“Should your client defy the subpoena, his absence will constitute evidence that may be used against him in a contempt proceeding,” wrote the three chairs of the House committees involved in the impeachment inquiry, according to The Hill, regarding former White House deputy national security adviser Charles Kupperman, who is supposed to testify tomorrow. Kupperman on Friday filed a lawsuit, described as “without merit” by the chairs in their letter, asking a federal court to resolve for him the competing demands of the House, which has subpoenaed him to testify, and the White House, which has now attempted to go beyond its executive privilege stance to constitutional immunity extended to Kupperman, so that he would not have to testify at all.
This is the latest episode in the White House’s attempt to stonewall the House from getting testimony and documents in the impeachment inquiry, being led by House Intelligence Committee Chairman Adam Schiff (D-CA), acting Oversight and Reform Committee Chairwoman Carolyn Maloney (D-NY), and Foreign Affairs Committee Chairman Eliot Engel (D-NY). In their letter, the three chairs made it clear that they would view Kupperman’s failure to appear not just as grounds for contempt charges against Kupperman, but also as potential further evidence against President Trump, indicating, according to The Hill, that “Such willful defiance of a duly authorized subpoena may cause the committees to draw an adverse inference against the president.” According to The Hill:
House Democrats leading the impeachment inquiry into President Trump late Saturday threatened contempt proceedings against a former White House deputy national security adviser if he fails to appear for a scheduled deposition Monday. …“Notwithstanding this attempted obstruction, the duly authorized subpoena remains in full force and Dr. Kupperman remains legally obligated to appear for the deposition on Monday,” their letter states. “The deposition will begin on time and, should your client defy the subpoena, his absence will constitute evidence that may be used against him in a contempt proceeding.” … “The White House’s overbroad assertion of ‘absolute immunity,’ at its core, is another example of the president’s stonewalling of Congress and concerted efforts to obstruct the House’s impeachment inquiry.” On Friday, Kupperman asked a federal judge to rule on whether he must appear, saying he faced the “irreconcilable demands” of both the House subpoena and the White House’s announcement that it will not cooperate with the impeachment inquiry.
The timing of the White House’s assertion of constitutional immunity for Kupperman, and Kupperman’s Friday lawsuit, just one business day before he was to testify, suggests an effort by Trump’s side to delay Kupperman’s testimony, even if his lawsuit ultimately is not successful. It remains to be seen how long it will take the court to rule on Kupperman’s case, and whether that ruling, if against Kupperman, will then be appealed, injecting more of a delay. It seems very unlikely, given his lawsuit, that Kupperman will actually appear to testify tomorrow or, if he does, he may not give substantive answers, instead asserting the immunity the White House claims on his behalf rather than giving answers. If Kupperman does not appear, then it also remains to be seen how much of a bite the threatened contempt charges will actually have against him.