Fight over potential impeachment witness shows how slow the courts work

A hearing in federal court over a potential impeachment witness Tuesday illustrated just how slow the courts can be — hours after House Democrats highlighted the issue.

House Intelligence Chairman Adam Schiff, a California Democrat, had said earlier Tuesday the courts can take months to decide cases about witness testimony, and that’s why the House hasn’t used the courts more to resolve its standoffs with the White House.

Following more than an hour of arguments Tuesday afternoon, federal Judge Richard Leon didn’t decide what to do with recalcitrant impeachment witness Charles Kupperman’s court case, leaving major questions about congressional subpoena power and White House immunity during impeachment still far from a judicial resolution.

The House subpoenaed Kupperman, a former deputy national security adviser, in late October, and the White House told him not to testify. He went to court at that time, asking for the judge’s intervention. He never testified, and the House withdrew his subpoena.

Throughout the hearing, Leon, a George W. Bush appointee with a sometimes unpredictable streak, repeated at least three times that the House “might not be in a hurry to have this court address the merits of this case.”

Getting to the merits means Leon would weigh whether the House could or could not subpoena current or former administration officials — a question the federal courts have never definitively decided.

It was unclear whether Leon was stating a fact or warning the House that it might lose against the White House on major separation of powers questions if the case survives. Leon emphasized so much how the House might not want his decision in this case that Justice Department lawyers representing the White House smiled and smirked as Leon spoke.

Requests for dismissal

The House and the Justice Department have asked the DC District judge to dismiss the case, and the House lawyers promised emphatically on Tuesday that their committees wouldn’t subpoena Kupperman as impeachment heads to a Senate trial. The House also wouldn’t hold him in contempt, its lawyers said.

The case has effectively put a pause on the fight between the House and the White House over impeachment witnesses. Several top officials did not testify, following the President’s direction, and the House announced Tuesday it would introduce an article of impeachment against President Donald Trump for obstructing Congress. Kupperman, at times, has been considered a stand-in for former national security adviser John Bolton, another top witness the House had wanted to speak about the President and who hasn’t testified.

The House admitted in court Tuesday it’s basically powerless to force administration officials to testify at this time.

“We like to keep up appearances we have a jail in the basement,” US House attorney Todd Tatelman told the judge, conceding that the House wouldn’t arrest a person for defying a congressional subpoena. The House “absolutely will not be doing this here in this instance,” Tatelman said about a theoretical contempt arrest in the halls of Congress.

The Justice Department, for its part, also said in court it wouldn’t criminally prosecute any administration official for failing to testify because of the President’s direction. Aside from arresting a witness in contempt on its own, the House could also refer a person to prosecutors for alleged criminal contempt.

Kupperman’s lawyer Charles Cooper said that though he believed House General Counsel Doug Letter, who was in court, on his pledges, he didn’t trust the congressional Democrats for their word.

“I would play poker with Mr. letter over the phone,” Cooper said. But he also envisioned a scenario where the House at a later time could attempt to hold Kupperman in contempt for refusing to testify. In that case, “they’ve had their cake and eaten it too,” he added. Overall, Cooper argued to keep the case alive in court, so that Leon could later consider the bigger questions about immunity and congressional subpoena power.

The judge reminded the lawyer the case would end up back in court if the House tried again to force Kupperman to testify after a case dismissal.

Leon said he would write an opinion on whether the case can survive and he can consider White House immunity claims, which he didn’t today.

“I wish I had a crystal ball and predict when I could get you an opinion,” he said, before wishing both sides happy holidays and leaving the courtroom.