December 30, 2019

Big news today in the fight over Trump’s attempt to declare the president above the law, although it is hideously confusing, so it was easy to miss.

Today, federal judge Richard Leon pulled the rug out from Trump’s expansive idea of presidential power when he dismissed a lawsuit brought by Charles Kupperman, who had been Deputy National Security Advisor under John Bolton during the Ukraine crisis and briefly Trump’s Acting National Security Advisor.

The House Intelligence Committee subpoenaed Kupperman to testify in October, but Trump insisted that he refuse, claiming that the president’s top advisors enjoy constitutional immunity from forced congressional testimony: that is, they do not answer to Congress. Kupperman sued both the House Intelligence Committee and the White House, saying he needed the court’s guidance about which directive to obey. (I wrote about all this here on October 26, if you want more backstory.)

Eager to avoid having the subpoenas tied up in the courts, the House Intelligence Committee promptly withdrew its subpoena. But Kupperman would not drop the suit, likely because his lawyer also represents John Bolton, who wanted the issue of primacy resolved before he, himself, decided whether or not to testify.

Today, Judge Leon declared the case moot, since the House withdrew the subpoena. That is, the case is dead; it doesn’t matter anymore.

This decision means that another court decision, by the DC district court, is the one that remains in force. In that November 25 decision in a different case, Judge Ketanji Brown Jackson shot down the argument that top White House officials enjoy “absolute immunity” from compelled congressional testimony. She wrote: “presidents are not kings,” and “no one is above the law.” Former US Acting Solicitor General Neal Katyal tweeted after the decision: “Now that Judge Leon has dismissed the Kupperman/Bolton case, Judge Jackson’s ruling is the definitive word. Bolton must testify.”

Indeed, with yesterday’s revelation that Bolton tried to get Trump to release the Ukraine funding, and our previous knowledge that Bolton furiously opposed the attempts of Trump lawyer Rudy Giuliani and Ambassador to the European Union Gordon Sondland to pressure Ukraine president Volodymyr Zelensky into announcing an investigation into the Bidens, it seems that Bolton’s testimony is vital. In fact, as angry as he seems to have been at the White House’s handling of his portfolio, it is possible he wants to testify.

There has been another sign recently that Trump is running into roadblocks as he tries to consolidate power. There was a tidbit buried in the New York Times article I wrote about yesterday, the one that said leading members of the administration tried to convince Trump to release the Ukraine military funding. Almost in passing, that article said that executive branch lawyers were trying to justify Trump’s withholding of money by coming up with a theory that Trump’s role as commander in chief meant he could override Congressional decisions about funding. That, of course, would give him the power to direct every aspect of our government; it would essentially make him a dictator. But while the fact anyone considered it is appalling, it is of note that even the administration lawyers recognized their argument was absurd and they ended up dumping it in favor of another theory.

It seems that the decision of House Speaker Nancy Pelosi to withhold the articles of impeachment as Minority Leader Chuck Schumer (D-NY) negotiates for testimony of Bolton, as well as three other crucial figures, is paying off as more and more information drops.

And more information is certainly dropping. Tonight the lawyer for Giuliani associate Lev Parnas (who gave Russian money to House Minority Leader Kevin McCarthy) asked a federal judge for permission to share with the House Intelligence Committee materials the Justice Department confiscated from his home, including documents and the contents of a cell phone. Parnas wants to share them to prove that he has important things to say to the committee—he is under indictment and hopes to get credit for cooperating.

Remember, after the House Intelligence Committee hearings, in which ranking member (that is, the top Republican on the committee) Devin Nunes (R-CA) insisted the whole hearing was a farce, phone records indicated that Nunes was involved in the scandal himself: Parnas had been communicating with Nunes during the time period when US Ambassador to Ukraine Marie Yovanovitch was recalled. Now Parnas wants to share a cell phone with the House Intelligence Committee. It seems likely the phone calls he wants to share are important. The Justice Department has agreed to let him share the material.

You know, I’m writing all this down, trying to make sense of very convoluted events, and it seems more like the notes I would take for an academic book on some complicated topic than real life.

But something happened today that reminds me this is all very real, and very much about us, and about who owns our government.

This morning, on Twitter, I retweeted a video clip of a veteran cornering Senator Marco Rubio about the Ukraine scandal. In the video, Rubio claimed not to have read any of the relevant documents for the impeachment proceedings, including the material about the Ukraine scandal. Rubio is on the Senate Intelligence Committee, meaning it is literally his job to know this material, and the veteran, who was polite but firm, kept bringing up established facts and expressing surprise that he, a veteran, knew more about the crisis than Rubio, whom voters hired to do the job.

A few minutes later, my brother (who was clearly reading my Twitter feed instead of working—Hi Irv!) texted me, asking if I recognized the veteran in the clip. When I answered no, he told me the man was Perry O’Brien, the son of one of my brother’s oldest friends, who had served as a medic in Afghanistan and had come home to start Common Defense, an organization of veterans to “preserve the core values we swore to uphold and defend… to protect our communities from hate and violence, to serve on the front lines for social, economic, and global justice, and to champion a truly equitable and representative democracy.”

The last time I saw Perry he had just learned to crawl, and as my mother and I watched his labored journey across my brother’s living room floor, Mom mused that the most amazing thing about getting older was watching the journey children took as they grew into adults. Today, I shared with thousands of other people the journey that that now-grown baby is taking as he tries to reclaim American democracy.

The struggle for American democracy is one made up of many different battles, from confusing court cases and cell phone records to tweets and the combatting of disinformation, but it is, ultimately, about us and our neighbors, and what we want our journey to be.

Notes:

https://www.npr.org/2019/12/10/786893630/lawyer-bolton-aide-charles-kupperman-fears-house-will-reissue-subpoena-for-testi

https://static.politico.com/7a/03/7ca36c734158b8e8b6af7bd77551/kupperman-ruling.pdf

https://www.politico.com/news/2019/12/30/kupperman-ukraine-lawsuit-dismiss-091407

https://threadreaderapp.com/thread/1211769457691021314.html

Katyal:

The decision: https://www.lawfareblog.com/federal-judge-dismisses-kupperman-subpoena-suit

Jackson decision: https://www.npr.org/2019/11/25/782705643/federal-judge-rules-that-mcgahn-must-testify-delivering-blow-to-white-house

Parnas: https://www.thedailybeast.com/lev-parnas-rudy-giuliani-associate-pushes-to-share-his-information-with-the-house-intelligence-committee?source=twitter&via=desktop

commander in chief argument:

https://www.thenation.com/article/campus-combat-profile-afghanistan-war-veteran-perry-obrien/

O’Brien video:

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