Case 1:19-cv-03224-RJL Document 22 Filed 11/06/19 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CHARLES M. KUPPERMAN, Plaintiff, v. No. 19-cv-3224 (RJL) UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants. HOUSE DEFENDANTS’ NOTICE OF MOOTNESS AND MOTION TO VACATE BRIEFING SCHEDULE The subpoena at issue in this matter has been withdrawn and there is no current intention to reissue it. Therefore, this matter is moot and should be dismissed. At minimum, because Plaintiff Charles M. Kupperman faces no pending, imminent, or foreseeable injury, Defendants the United States House of Representatives, Nancy Pelosi, Adam B. Schiff, Eliot L. Engel, and Carolyn B. Maloney (the House Defendants) respectfully request that the Court vacate the current expedited briefing schedule. Counsel for the House Defendants have conferred with counsel for Plaintiff and for Defendant Donald J. Trump, and understand that Plaintiff will state his position in response to this motion, and that Defendant Trump takes no position at this time, but reserves the right to respond. 1. On October 25, 2019, the House Permanent Select Committee on Intelligence (HPSCI) issued a subpoena to Plaintiff compelling him to appear for a deposition on October 28, 2019, in connection with the House’s impeachment inquiry. Compl. ¶ 14 (Oct. 25, 2019), ECF No. 1; see Compl., Ex. A. On the same day the subpoena was issued, the White House instructed Plaintiff “not to appear and testify in response to the subpoena,” asserting a purported 1 Case 1:19-cv-03224-RJL Document 22 Filed 11/06/19 Page 2 of 4 “‘constitutional immunity of current and former senior advisors to the President.’” Id. ¶ 18; see id., Ex. B. Also on October 25, Plaintiff filed this suit, requesting that this Court declare (1) whether HPSCI’s subpoena “is authorized by, and valid under, House Rules,” and (2) whether “the President’s assertion of immunity from Congressional process on behalf of Plaintiff is valid and binding on Plaintiff.” Id., Prayer for Relief ¶ A(1), (2). Plaintiff declined to appear at his deposition scheduled for October 28, 2019. Subsequently, Plaintiff notified the parties and this Court that, due to the adoption of House Resolution 660 (2019), “declaratory relief is no longer necessary” as to the first question above: whether HPSCI’s subpoena “is authorized by, and valid under, House Rules.” Notice at 1 (Nov. 4, 2019), ECF No. 20. Under the current schedule, Defendants “shall file any dispositive motions they intend to bring in this case” by November 14, 2019. Order (Nov. 4, 2019), ECF No. 19. Under the standard schedule that would otherwise govern, Defendants’ response to the complaint would be due by December 27, 2019. See Pl.’s Affidavit of Service (Nov. 1, 2019), ECF No. 16; Fed. R. Civ. P. 12(a)(2). 2. On November 5, 2019, HPSCI withdrew the subpoena to Plaintiff that is the subject of this suit. See Ex. A. In light of the status of the House’s impeachment inquiry, House Defendants have no current intention to reissue the subpoena to Plaintiff. Accordingly, Plaintiff has no current or reasonably foreseeable “duty to comply with a lawful constitutional subpoena issued to him by a duly authorized committee of the House of Representatives.” Compl. ¶ 42. Even setting aside other jurisdictional barriers to proceeding here, see 10/31 Hr’g Tr. at 14-15, ECF No. 15, this case should be dismissed as moot. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (“If an intervening circumstance deprives the plaintiff of a personal 2 Case 1:19-cv-03224-RJL Document 22 Filed 11/06/19 Page 3 of 4 stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” (quotation marks omitted)); Cierco v. Mnuchin, 857 F.3d 407, 415 (D.C. Cir. 2017) (voluntary cessation exception to mootness “does not apply” where challenged governmental action “ha[s] been completely withdrawn” and there is no “likelihood that [the government] will reissue the withdrawn” action, such that the plaintiff “cannot now show that [he is] likely to suffer the same injury in the future”). If the Court declines to dismiss this matter outright, House Defendants respectfully request that the Court vacate the expedited briefing schedule currently in place. The withdrawal of the subpoena at issue here has eliminated any present, impending, or foreseeable injury to Plaintiff. At minimum, there is no good cause for expedition. If the Court does not dismiss this action or vacate the expedited briefing schedule currently in place, returning this case to the standard schedule,1 counsel for House Defendants respectfully request a status conference to discuss an alternative briefing schedule at the Court’s earliest convenience. Respectfully submitted, /s/ Douglas N. Letter Douglas N. Letter (DC Bar No. 253492) General Counsel Todd B. Tatelman (VA Bar No. 66008) Deputy General Counsel Megan Barbero (MA Bar No. 668854) Associate General Counsel Josephine Morse (DC Bar No. 1531317) Associate General Counsel Adam A. Grogg (DC Bar No. 1552438) Assistant General Counsel 1 In the event that the Court does not dismiss this action, the House Defendants anticipate filing a motion to dismiss under Federal Rule of Civil Procedure 12 at the appropriate time. 3 Case 1:19-cv-03224-RJL Document 22 Filed 11/06/19 Page 4 of 4 OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Telephone: (202) 225-9700 douglas.letter@mail.house.gov Counsel for House Defendants November 6, 2019 4 Case Document 22-1 Filed 11/06/19 Page 1 of 3 Exhibit A Case Document 22-1 Filed 11/06/19 Page 2 of 3 ('Imtgrega of the limiteh gtatw 73? 20515 November 5, 2019 Michael W. Kirk, Esq. Charles J. Cooper, Esq. Cooper Kirk PLLC 1523 New Hampshire Avenue, NW. Washington, DC. 20036 Dear Messrs. Kirk and Cooper: The House Permanent Select Committee on Intelligence, in consultation with the Committee on Foreign Affairs and the Committee on Oversight and Reform, hereby withdraws its subpoena, which the Intelligence Committee served on your client, Dr. Charles M. Kupperman, on October 25, 2019. As your November 4, 2019, notice to the court acknowledges, due to passage by the House of Representatives on October 31, 2019, of H. Res. 660, your client?s request for declaratory relief ?is no longer necessary on the question whether the subpoena issued by the House Defendants to Plaintiff is authorized by, and valid under, House Rules.? You informed the court that you would ?le an amended complaint ?that will eliminate that request.?l Having conceded that the Intelligence Committee?s subpoena is valid and authorized, your complaint raises a single remaining request before the court: that, notwithstanding substantial jurisdictional de?ciencies, the court should decide whether Dr. Kupperman, a former government of?cial, may defy a duly authorized subpoena at the direction of the White House on a theory advanced by the Department of Justice?s Of?ce of Legal Counsel that he is ?absolutely immune? from compelled congressional testimony. The question whether the Executive Branch?s ?absolute immunity? theory has any basis in law is currently before the court in Committee on the Judiciary v. McGahn, No. l9-cv-23 79 (D.D.C. ?led Aug. 7, 2019). In addition to not suffering from the jurisdictional flaws in Dr. Kupperman?s suit, McGahn is procedurally much further along. In McGahn, cross-motions for summary judgment presenting the absolute immunity question are fully briefed, and oral argument was held on October 31, 2019. At that hearing, the judge stated that she ?underst[ood] . . . the need for expedition? and that she would ?do [her] best to turn [an opinion] around as quickly as possible.? McGahn is, therefore, much closer to resolution by the court than Dr. Kupperman?s flawed suit. Unless your lawsuit was admittedly only for purposes of delay, and without a subpoena in force, the Committees expect that your client will voluntarily dismiss the complaint he filed in the United States District Court for the District of Columbia on the same day he received the Committee?s subpoena and be guided by the decision in McGahn. Pl.?s Notice at l, Kupperman v. US. House of Representatives (D.D.C. ?led Nov. 4, 20l9), ECF No. 20. PRINTED ON RECYCLED PAPER Case Document 22-1 Filed 11/06/19 Page 3 of 3 Michael W. Kirk, Esq. Charles J. Cooper, Esq. Page 2 Dr. Kupperman still has an opportunity to ful?ll his solemn constitutional duty. Like the many dedicated public servants who have appeared before the Committees despite White House efforts to prevent or limit their testimony?including current and former White House of?cials who worked alongside your client?Dr. Kupperman can still add his testimony to the inquiry?s record. The House?s impeachment inquiry will not countenance, however, further efforts by witnesses or the White House to delay or otherwise obstruct the Committees? vital investigatory work. As the Committees have made clear, noncooperation at the direction of President Trump shall constitute evidence of obstruction of the impeachment inquiry and may be used as a basis for drawing an adverse inference against the President. Sincerely, l- . fag Eliot L. Engel dam B. Schiff Chairman Chairman House Committee on Foreign Affairs House Permanent Select Committee on Intelligence War AM Carolyn .Maloney Acting airwornan House Committee on Oversight and orm cc: The Honorable Devin Nunes, Ranking Member House Permanent Select Committee on Intelligence The Honorable Michael McCaul, Ranking Member House Committee on Foreign Affairs The Honorable Jim Jordan, Ranking Member House Committee on Oversight and Reform Case 1:19-cv-03224-RJL Document 22-2 Filed 11/06/19 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CHARLES M. KUPPERMAN, Plaintiff, v. No. 19-cv-3224 (RJL) UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants. [PROPOSED] ORDER Upon consideration of the House Defendants’ Notice of Mootness and Motion to Vacate Briefing Schedule (Nov. 6, 2019), any responses thereto, and the entire record herein, it is hereby ORDERED that the House Defendants’ motion, which notes that this case has become moot, is GRANTED; and it is further ORDERED that the briefing schedule established by this Court’s Order (Nov. 4, 2019), ECF No. 19, is VACATED; and it is further ORDERED that Defendants’ responses to Plaintiff’s complaint are due by December 27, 2019. SO ORDERED. ______________ Date ______________________ U.S. District Judge