Kupperman claims in a court filing that Mulvaney shouldn’t be allowed to join his lawsuit asking a court for help in a fight between the White House and the House of Representatives. Though Kupperman supports Mulvaney filing a separate lawsuit that would be heard by the same judge, Kupperman doesn’t want to share his lawsuit with Mulvaney.
The legal maneuvering Monday distances Mulvaney from other key administration officials in the impeachment probe, at a time when the acting chief of staff has had a shaky relationship with others in the White House and who impeachment witnesses have said was a major broker in seeking political help for the President from Ukraine.
The pushback from Kupperman’s team comes hours before federal judge Richard Leon of the US District Court in Washington, DC, will hear arguments about Mulvaney joining Kupperman’s lawsuit. That is scheduled for 5 p.m. ET Monday.
Kupperman, a former White House national security official, asked a court to decide whether he was obliged to testify to the House last month, or whether the White House’s assertion of immunity over him was correct. The House later withdrew the subpoena, asking the court to dismiss the case and calling Kupperman’s legal approach a delay tactic.
Kupperman’s attorneys on Monday seized upon Mulvaney’s previous public statements about a quid pro quo between Trump and Ukraine, suggesting to a federal judge that Mulvaney’s attempts to refrain from testifying are less strong than their client’s.
“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),” Kupperman’s attorney Chuck Cooper wrote Monday.
Kupperman, “in contrast, has never publicly disclosed information relating to any of his official duties, including the matters under investigation by the House,” Cooper added. “There is a serious question as to whether Mulvaney waived the absolute testimonial immunity claimed by the President.”
Kupperman’s lawyer also outlined how different his client’s situation is from that of Mulvaney, telling the judge that the two shouldn’t be lumped together.
Kupperman is more neutral than Mulvaney, Kupperman’s attorney said, describing Mulvaney as having made it “clear that he supports the Executive,” according to the filing.
“President Trump, represented by the Department of Justice, will vigorously champion Mulvaney’s interest in the President’s assertion of absolute immunity overriding Mulvaney’s obligation to appear and testify in response to the House subpoena,” according to the filing.
Kupperman’s team also says he is different from Mulvaney because he is a former official and Mulvaney is currently serving in the Trump administration. Kupperman’s work in the White House also exclusively concerned national security and foreign affairs and so deserves extra protections, they say, whereas the bulk of Mulvaney’s work does not concern national security.
The House also opposes Mulvaney’s attempt to join the case, its lawyers wrote in another filing Monday that drew distinctions between Mulvaney and Kupperman’s situations.
“Given his position in the White House, Mulvaney likely played a role in the decision to assert absolute immunity as to him — a decision that Mulvaney now asks this Court to address. The Court should reject such gamesmanship and deny” Mulvaney’s request, lawyers for the House wrote Monday.
House general counsel Doug Letter also wrote Monday that Mulvaney should not be able to “challenge a now-withdrawn subpoena issued to somebody else.” The House is still attempting to get the lawsuit from Kupperman dismissed.