to answer questions impacting the privilege. Is that correct? Isn't the question whether there is a blanket privilege (or "immunity from testimony" ) as asserted by the WH? Or am I missing the issue?

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Response to WheelWalker (Reply #7)

Mon Nov 11, 2019, 05:49 PM

9. ...which is another good reason for seeking a judicial declaration


...that might provide more detailed guidance.

Mulvaney, however, can't have his cake and eat it too. He can't do this:



...and then say, "I can't talk about it under oath".

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Response to jberryhill (Reply #9)

Mon Nov 11, 2019, 05:59 PM

14. Yep, he's clearly relating what he was told by Trump, in front of God and everybody.

Thank you.

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 05:48 PM

8. In other words...?

Mulvaney is a turd in the punch bowl?

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Response to kentuck (Reply #8)

Mon Nov 11, 2019, 05:52 PM

10. There are a couple of takeaways


The primary point is that Kupperman and Bolton are pointing out that while they are ex-NSC advisors, Mulvaney is still very much a died in the wool Trump stooge.

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Response to jberryhill (Reply #10)

Mon Nov 11, 2019, 06:22 PM

17. They have a point, don't you think?

What is Mulvaney trying to prove?

If he wants to talk, he'd better do it soon.

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Response to kentuck (Reply #17)

Mon Nov 11, 2019, 06:27 PM

18. Mulvaney has a couple of problems


Mulvaney doesn't want to talk under oath.

He's trying to slow the process down or find any reason not to testify under oath.

In all likelihood, Mulvaney is going to be looking at the Fifth Amendment, instead of Executive Privilege. It's looking more like he was a participant in the extortion scheme.

Getting him to testify is going to be like trying to get this dog into the tub:

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Response to jberryhill (Reply #18)

Mon Nov 11, 2019, 09:06 PM

20. LOL! n/t

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 05:54 PM

12. Looks to me like Mulvaney wants to delay and probably appeal the case if he loses.

The other plaintiffs probably know the right thing to do is to testify against Trump, but they want at least one court decision to agree with them that it is what the Constitution requires.

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Response to gulliver (Reply #12)

Mon Nov 11, 2019, 05:55 PM

13. That's the way it looks to me too

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 06:07 PM

15. K&R for visibility. nt

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 06:15 PM

16. I understand Kupperman and Bolton went to court to get a...

ruling on whether a Congressional subpoena must be obeyed even over an executive immunity claim. If Bolton has info that reinforces testimony already given that a crime was committed (extortion, already admitted by trump's pseudo transcript of his call with the Ukrainian president and Mulvaney's televise public admission—later walked back), why not chance a court ruling, if there needs to be one, after testifying to speed up the Congressional hearing if he wants to be heard so badly?

After all, immunity does not hold in an attempt to block testimonial evidence of a crime committed, even by a president.

SiriusFM's progressive channel today reported that bad blood between Bolton and Mulvaney is the reason Bolton wants Mulvaney to seek his own ruling from the court.

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Response to jberryhill (Original post)

Mon Nov 11, 2019, 06:32 PM

19. Bolton hasn't been subpoened and Kupperman's subpoena was

withdrawn. This makes the court case moot does it not?

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