Case 1:19-cv-03224-RJL Document 45 Filed 11/27/19 Page 1 of 64

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________

)
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES HOUSE OF
)
REPRESENTATIVES, et al.,
)
)
Defendants,
)
)
THE HONORABLE PAUL D. IRVING,
)
in his official capacity as Sergeant-at-Arms of the )
United States House of Representatives,
)
The United States Capitol, Room H-124
)
Washington, D.C. 20515
)
)
Proposed Defendant.
)
)
__________________________________________)
CHARLES M. KUPPERMAN,

Civil Action No. 19-3224 (RJL)

CONSOLIDATED MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ MOTIONS TO DISMISS
Charles J. Cooper, Bar No. 248070
Michael W. Kirk, Bar No. 424648
J. Joel Alicea, Bar No. 1022784
Shelby Baird*
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
Washington, DC 20036
Telephone: (202) 220-9600
Facsimile: (202) 220-9601
Email: ccooper@cooperkirk.com
November 27, 2019

Counsel for Plaintiff Charles M. Kupperman
*

D.C. Bar Application Pending; Admitted
in Pennsylvania

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
STATEMENT ..................................................................................................................................1
ARGUMENT ...................................................................................................................................3
I.

II.

DR. KUPPERMAN’S SUIT IS NOT MOOT. ................................................................... 3
A.

The House Defendants’ Voluntary Cessation of
Allegedly Unlawful Conduct Does Not Moot Dr. Kupperman’s Suit. ....................3

B.

Dr. Kupperman’s Suit Is Not Moot Because a Live Controversy
Exists on Whether He Could Be Held in Contempt for His
Conduct While the Subpoena Was Outstanding. .....................................................8

C.

Prudential Ripeness Considerations Do Not
Preclude this Court from Considering Dr. Kupperman’s Suit. ..............................10

DR. KUPPERMAN HAS STANDING. ........................................................................... 11
A.

Defendants Have Caused Dr. Kupperman To Be At
Substantial Risk of Violating His Constitutional Oath of Office. .........................13

B.

Defendants Have Placed Dr. Kupperman At Substantial Risk of
the Reputational Harm That Comes With Being Held in Contempt. ....................19

C.

Defendants Have Placed Dr. Kupperman At
Substantial Risk of Being Fined for Contempt. .....................................................23

III.

DR. KUPPERMAN’S SUIT IS NOT BARRED BY SOVEREIGN IMMUNITY. ..........29

IV.

DR. KUPPERMAN’S SUIT AGAINST THE PRESIDENT
IS NOT BARRED BY ABSOLUTE IMMUNITY. ..........................................................35

V.

DR. KUPPERMAN’S SUIT AGAINST THE HOUSE DEFENDANTS
IS NOT BARRED BY THE SPEECH OR DEBATE CLAUSE. .....................................43
A.

The Speech or Debate Clause Does Not Immunize the
Sergeant-at-Arms for Enforcing the Challenged Subpoena...................................44

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B.

VI.

The Speech or Debate Clause Does Not Preclude Suit When the Real
Parties in Interest Are the Two Co-Equal Political Branches of Our
Government............................................................................................................48

DR. KUPPERMAN STATES A CAUSE OF ACTION. ..................................................51

CONCLUSION ..............................................................................................................................54

ii

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TABLE OF AUTHORITIES
Cases

Page

Akron Bd. of Ed. v. State Bd. of Ed. of Ohio, 490 F.2d 1285 (6th Cir. 1974) ................................16
Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011).............................................................................52
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ...............................................................................7
Am. Bar Ass’n v. Fed. Trade Comm’n, 636 F.3d 641 (D.C. Cir. 2011) ..........................................7
Am. Petroleum Inst. v. EPA, 683 F.2d 382 (D.C. Cir. 2012) .........................................................10
*Anderson v. Dunn, 6 Wheat. (19 U.S.) 204 (1821) ..........................................................24, 25, 26
*Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) ..................................53, 54
Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017) ................................................................12
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ..................................21, 22, 28
Barker v. Conroy, 921 F.3d 1118 (D.C. Cir. 2019) .......................................................................12
Becker v. Fed. Election Comm’n, 230 F.3d 381 (1st Cir. 2000)....................................................13
Bell v. Hood, 327 U.S. 678 (1946).................................................................................................53
Bender v. Williamsport Area School District, 475 U.S. 534 (1986)..............................................18
*Board of Educ. of Central School District No. 1 v. Allen,
392 U.S. 236 (1968) .................................................................................................................16
Board of Educ. of Mt. Sinai Union Free Sch. Dist. v. New York State
Teachers Ret. Sys., 60 F.3d 106 (2d Cir. 1995) .......................................................................16
California v. Texas, 457 U.S. 164 (1982) ......................................................................................30
Chamber of Commerce of U.S. v. EPA, 642 F.3d 192 (D.C. Cir. 2011)........................................13
Chamber of Commerce of U.S. v. Reich, 57 F.3d 1099 (D.C. Cir. 1995) ......................................10
Citizens for Responsibility & Ethics in Washington v. Trump,
302 F. Supp. 3d 127 (D.D.C. 2018) .........................................................................................38
City of Houston v. HUD, 24 F.3d 1421 (D.C. Cir. 1994) ..............................................................10
City of Jersey City v. Consol. Rail Corp., 668 F.3d 741 (D.C. Cir. 2012) ....................................28
City of S. Lake Tahoe v. California Tahoe Reg’l Planning Agency,
449 U.S. 1039 (1980) ...............................................................................................................18
City of S. Lake Tahoe v. California Tahoe Reg’l Planning Agency,
625 F.2d 231 (9th Cir. 1980) ...................................................................................................18
City of S. Miami v. Desantis, 2019 WL 4752038 (S.D. Fla. Sept. 30, 2019) ................................16
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .....................................................................13
*Clarke v. United States, 705 F. Supp. 605 (D.D.C. 1988) .....................................................17, 18
iii

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Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) ....................................................7, 8, 9, 17
Clarke v. United States, 886 F.2d 404 (D.C. Cir. 1989) ................................................................17
*Clinton v. City of New York, 524 U.S. 417 (1998).......................................................................39
Cole v. Richardson, 405 U.S. 676 (1972) ......................................................................................15
Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013).....................33
*Commercial Union Ins. Co. v. United States, 999 F.2d 581 (D.C. Cir. 1993) ......................30, 52
Committee on Judiciary, U.S. House of Representatives v. Miers,
558 F. Supp. 2d 53 (D.D.C. 2008) .........................................................................11, 24, 33, 54
Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014) ...........................................................48
Consolidation Coal Co. v. Fed. Mine Safety & Health Review Comm’n,
824 F.2d 1071 (D.C. Cir. 1987) ...............................................................................................11
Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001) ...........................................................53
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ...........................................................................17
Davis v. FEC, 554 U.S. 724 (2008) ...............................................................................................12
Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013).......................................................................9
Delaware Riverkeeper Network v. Fed. Energy Regulatory Comm’n,
895 F.3d 102 (D.C. Cir. 2018) .................................................................................................53
District of Columbia Ass’n of Chartered Pub. Schs. v. District of Columbia,
930 F.3d 487 (D.C. Cir. 2019) .................................................................................................54
Doe v. Fed. Democratic Republic of Ethiopia, 851 F.3d 7 (D.C. Cir. 2017) ................................37
*Doe v. McMillan, 412 U.S. 306 (1973)..................................................................................44, 47
*Dombrowski v. Eastland, 387 U.S. 82 (1967) .................................................................44, 45, 46
Duberry v. District of Columbia, 924 F.3d 570 (D.C. Cir. 2019)..................................................12
Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985).................................................11
Eastland v. U. S. Servicemen's Fund, 421 U.S. 491 (1975)...........................................................49
Epperson v. Arkansas, 393 U.S. 97 (1968) ....................................................................................28
*Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) .............................................19, 20, 23
*Franklin v. Massachusetts, 505 U.S. 788 (1992)...................................................................35, 42
Free Enterprise Fund v. Public Company Accounting Oversight Board,
561 U.S. 477 (2010) .................................................................................................................53
*Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) ...........................................................................................................3, 4, 5
Gravel v. United States, 408 U.S. 606 (1972) ...................................................................45, 46, 47
Green v. Bock Laundry Mach. Co., 490 U.S. 504 .........................................................................52
iv

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Hardaway v. D.C. Hous. Auth., 843 F.3d 973 (D.C. Cir. 2016) ......................................................6
Hayburn’s Case, 2 Dallas (2 U.S.) 408 (1792) ..............................................................................25
*Hudson Savings Bank v. Austin, 479 F.3d 102 (2007).....................................................31, 32, 33
Hutto v. Finney, 437 U.S. 678 (1978) ............................................................................................25
In re Ctr. for Auto Safety, 793 F.2d 1346 (D.C. Cir. 1986) .............................................................7
In re Glob. Indus. Techs., Inc., 645 F.3d 201 (3d Cir. 2011)...................................................39, 40
In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) ..............................................................................15
Jurney v. MacCracken, 294 U.S. 125 (1935) ..................................................................................9
Keach v. County of Schenectady, 593 F.3d 218 (2d Cir. 2010) .....................................................20
Kifafi v. Hilton Hotels Ret. Plan, 701 F.3d 718 (D.C. Cir. 2012)................................................6, 7
*Kilbourn v. Thompson, 103 U.S. 168 (1880) ...................................................................25, 44, 45
Knox v. Service Employees Int’l, 567 U.S. 298 (2012)....................................................................8
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ..............................12
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................11, 12, 13, 18
Mackie v. Bush, 809 F. Supp. 144 (D.D.C. 1993) .........................................................................39
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..................................................................1, 14
McBryde v. Committee to Review Circuit Council Conduct & Disability Orders20
of Judicial Conference of U.S., 264 F.3d 52 (D.C. Cir. 2001)................................................20
McGrain v. Daugherty, 273 U.S. 135 (1927) ................................................................................24
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)...........................................................23
Meese v. Keene, 481 U.S. 465 (1987) ............................................................................................19
Meina Xie v. Tillerson, 2017 WL 2656648 (D.D.C. 2017) ...........................................................12
Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 (1886) .............................................................35, 39
Nat’l Ass’n of Home Builders v. Army Corps of Engineers,
417 F.3d 1272 (D.C. Cir. 2005) ...............................................................................................10
Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997)..........................4
New Hampshire Right to Life Political Action Comm. v. Gardner,
99 F.3d 8 (1st Cir. 1996) ..........................................................................................................28
Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005) ....................................................................41
*Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) ................................................36, 37, 38, 39
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ......................................................................................35
Orangeburg, S.C. v. FERC, 862 F.3d 1071 (D.C. Cir. 2017) ........................................................12
Ord v. District of Columbia, 587 F.3d 1136 (D.C. Cir. 2009).................................................28, 29
v

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Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) ....................................................29
Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) .................................6, 11
Peick v. Pension Ben. Guar. Corp., 724 F.2d 1247 (7th Cir. 1983) ..............................................16
Pollack v. Hogan, 703 F.3d 117 (D.C. Cir. 2012) .........................................................................34
Porteous v. Baron, 729 F. Supp. 2d 158 (D.D.C. 2010) ................................................................51
*Powell v. McCormack, 395 U.S. 486 (1969) .........................................................................44, 46
Pulphus v. Ayers, 909 F.3d 1148 (D.C. Cir. 2018) ........................................................................19
Qassim v. Bush, 466 F.3d 1073 (D.C. Cir. 2006) ............................................................................7
Rangel v. Boehner, 20 F. Supp. 3d 148 (D.D.C. 2013) .................................................................20
Regents of Univ. of Minnesota v. NCAA, 560 F.2d 352 (8th Cir. 1977) ........................................16
Rodearmel v. Clinton, 666 F. Supp. 2d 123 (D.D.C. 2009)...........................................................18
Sanders v. Armour Fertilizer Works, 292 U.S. 190 (1934) ...........................................................30
Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005)...................................................................29
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ............................................................31
SerVaas Inc. v. Mills, 661 F. App’x 7 (2d Cir. 2016) ....................................................................20
Smith v. Katzenbach, 351 F.2d 810 (D.C. Cir. 1965) ....................................................................31
Smith v. Obama, 217 F. Supp. 3d 283 (D.D.C. 2016) ...................................................................18
Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng.Rep. 1112 (K.B.1839) ...........................................45
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ........................................................10, 11
*Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996)........................................................33, 35, 37, 39
True the Vote, Inc. v. Internal Rev. Serv., 831 F.3d 551 (D.C. Cir. 2016) ..................................4, 5
Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019) ........................................................25
Turkish Coal. of America, Inc. v. Bruininks, 678 F.3d 617 (8th Cir. 2012) ..................................19
U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2015) .............................33
U.S. House of Representatives v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019) .............................33
U.S. House of Representatives v. U.S. Dep’t of Commerce,
11 F. Supp. 2d 76 (D.D.C. 1998) .............................................................................................33
United States v. Am. Tel. & Tel. Co., 567 F.2d 121 (D.C. Cir. 1977) ...........................................49
*United States v. Am. Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976) .........................................48
*United States v. Lee, 720 F.2d 1049 (9th Cir. 1983) ...................................................................20
United States v. Oregon State Med. Soc., 343 U.S. 326 (1952) ......................................................6
United States v. Schrimsher, 493 F.2d 842 (5th Cir. 1974) ...........................................................20
United States v. U.S. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) .......................33
vi

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United States v. W. T. Grant Co., 345 U.S. 629 (1953) ...................................................................6
Washington All. of Tech. Workers v. United States Dep’t of Homeland Sec.,
892 F.3d 332 (D.C. Cir. 2018) .................................................................................................12
Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012) ............................................................12
Young v. Higbee Co., 324 U.S. 204 (1945)....................................................................................30
Constitutions, Statutes and Rules
U.S. CONST.
art. I, § 6 ...................................................................................................................................43
art. III, §§ 1, 2 ..........................................................................................................................41
5 U.S.C. § 3331 ..............................................................................................................................14
28 U.S.C. § 1335 ............................................................................................................................51
FED. R. CIV. P. 22(b) ......................................................................................................................52
Other Authorities
1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary
(West 2019) ..............................................................................................................................52
13B Charles A. Wright & Arthur R. Miller, FED. PRAC. & PROC. JURIS. (3d ed.)
§ 3531.11.3...............................................................................................................................17
§ 3532.5....................................................................................................................................28
3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1838 (1833) .....................................14
9 William Holdsworth, A History of English Law (3d ed. 1944) ..................................................40
Ari Shapiro, Rep. Adam Schiff Reacts to Acting Director of National Intelligence’s
Testimony, NPR (Sept. 26, 2019), https://n.pr/2QvLlPa .........................................................22
Brief for the United States, Hudson Savings Bank, 479 F.3d 102
(No. 06-2043), 2006 WL 3888643 ..........................................................................................33
Chris Mills Rodrigo, House Intel Dem: Giuliani could be held in inherent contempt
if he ignores subpoena, THE HILL (Sept. 30, 2019), https://bit.ly/2XeeBeE ...........................26
Clare Foran and Ashley Killough, House votes to hold Barr, Ross in criminal contempt
over census dispute, CNN (July 17, 2019), https://cnn.it/37hCs1v .........................................21
Cristina Marcos, Pelosi: Lewandowski should have been held in contempt ‘right
then and there,’ THE HILL (Sept. 18, 2019), https://bit.ly/2CRd1WF .....................................22
Dep. of Charles Kupperman, Permanent Select Comm. on Intel., joint with the Comm. On
Oversight and Reform and the Comm. On Foreign Aff., 116 Cong. (Oct. 28, 2019),
https://bit.ly/37JZoqg. ..............................................................................................................22
Elizabeth Thomas, Democrats looking at imposing daily contempt fines on Trump officials,
Rep. Adam Schiff says, ABC NEWS (May 10, 2019), https://abcn.ws/37agUDQ ....................22

vii

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ERSKINE MAY, TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF
PARLIAMENT (25th ed. 2019) ...................................................................................................26
Frank H. Easterbrook, Textualism and the Dead Hand,
66 GEO. WASH. L. REV. 1119 (1998) .......................................................................................14
HAROLD M. HYMAN, TO TRY MEN’S SOULS: LOYALTY TESTS IN AMERICAN
HISTORY (1959)........................................................................................................................14
Heather Cayble and Kyle Cheney, Pelosi hints at contempt charges against multiple
Trump associates, POLITICO (May 9, 2019), https://politi.co/2rYgKzz ..................................22
House Rule II, clause 3(a), Rules of the House of Representatives: One Hundred Sixteenth
Congress 2 (Jan. 11, 2019), https://bit.ly/2DiQNNt. ...............................................................44
Jason Lemon, Rashida Tlaib Says Democrats Had “Actual Serious Conversations”
About Detaining Trump Officials, NEWSWEEK (Oct. 13, 2019) ..............................................26
Kylie Atwood and Jeremy Herb, Democrats threaten NSC official with contempt as
more depositions scheduled for next week, CNN (Oct. 26, 2019),
https://cnn.it/32YcEE7 .............................................................................................................22
Letter from Joseph Story to Ezekiel Bacon (Nov. 19, 1842), in LIFE AND
LETTERS OF JOSEPH STORY (William W. Story ed. 1851)........................................................15
Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity,
77 Harv. L. Rev. 1 (1963) ..................................................................................................40, 42
Ludwik Ehrlich, “Proceedings Against the Crown (1216-1377),” in 6 Oxford Studies in
Social and Legal History (Paul Vinogradoff ed., 1921) ..........................................................40
Points and Authorities in Supp. of Pls.’ Mot. for Summ. Judgment and in Opp. to Defs.’
Mot. to Dismiss, United States v. House of Representatives, et al.,
No. 82-3583 (1983) ..................................................................................................................21
Rachel Bade and Josh Dawsey, “We’ve been very weak”: House Democrats decry their
oversight of Trump, push Pelosi on impeachment, WASH. POST (Sept. 22, 2019),
https://wapo.st/33JMBlf ...........................................................................................................26
Sam Brodey, Dems Torn Over How Much to Punish Rudy Giuliani for Ignoring Subpoena,
DAILY BEAST (Oct. 16, 2019), https://bit.ly/2OaYPNb ...........................................................26
The ACA’s Cost Sharing Reduction Program: Ramifications of the Administration’s Decision
on the Source of Funding for the CSR Program: Hearing Before the H. Subcmte. on
Oversight and Investigations of the Energy and Commerce Cmte.,
114th Cong. 30 (2016) (statement of Morton Rosenberg, Legislative Consultant).................27
TODD GARVEY, CONGRESS’S CONTEMPT POWER AND THE ENFORCEMENT OF CONGRESSIONAL
SUBPOENAS: LAW, HISTORY, PRACTICE, AND PROCEDURE (2017) ...............................24, 27, 44
TODD GARVEY, CONGRESSIONAL SUBPOENAS: ENFORCING EXECUTIVE BRANCH
COMPLIANCE (2019) .................................................................................................................28
William Holdsworth, The History of Remedies Against the Crown,
38 L.Q. Rev. 141 (1922) ..........................................................................................................41
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INTRODUCTION
Both the House Defendants and the President have inundated this Court with a host of
arguments for why the Court should not reach and resolve the merits of the Constitutional question
raised by the conflicting commands presented by the issuance of the House subpoena to Dr.
Kupperman and the President’s instruction that Dr. Kupperman not appear and testify in response
to the subpoena. But neither the House nor the President has an answer to our central submission
on justiciability. Neither denies that this case presents an irreconcilable Constitutional conflict
between the Executive and Legislative Branches of our Government. But if the Court accepts their
entreaties to dismiss the case without reaching the merits, Dr. Kupperman will be forced to himself
decide this grave Constitutional question. Neither the House nor the President has offered any
explanation for why such a question should be decided by a private citizen rather than by the
Judicial Department—the Branch entrusted by the Constitution with the duty “to say what the law
is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
In the pages that follow, we demonstrate that each of the arguments submitted by the House
Defendants and the President against reaching the merits is wrong.
STATEMENT
Dr. Kupperman served as Deputy National Security Advisor and Assistant to the President
from January 9, 2019, to September 20, 2019, and as the Acting National Security Advisor from
September 10, 2019, to September 20, 2019. Complaint, Doc. 1, at ¶ 13 (Oct. 25, 2019). Dr.
Kupperman performed his duties as a close personal advisor to President Trump, advising him
with respect to national security policy toward Ukraine and coordinating national security policy
among the relevant Executive Branch agencies. Id.

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On Friday, October 25, 2019, the House Permanent Select Committee on Intelligence
(“HPSCI”) issued a subpoena to Dr. Kupperman, compelling him to appear before HPSCI, the
House Committee on Foreign Affairs, and the House Committee on Oversight and Reform for a
deposition on the following Monday, October 28, 2019. Id. at ¶¶ 14–15. The electronic message
from Committee counsel transmitting the subpoena to Dr. Kupperman’s counsel explained that
“[t]he testimony shall be part of the House’s impeachment inquiry and shared among the
Committees, as well as with the Committee on the Judiciary as appropriate.” Complaint Exhibit
A, Doc. 1-1, at 1.
Because the subpoena seeks testimony concerning Dr. Kupperman’s service as a senior
advisor to the President, Dr. Kupperman’s counsel provided the White House Counsel with a copy,
requesting that White House Counsel notify him of the President’s position on the subpoena.
Complaint, Doc. 1, at ¶ 17. The White House Counsel, in a letter to Dr. Kupperman’s counsel on
October 25, 2019, informed Dr. Kupperman that the Office of Legal Counsel of the Department
of Justice had “advised [him] that [Plaintiff] is absolutely immune from compelled congressional
testimony with respect to matters related to his service as a senior adviser to the President.”
Complaint Exhibit B, Doc. 1-2, at 1. As a result, the White House Counsel notified Dr. Kupperman
that “in order to protect the prerogatives of the Office of President today and in the future … the
President directs Mr. Kupperman not to appear at the Committee’s scheduled hearing on Monday,
October 28, 2019.” Id. at 2.
Dr. Kupperman filed this action on October 25, 2019, and it was assigned to this Court on
October 28. On November 5, 2019, HPSCI withdrew its subpoena to Dr. Kupperman. See House
Defendants’ Notice of Mootness Exhibit A (“House Withdrawal Letter”), Doc. 22-1, at 1 (Nov. 6,
2019). The next day, the House Defendants moved to vacate the briefing schedule, arguing that

2

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the matter is moot. See House Defendants’ Notice of Mootness, Doc. 22 (Nov. 6, 2019). On
November 6, 2019, the Court denied that request in a telephonic status conference, instructing the
parties to address the mootness issue in their briefing on the motions to dismiss. See Transcript of
Nov. 6, 2019 Status Conference at 6–7.
On November 14, 2019, the defendants filed motions to dismiss the complaint. See
Defendant President Donald J. Trump’s Motion to Dismiss or, In the Alternative, Motion for
Summary Judgment (“President MTD”), Doc. 40 (Nov. 14, 2019); House Defendants’ Motion To
Dismiss (“House MTD”), Doc. 41 (Nov. 14, 2019). On November 27, 2019, Dr. Kupperman filed,
along with this brief, a motion pursuant to FED. R. CIV. P. 21 to join the Honorable Paul D. Irving,
in his official capacity as Sergeant-at-Arms of the United States House of Representatives, as an
additional House Defendant.
ARGUMENT
I.

DR. KUPPERMAN’S SUIT IS NOT MOOT.
A.

The House Defendants’ Voluntary Cessation of
Allegedly Unlawful Conduct Does Not Moot Plaintiff’s Suit.

It is “well settled that ‘a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.’” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). To discourage gamesmanship, the Supreme
Court has emphasized that the test for establishing mootness after a defendant voluntarily abandons
its allegedly unlawful conduct is “stringent.” Id. That test requires proof that “subsequent events
[have] made it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Id. (emphasis added) (quoting United States v. Concentrated Phosphate Export
Ass’n, 393 U.S. 199, 203 (1968)). Moreover, the “‘heavy burden of persua[ding]’ the court that
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the challenged conduct cannot reasonably be expected to start up again lies with the party asserting
mootness.” Id. (quoting Concentrated Phosphate Export Ass’n, 393 U.S. at 203) (alteration in
Friends of the Earth, Inc.); see also True the Vote, Inc. v. Internal Revenue Serv., 831 F.3d 551,
561 (D.C. Cir. 2016).
The House Defendants have not come close to meeting their “heavy burden.” The House’s
letter withdrawing the subpoena said not one word suggesting that the subpoena would not be reissued following dismissal of this case. To the contrary, the House Defendants wrote that they
“expect” that Dr. Kupperman will “be guided by the decision in McGahn.” See House Withdrawal
Letter at 1. But as the House Defendants also acknowledged, the question to be decided in McGahn
is whether an Executive assertion of “absolute immunity” on behalf of a close presidential advisor
overrides a congressional subpoena. Id. Judicial resolution of that question is only relevant to Dr.
Kupperman if he is subject to a House subpoena, like Donald McGahn. Unless the House
Defendants anticipated that Plaintiff would once again face a congressional subpoena, they would
have no reason to “expect” Plaintiff’s conduct to change in light of the McGahn litigation. This
plain indication that the subpoena to Dr. Kupperman may be re-issued forecloses House
Defendants from carrying their “heavy burden” that it is “absolutely clear” that Plaintiff will not
eventually be subpoenaed yet again. Friends of the Earth, 528 U.S. at 170. Rather, the House
Defendants’ letter provides strong “evidence indicating that the challenged [action] likely will be
reenacted.” Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997).
The House Defendants’ intention is confirmed by their reminder to Dr. Kupperman that he
“still has an opportunity to fulfill his solemn constitutional duty” to appear and testify before the
House committees. House Withdrawal Letter, Doc. 22-1 at 2. Absent a subpoena, Dr. Kupperman
has no duty—neither “solemn,” nor “constitutional,” nor otherwise—to appear and testify. It

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necessarily follows that the House Defendants anticipate re-issuing the subpoena after this case is
dismissed.
The House Defendants’ carefully worded representations to this Court confirm that they
cannot meet the high bar to show mootness in voluntary cessation cases. In their initial notice of
mootness, they stated only that they had “no current intention to reissue” the subpoena. House
Defendants’ Notice of Mootness, Doc. 22, at 1 (emphasis added). In opposing Mr. Mulvaney’s
motion to intervene the House Defendants noted that “given the status of the House’s impeachment
inquiry, the House Defendants ha[d] determined that they will not reissue a subpoena to” Plaintiff.
House Defendants.’ Opposition to Motion To Intervene (“House Opposition To Mulvaney”), Doc.
29, at 1 (Nov. 11, 2019) (emphasis added). And in their motion to dismiss, they further assert,
apparently based on their statement in the opposition to Mulvaney’s motion to intervene, that “the
House Defendants have represented that they will not reissue a subpoena to Kupperman.” House
MTD, Doc. 41, at 7.
While the House Defendants, through counsel, have now made statements asserting that
the House may not reissue a subpoena against Plaintiff, the House Defendants have nevertheless
failed to prove that “it [is] absolutely clear that the[ir] allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc., 528 U.S. at 189 (emphasis added).
The clear discontinuity between the letter from the House Defendants themselves and their
counsel’s representations before this Court precludes the conclusion that the House Defendants
have carried their “heavy burden” of demonstrating the “absolute” clarity demanded by the
Supreme Court. The thrust of the House’s letter was obvious: Dr. Kupperman is in the clear . . .
for now. That assurance alone does not come close to satisfying the voluntary cessation doctrine.
See True the Vote, Inc., 831 F.3d at 563 (“A violation of right that is ‘suspended until further

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notice’ has not become the subject of voluntary cessation, with no reasonable expectation of
resumption, so as to moot litigation against the violation of rights. Rather, it has at most advised
the victim of the violation—‘you’re alright for now, but there may be another shoe falling.’”). The
letter’s ominous subtext is that Plaintiff’s relief is temporary because, at some point, the
Committee fully expects Plaintiff to involuntarily come before the House. There is therefore no
way one could reasonably read the letter to show, with the requisite absolute clarity, that Plaintiff
cannot reasonably expect to receive another subpoena.
The post-letter assertions made by counsel for the House Defendants that they have
determined that it is not in the House’s interest—“given the status of House’s impeachment
inquiry”—to reissue a subpoena are simply not the kind of statements that establish mootness. It
is a bedrock principle of the mootness doctrine that such bald assurances are not enough. For
example, in the seminal mootness case United States v. W. T. Grant Co., 345 U.S. 629 (1953), the
defendant “disclaimed any intention” of reviving its allegedly wrongful conduct and the Supreme
Court made clear that “[s]uch a profession does not suffice to make a case moot.” Id. at 633. And
the D.C. Circuit has, time and time again, rejected defendants’ “meager” promises not to engage
in the challenged conduct without additional, compelling evidence to back up the promise.
Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980 (D.C. Cir. 2016); see also Kifafi v. Hilton Hotels
Ret. Plan, 701 F.3d 718, 725 (D.C. Cir. 2012); Payne Enterprises, Inc. v. United States, 837 F.2d
486, 491–92 (D.C. Cir. 1988). Mootness arises only where a defendant demonstrates a “changed
attitude,” consisting not “merely of pretensions or promises,” but also an “overt and visible
reversal of policy, carried out by extensive operations which have every appearance of being
permanent.” United States v. Oregon State Med. Soc., 343 U.S. 326, 334 (1952).

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The House Defendants cannot credibly argue that they have a “changed attitude” about
Plaintiff’s suit. They continue to maintain that Plaintiff has a constitutional duty to testify and they
expect him to be “guided” by the ultimate outcome of McGahn—a suit in which they vigorously
argue that advisors like Dr. Kupperman must testify if subpoenaed by the Committee. See In re
Ctr. for Auto Safety, 793 F.2d 1346, 1353 (D.C. Cir. 1986) (“[W]hen a complaint identifies official
conduct as wrongful and the legality of that conduct is vigorously asserted by the officers in
question, the complainant may justifiably project repetition . . . .” (quotation omitted)).
Moreover, the “meager” assurance offered by counsel that the House will not subpoena Dr.
Kupperman in the future is clearly contingent; it is based entirely on the current “status of the
House’s impeachment inquiry.” House Opposition to Mulvaney, Doc. 29 at 1. But promises
centered on present circumstances provide cold comfort, particularly in the context of an
impeachment inquiry that provides new and often unpredictable revelations on a daily basis. In
this highly volatile context, the current prediction of counsel that the House Defendants will not
subpoena Plaintiff again does not begin to carry the heavy burden of showing mootness. See Kifafi,
701 F.3d at 725 (“[D]efendant has given us little reason to think its intentions are a good predictor
of reality.”).
Often, a defendant’s voluntary cessation is done “in order to avoid litigation” or “judicial
review” altogether. Am. Bar Ass’n v. Fed. Trade Comm’n, 636 F.3d 641, 648 (D.C. Cir. 2011);
Qassim v. Bush, 466 F.3d 1073, 1075 (D.C. Cir. 2006). That tactic, if unchecked, would permit a
defendant to “manipulat[e] the judicial process” to “secur[e] freedom to ‘return to his old ways.’”
Clarke v. United States, 915 F.2d 699, 705 (D.C. Cir. 1990) (en banc) (quoting W. T. Grant Co.,
345 U.S. at 632); see also Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (explaining that
without the voluntary cessation doctrine, “a defendant could engage in unlawful conduct, stop

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when sued to have the case declared moot, then pick up where he left off, repeating this cycle until
he achieves all his unlawful ends”).
The House Defendants here are arguably engaged in an even worse form of manipulation.
Their voluntary cessation is not designed to avoid judicial review altogether. Rather, as the
House’s letter explicitly acknowledges, the purpose of the House Defendants’ gambit is to ensure
that the merits of this interbranch dispute is settled in McGahn rather than by this Court. See House
Withdrawal Letter, Doc. 22-1 at 1. And, sure enough, just days ago the McGahn court issued
precisely the favorable ruling that the House Defendants sought. See Memorandum Opinion, Doc.
46, Comm. on the Judiciary v. McGahn, No. 19-02379, (D.C. Cir. Nov. 25, 2019) (“McGahn Slip
Op.”). Plaintiff respectfully submits that the House Defendants’ transparent attempt to manipulate
the judicial process cannot, and should not, render this case moot. While courts must surely
proceed with caution in imputing manipulative intent to other federal officials, Clarke, 915 F.2d
at 705, 1 the evidence here sufficiently shows a reasonable probability that the House Defendants
have sought to moot this case for strategic reasons. The voluntary cessation doctrine therefore
applies.
B.

Dr. Kupperman’s Suit Is Not Moot Because a Live Controversy
Exists on Whether He Could Be Held in Contempt
for His Conduct While the Subpoena Was Outstanding.

Plaintiff’s suit is not moot for a second, independent reason. “A case becomes moot only
when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”

1

The House Defendants cite two cases in which the Court of Appeals has accepted
government representations regarding future intent not to proceed with challenged conduct. See
House MTD, Doc. 41, at 7 n.1. But those precedents are clearly inapposite because in neither did
the government express any contradictory intent in other writings or statements. Here, however,
the House’s letter to Plaintiff clearly undermines the representations that the House Defendants
have made through counsel to this Court.
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Knox v. Serv. Emps. Int’l, 567 U.S. 298, 307 (2012) (internal quotation marks omitted). Although
the House Defendants now represent to this Court that they have no intent to reissue a subpoena
to Dr. Kupperman, they make no representation regarding how they intend to treat Plaintiff in light
of his decision not to immediately comply with the prior subpoena. The House’s letter to Dr.
Kupperman intimates that the House Defendants view his conduct as an effort “to delay or
otherwise obstruct the Committees’ vital investigatory work.” House Withdrawal Letter, Doc. 221, at 2. Regardless of whether Plaintiff is subject to a live subpoena, the House Defendants have
given no assurance that they will not punish him for his decision not to immediately comply with
the prior subpoena. And the Supreme Court has made clear that “a live controversy continues to
exist” when there is a real “possibility of some remedy for a proven past violation.” Decker v. N.W.
Envtl. Def. Ctr., 568 U.S. 597, 609–10 (2013). That possibility exists here.
It is well settled that Congress’s inherent contempt authority includes not just the power to
coerce individuals to comply with existing congressional demands, but also to punish those who
have defied Congress, even when the act of non-compliance no longer threatens the legislative
process. See Jurney v. MacCracken, 294 U.S. 125, 152 (1935). And, as described below, various
Members of the House have expressed serious interest in wielding Congress’s inherent contempt
power to advance the present impeachment inquiry. See infra Part II.C. While some Members have
raised the prospect of inherent contempt only to secure compliance with extant congressional
commands, others have made statements that arguably evince more punitive aims. See id.
(collecting statements). The House Defendants’ silence regarding Plaintiff’s liability for his past
allegedly “obstruct[ive]” conduct therefore falls well short of proffering a “formal legal concession
of the existence of a complete defense” against a future inherent contempt proceeding. Clarke, 915
F.2d at 702. A sufficiently live controversy therefore exists, thus foreclosing mootness.

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C.

Prudential Ripeness Considerations Do Not
Preclude this Court from Considering Plaintiff’s Suit.

Finally, the House Defendants argue that even if Plaintiff’s case is not constitutionally
moot, his claim nevertheless does not present a “justiciable controversy” because it is not
prudentially ripe. House MTD, Doc. 41, at 44. For starters, it is not clear whether the “prudential
ripeness” factors cited by the House Defendants should have any role in this Court’s justiciability
analysis. As the Supreme Court recently reiterated, to the extent that courts are asked to deem
claims nonjusticiable “on grounds that are ‘prudential,’ rather than constitutional, that request is
in some tension with [the Court’s] recent reaffirmation of the principle that a federal court’s
obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (quotations omitted). In any event, the
prudential ripeness factors—the “fitness of the issues for judicial decision” and “the extent to
which withholding a decision will cause hardship to the parties,” Am. Petroleum Inst. v. EPA, 683
F.3d 382, 387 (D.C. Cir. 2012) (quotation marks omitted)—do not favor dismissal here.
First, the “fitness of an issue for judicial decision depends on whether it is purely legal,”
and “whether consideration of the issue would benefit from a more concrete setting.” Nat’l Ass’n
of Home Builders v. Army Corps of Eng’rs, 417 F.3d 1272, 1281 (D.C. Cir. 2005). Purely legal
questions are “presumptively [fit] for judicial review.” City of Houston v. HUD, 24 F.3d 1421,
1431 (D.C. Cir. 1994). The constitutional dispute between the House and President is indeed
purely legal and the answer to the legal question here will not become clearer in a more concrete
setting, if there is such a setting. Nor have the House Defendants shown that “deferring
consideration might eliminate the need for [judicial] review altogether.” Chamber of Commerce
of U.S. v. Reich, 57 F.3d 1099, 1100 (D.C. Cir. 1995). In fact, the very existence of the McGahn

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litigation shows that judicial review of this question is already underway at the behest of House
Defendants themselves.
Second, because Plaintiff’s suit presents a “purely legal question,” for which neither the
House Defendants nor this Court “has a significant interest in postponing review,” this Court “need
not proceed” to consider the hardship to Plaintiff by deferring review. Eagle-Picher Indus., Inc. v.
EPA, 759 F.2d 905, 915, 918 (D.C. Cir. 1985); see also Consolidation Coal Co. v. Fed. Mine
Safety & Health Review Comm’n, 824 F.2d 1071, 1082 (D.C. Cir. 1987) (“[W]hen there are no
interests favoring postponement of review, there can be no prudential reason to require the
petitioner to demonstrate an additional quantum of injury caused by deferring review.”). Because
“nothing would be gained by postponing [this issue’s] resolution,” Payne Enterprises, Inc., 837
F.2d at 492, either for this Court or for the House Defendants, “[i]t is enough that [Plaintiff] show
that [he] has suffered sufficient hardship to pass the Article III threshold,” Consolidation Coal Co.,
824 F.2d at 1081. As described below, Plaintiff has satisfied the requirements of Article III. See
infra Part II. Ripeness therefore poses no additional barrier to judicial review. See Comm. on
Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 65 n.10 (D.D.C. 2008).
II.

DR. KUPPERMAN HAS STANDING.
“The irreducible constitutional minimum of standing contains three elements.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.” Id. (citations and quotation marks omitted).
“An allegation of future injury may suffice if the threatened injury is certainly impending, or there
is a substantial risk that the harm will occur.” Susan B. Anthony List, 573 U.S. at 158 (quotation
marks omitted); see also Attias v. Carefirst, Inc., 865 F.3d 620, 626–27 (D.C. Cir. 2017). Second,
the plaintiff must demonstrate causation: “the injury has to be fairly . . . trace[able] to the
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challenged action of the defendant.” Lujan, 504 U.S. at 560 (quotation marks omitted). Because
“[p]roximate causation is not a requirement of Article III standing,” see Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 134 n.6 (2014), there can be multiple causes of the same
cognizable injury, see Orangeburg, S.C. v. FERC, 862 F.3d 1071, 1080 (D.C. Cir. 2017)
(collecting authorities). Finally, there must be a showing of redressability: “it must be likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan,
504 U.S. at 561 (quotation marks omitted). While “analytically distinct” from causation,
redressability and causation “are closely related[,] like two sides of a coin.” Duberry v. District of
Columbia, 924 F.3d 570, 581 (D.C. Cir. 2019) (alteration in original).
At the pleading stage, “plaintiffs are required only to state a plausible claim that each of
the standing elements is present.” Attias, 865 F.3d at 625 (quotation marks omitted) (emphasis
added). In making that assessment, courts may consider facts outside the complaint. See
Washington All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 340 (D.C. Cir.
2018); Meina Xie v. Tillerson, 2017 WL 2656648 at *5 (D.D.C. 2017) (Leon, J.). However,
“standing is assessed at the time of filing.” Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C.
Cir. 2012); see also Lujan, 504 U.S. at 570 n.5. Thus, contrary to the President’s assertions, see
President MTD, Doc. 40 at 11–12, 16, while the House Defendants’ withdrawal of their subpoena
against Dr. Kupperman might be relevant to assessing mootness, see supra, it has no bearing on
whether Dr. Kupperman had standing at the outset of this litigation. See Davis v. FEC, 554 U.S.
724, 733–36 (2008) (holding that plaintiff had standing to bring a future-injury challenge based on
facts as they existed at the time the complaint was filed, even though subsequent events negated
his threatened injury, and instead analyzing those subsequent events under a mootness framework);
Barker v. Conroy, 921 F.3d 1118, 1125 (D.C. Cir. 2019) (disregarding a key post-complaint factual

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assertion by the defendant in holding that standing existed); Chamber of Commerce of U.S. v. EPA,
642 F.3d 192, 199 (D.C. Cir. 2011).
That is presumably why the House Defendants (correctly) focus exclusively on mootness
when addressing the ostensible relevance of the withdrawn subpoena. See Becker v. Fed. Election
Comm’n, 230 F.3d 381, 387 n.3 (1st Cir. 2000). Accordingly, the standing analysis below assumes
“the facts existing when the complaint [was] filed,” Lujan, 504 U.S. 569 n.4, when there was a
subpoena pending against Dr. Kupperman, see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 426
(2013) (Breyer, J., dissenting) (observing that facts arising after the complaint “are irrelevant, for
we assess standing as of the time a suit is filed”).
Although the President argues at length that Dr. Kupperman lacks standing based on the
threat of prosecution for contempt by the Executive Branch or based on the threat of a civil
enforcement suit, see President MTD, Doc. 40, at 13–15, 16–25, Dr. Kupperman does not press
those arguments here. Rather, Dr. Kupperman has standing based on three independent cognizable
injuries: (1) the substantial risk that, if he is required to decide the constitutional question himself,
he will err and thus violate his oath of office; (2) the substantial risk of reputational damage as a
result of being held in contempt; and (3) the substantial risk of being fined under the House’s
inherent contempt authority. Defendants have not yet addressed either of the first two injuries. All
three injuries are caused by the actions of both the President and the House Defendants, and all
three injuries would be redressed by a declaratory judgment issued by this Court.
A.

Defendants Have Caused Dr. Kupperman To Be At
Substantial Risk of Violating His Constitutional Oath of Office.

Defendants have placed Dr. Kupperman at a substantial and imminent risk of violating his
oath of office. Article VI of the U.S. Constitution states: “[A]ll executive and judicial Officers,

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both of the United States and of the several States, shall be bound by Oath or Affirmation, to
support this Constitution.” Federal law sets forth the oath that Dr. Kupperman took:
“I, AB, do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and domestic; that I
will bear true faith and allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to enter. So help
me God.”
5 U.S.C. § 3331.
From the beginning of the Republic, an oath of office has been seen as a critical guarantee
of constitutional government. As George Washington said to John Hancock in 1777:
From the first institution of civil government, it has been the national policy of
every precedent State to . . . engage its members to the discharge of their duty by
the obligation of some oath. Its force and happy influence have been felt in too
many instances to need any arguments to support the policy or prove its
utility . . . . An oath is the only substitute that can be adopted to supply the defect
of principle. 2
Justice Joseph Story emphasized that “[o]aths have a solemn obligation upon the minds of all
reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme
being.” 3 Indeed, the seriousness of the constitutional oath of office “was an important part of Chief
Justice Marshall’s account of judicial review in Marbury v. Madison.” 4 Chief Justice Marshall
argued that judges were required by their oath to hold a statute unconstitutional if they believed it
to be so:
Why does a judge swear to discharge his duties agreeably to the constitution of the
United States, if that constitution forms no rule for his government? If it is closed
upon him, and cannot be inspected by him? If such be the real state of things, this
2

HAROLD M. HYMAN, TO TRY MEN’S SOULS: LOYALTY TESTS IN AMERICAN HISTORY 80

3

3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1838 (1833).

(1959).
4

Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119,
1122 (1998).
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is worse than solemn mockery. To prescribe, or to take this oath, becomes equally
a crime.
Marbury, 5 U.S. (1 Cranch) at 180; see also Cole v. Richardson, 405 U.S. 676, 684 (1972). For
that reason, the D.C. Circuit has described the oath as “a solemn undertaking, a binding of the
person to the cause of constitutional government, an expression of the individual’s allegiance to
the principles embodied in that document.” In re Lindsey, 158 F.3d 1263, 1273 (D.C. Cir. 1998)
(per curiam). In Justice Story’s words, public officials who take the oath “cannot forget or
repudiate [their] solemn obligations at pleasure.” 5
Like all executive officers, Dr. Kupperman swore the solemn oath required by the
Constitution and federal statute when he assumed the office of Deputy National Security Advisor.
Complaint, Doc. 1, at ¶¶ 2, 40. Forcing Dr. Kupperman to choose between obeying the subpoena
issued by the House or the President’s instruction to Dr. Kupperman not to comply with it will
create a significant risk that Dr. Kupperman will choose incorrectly and will thus violate his oath
to “bear true faith and allegiance” to the Constitution. If Dr. Kupperman elects to testify but the
President had the constitutional authority to prevent his testimony, Dr. Kupperman would be
violating his oath by defying a Constitutional presidential order binding on him as the former
Deputy National Security Advisor. If Dr. Kupperman elects not to testify but the House had the
constitutional authority to compel his testimony, Dr. Kupperman would be violating his oath by
defying a Constitutional congressional subpoena directed at him by virtue of his former office.
Indeed, in their November 5, 2019, letter to Dr. Kupperman, the House Defendants
acknowledged that Dr. Kupperman’s oath of office is at stake. See House Withdrawal Letter, Doc.
22-1 at 2 (“Dr. Kupperman still has an opportunity to fulfill his solemn constitutional duty.”).

5

Letter from Joseph Story to Ezekiel Bacon (Nov. 19, 1842), in LIFE AND LETTERS OF
JOSEPH STORY 431 (William W. Story ed. 1851).
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Without knowing which branch of the Federal Government has the lawful authority to prescribe
his actions in this context, Dr. Kupperman is at imminent and substantial risk of violating his
solemn oath of office by choosing an unconstitutional course of action. Under longstanding
Supreme Court precedent, that is a cognizable injury for purposes of Article III.
In Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 238 (1968),
a New York law “requir[ed] local public school authorities to lend textbooks free of charge to all
students in grades seven through 12; students attending private schools [were] included.” The
Board, believing that this statutory mandate violated the Establishment and Free Exercise Clauses,
sued the state commissioner of education and sought a declaratory judgment. Id. at 240–41. In
analyzing standing, the Supreme Court held:
Appellees do not challenge the standing of appellants to press their claim in this
Court. Appellants have taken an oath to support the United States Constitution.
Believing § 701 to be unconstitutional, they are in the position of having to choose
between violating their oath and taking a step—refusal to comply with § 701—that
would be likely to bring their expulsion from office and also a reduction in state
funds for their school districts. There can be no doubt that appellants thus have a
‘personal stake in the outcome’ of this litigation.
Id. at 241, n.5. Thus, because the defendant had placed the Board in the position of potentially
violating their constitutional oath, the Supreme Court held that the Board had standing.
The oath that the Board swore in Allen is the same oath that Dr. Kupperman swore, and
just as being put at risk of violating that oath sufficed to establish standing in Allen, it suffices to
establish standing here. See also Bd. of Educ. of Mt. Sinai Union Free Sch. Dist. v. N.Y. State
Teachers Ret. Sys., 60 F.3d 106, 112 (2d Cir. 1995); Regents of Univ. of Minn. v. NCAA, 560 F.2d
352, 363–64 (8th Cir. 1977), abrogated on other grounds by NCAA v. Tarkanian, 488 U.S. 179
(1988); Peick v. Pension Ben. Guar. Corp., 724 F.2d 1247, 1260 & n.14 (7th Cir. 1983); Akron
Bd. of Ed. v. State Bd. of Ed. of Ohio, 490 F.2d 1285, 1291 (6th Cir. 1974); City of S. Miami v.

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DeSantis, 2019 WL 4752038, at *15 (S.D. Fla. Sept. 30, 2019); 13B CHARLES A. WRIGHT &
ARTHUR R. MILLER, FED. PRAC. & PROC. JURIS. § 3531.11.3 (3d ed. 2019). Nor can there be any
doubt that Defendants caused Dr. Kupperman’s injury, since they issued the conflicting commands
that have placed him on the horns of his constitutional dilemma. And this injury will be fully
redressed by a declaratory judgment clarifying Dr. Kupperman’s constitutional obligations.
Significantly, this would not be the first time that this Court has held that public officials
had standing based on the risk of being forced to violate their oaths. In Clarke v. United States,
Congress enacted a law conditioning all of D.C.’s federal funds on the City Council’s passage of
a statute providing that the city’s human rights law did not require religious educational institutions
to disburse funds or benefits to groups “promoting, encouraging, or condoning any homosexual
act, lifestyle, [etc.].” 705 F. Supp. 605, 607 (D.D.C. 1988). The council members sued the United
States, raising several constitutional challenges to the statute. The Court, in an opinion by Judge
Lamberth, held that the plaintiffs had standing under Allen: “Because Congress has conditioned
all District funds on the Council’s vote, the Council members must either vote in a way which they
believe violates their oaths, or face almost certain loss of their salaries and staffs as well as water,
police and fire protection.” Id. at 608. 6 The same reasoning applies here and establishes Dr.
Kupperman’s standing to sue Defendants who have placed him at imminent and substantial risk
of violating his oath.
It is true that the Fifth and Ninth Circuits have essentially disregarded Allen’s oath-ofoffice-injury holding, see Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) (citing Finch v.

6

A three-judge panel of the D.C. Circuit affirmed Judge Lamberth’s opinion. See Clarke
v. United States, 886 F.2d 404, 417 (D.C. Cir. 1989). The en banc D.C. Circuit subsequently
vacated the panel and district court opinions based on Munsingwear mootness. Clarke v. United
States, 915 F.2d 699, 708 (D.C. Cir. 1990).
17

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Mississippi State Medical Ass’n., Inc., 585 F.2d 765 (5th Cir. 1978)); City of S. Lake Tahoe v.
California Tahoe Reg’l Planning Agency, 625 F.2d 231, 237–38 (9th Cir. 1980), but as Justice
White observed in criticizing those two courts, Allen remains binding Supreme Court precedent,
see City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency, 449 U.S. 1039, 1039 (1980)
(White, J., dissenting from the denial of certiorari). Indeed, as Judge Lamberth noted in Clarke,
the Supreme Court “reaffirmed Allen” in Bender v. Williamsport Area School District, 475 U.S.
534, 544 n.7 (1986), which post-dated City of South Lake Tahoe and Finch. See Clarke, 705 F.
Supp. at 608 n.4. Moreover, the principal concern that motivated the Fifth and Ninth Circuits to
reject oath-of-office standing was that such an injury, if not properly limited, risked allowing every
state or federal officer to challenge laws that they regard as unconstitutional. See City of S. Lake
Tahoe, 625 F.2d at 237; Finch, 585 F.2d at 773. But there is no such risk in this case because here,
unlike in Crane, Finch, and City of South Lake Tahoe, the oath-of-office injury to the plaintiff is
particularized; after all, Defendants have issued conflicting directives to Dr. Kupperman by name.
Dr. Kupperman therefore has an injury—the risk of violating his oath—that is specific to him, not
a “generalized grievance” about the constitutionality of a law. Lujan, 504 U.S. at 575. 7
The President and the House Defendants have each ordered Dr. Kupperman to take an
action that, were he to perform it, would place him at substantial risk of violating his constitutional
oath. Under Allen and Clarke, that is a cognizable injury, and this Court can and should redress it

7

Although two judges of this Court have previously rejected oath-of-office standing, they
were correct to do so under the facts of those two cases. As both judges explained, in neither case
was the plaintiff himself required to take an unconstitutional action, see Smith v. Obama, 217 F.
Supp. 3d 283, 295–96 (D.D.C. 2016), order vacated, appeal dismissed, 731 F. App’x 8 (D.C. Cir.
2018); Rodearmel v. Clinton, 666 F. Supp. 2d 123, 130–31 (D.D.C. 2009), which distinguished
those cases from Allen (and, of course, from this case).
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by issuing a declaratory judgment. Dr. Kupperman therefore has standing based on his oath of
office.
B.

Defendants Have Placed Dr. Kupperman At Substantial Risk of
the Reputational Harm That Comes With Being Held in Contempt.

Quite apart from Dr. Kupperman’s oath-based injury, Defendants have placed Dr.
Kupperman at substantial and imminent risk of injury to his reputation. It is well-established that
“injury to reputation can constitute a cognizable injury sufficient for Article III standing.” Foretich
v. United States, 351 F.3d 1198, 1211 (D.C. Cir. 2003); see Meese v. Keene, 481 U.S. 465, 472–
77 (1987). As relevant here, where a branch of the Federal Government affixes an “inherently
stigmatizing” label to an individual, the individual has standing to challenge that action. Pulphus
v. Ayers, 909 F.3d 1148, 1154 (D.C. Cir. 2018); see also Turkish Coal. of Am., Inc. v. Bruininks,
678 F.3d 617, 622 (8th Cir. 2012). Because being labeled a contemnor is inherently stigmatizing,
Dr. Kupperman has standing to bring this lawsuit to prevent Defendants from causing him to be
held in contempt.
The D.C. Circuit’s decision in Foretich is directly on point. In that case, Eric Foretich had
been accused by his ex-wife of sexually abusing their daughter, Hilary. 351 F.3d at 1203. In
response, Congress enacted the Elizabeth Morgan Act, which prohibited Foretich, from
“secur[ing] visitation with his daughter without first obtaining Hilary’s consent.” Id. at 1204.
Foretich challenged the statute on multiple grounds, including the Bill of Attainder Clause. Id. In
assessing his standing, the D.C. Circuit observed that “reputational injury that derives directly from
government action will support Article III standing to challenge that action.” Id. at 1214. The Court
of Appeals went on to hold that Foretich had standing: “[T]he Elizabeth Morgan Act harmed
[Foretich’s] reputation by embodying a congressional determination that he is a child abuser and
a danger to his own daughter,” id. at 1213, and “a decision declaring the Act unlawful would make
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clear that Congress was wrong to pass judgment on Dr. Foretich and wrong to single him out for
punishment on the basis of that judgment. In doing so, a declaratory judgment in Dr. Foretich’s
favor would give redress for his reputational injuries,” id. at 1216; see also McBryde v. Comm. to
Review Circuit Council Conduct & Disability Orders of Judicial Conference of U.S., 264 F.3d 52,
56–57 (D.C. Cir. 2001) (district court judge had standing to challenge public reprimand due to
reputational injury).
Just as in Foretich, the Legislative Branch threatens to “pass judgment” on Dr. Kupperman
and “single him out” for opprobrium by holding him in contempt. Foretich, 351 F.3d at 1216. This
“congressional determination” that Dr. Kupperman has unlawfully defied the People’s elected
representatives would injure Dr. Kupperman’s reputation. See Rangel v. Boehner, 20 F. Supp. 3d
148, 160 (D.D.C. 2013) (“it is beyond peradventure that being censured by the U.S. House of
Representatives concretely and particularly harms a sitting Member’s reputation”), aff’d, 785 F.3d
19 (D.C. Cir. 2015). Indeed, it is widely recognized that being held in contempt is a cognizable
injury because it harms the contemnor’s reputation. See, e.g., SerVaas Inc. v. Mills, 661 F. App’x
7, 9 (2d Cir. 2016); United States v. Lee, 720 F.2d 1049, 1054 (9th Cir. 1983); United States v.
Schrimsher, 493 F.2d 842, 844 (5th Cir. 1974); see also Keach v. County of Schenectady, 593 F.3d
218, 223–26 (2d Cir. 2010) (collecting authorities demonstrating that Courts of Appeals, including
the D.C. Circuit, generally hold that standing exists, due to reputational harm, when a judge
formally reprimands an attorney, even if no monetary sanction is applied). And just as in Foretich,
a declaratory judgment would provide redress by “mak[ing] clear that Congress [would be] wrong
to pass judgment on Dr. [Kupperman] and wrong to single him out for punishment on the basis of
that judgment.” Foretich, 351 F.3d at 1216; see also McBryde, 264 F.3d at 56–57.

20

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Indeed, the Department of Justice (DOJ) has previously advanced the same standing
argument that Dr. Kupperman does in this case. In United States v. House of Representatives, DOJ
argued that the House’s contempt citation for Environmental Protection Agency Administrator
Anne Gorsuch was sufficient to confer standing on her to sue the House:
Indeed, even if she is never prosecuted by the Executive, the House’s contempt
citation, in and of itself, more than amply establishes the immediacy of this
controversy. The House vote represents a formal determination by a co-equal
branch of our government that the head of an Executive agency has failed to comply
with the law. That citation thus stands as an accusation by the House of
Representatives that an Executive officer has committed a criminal act in
discharging her official duties as Administrator of the EPA . . . . These injuries are
all concrete, direct and immediate and can only be redressed through judicial
resolution.
Points and Authorities in Support of Plaintiffs’ Motion for Summary Judgment and in Opposition
to Defendants’ Motion to Dismiss at 24–25, United States v. House of Representatives, No. 823583, 556 F. Supp. 150 (1983).
Of course, in the case of Administrator Gorsuch, the House had already voted to hold the
official in contempt, but that does not affect the analysis in this future-injury case, since there can
be no serious doubt that, at the time of the filing of this lawsuit, there was a “credible threat” that
House Defendants would hold Dr. Kupperman in contempt if he followed the President’s order not
to testify. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979); Complaint,
Doc. 1, at ¶ 2. Indeed, only three months prior to the filing of the complaint, the House of
Representatives had in fact voted to hold the Attorney General and Secretary of Commerce in
contempt for not complying with House subpoenas. 8 Defendant Schiff has routinely threatened to

8

Clare Foran and Ashley Killough, House votes to hold Barr, Ross in criminal contempt
over census dispute, CNN (July 17, 2019), https://cnn.it/37hCs1v.
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hold other Executive Branch officials in contempt, 9 and so has Defendant Pelosi. 10 In fact, only
hours after the filing of the complaint in this case, Defendant Schiff admitted that Dr. Kupperman,
in particular, was at risk of being held in contempt, 11 and when Dr. Kupperman did not appear,
Defendant Schiff expressly threatened to “consider Dr. Kupperman’s defiance of the subpoena as
evidence in a future contempt proceeding.” Dep. of Charles Kupperman, Permanent Select Comm.
on Intel., joint with the Comm. On Oversight and Reform and the Comm. On Foreign Aff., 116
Cong. (Oct. 28, 2019), https://bit.ly/37JZoqg. Notwithstanding the time-of-filing rule, this Court
may take into account these admissions in the same way that it takes into account a defendant’s
post-complaint factual admissions in pleadings or briefs when assessing standing. These threats,
in addition to the actual holding of Cabinet-level officers in contempt only a few months ago, more
than suffice to show that the risk of reputational injury to Dr. Kupperman was neither “imaginary
[n]or speculative.” United Farm Workers, 442 U.S. at 298.
That injury, in turn, is caused by both the President and the House Defendants. Obviously,
the House Defendants are the parties who actually subpoenaed Dr. Kupperman and are empowered
to hold Dr. Kupperman in contempt, and their credible threats to use that power is a cause of Dr.
Kupperman’s injury. But the President is also a cause of Dr. Kupperman’s injury, since it was the
President’s order directing Dr. Kupperman not to testify that placed him between a rock and a hard

9

See, e.g., Ari Shapiro, Rep. Adam Schiff Reacts to Acting Director of National
Intelligence’s Testimony, NPR (Sept. 26, 2019), https://n.pr/2QvLlPa; Elizabeth Thomas,
Democrats looking at imposing daily contempt fines on Trump officials, Rep. Adam Schiff says,
ABC NEWS (May 10, 2019), https://abcn.ws/37agUDQ.
10

Cristina Marcos, Pelosi: Lewandowski should have been held in contempt ‘right then
and there,’ THE HILL (Sept. 18, 2019), https://bit.ly/2CRd1WF; Heather Cayble and Kyle Cheney,
Pelosi hints at contempt charges against multiple Trump associates, POLITICO (May 9, 2019),
https://politi.co/2rYgKzz.
11

Kylie Atwood and Jeremy Herb, Democrats threaten NSC official with contempt as more
depositions scheduled for next week, CNN (Oct. 26, 2019), https://cnn.it/32YcEE7.
22

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place. If the House Defendants had not subpoenaed Dr. Kupperman and had not presented a
credible threat of contempt, he could have refrained from testifying without risking injury to his
reputation in the form of contempt. If the President had not instructed Dr. Kupperman not to testify,
Dr. Kupperman would have complied with the subpoena, thereby remaining free of the threat of
contempt.
Both the President and the House Defendants, then, were necessary to causing Dr.
Kupperman’s injury: the substantial and imminent risk of being held in contempt and suffering
reputational harm. The House Defendants pointed the sword of contempt at Dr. Kupperman, but
the President exposed Dr. Kupperman to its thrust. See Orangeburg, 862 F.3d at 1080 (“To be
sure, NCUC—a non-party—is a key player in the causal story. But the existence of, perhaps, an
equally important player in the story does not erase FERC’s role.”). Because “[a] declaratory
judgment that the government’s actions were unlawful will consequently provide meaningful
relief” to Dr. Kupperman’s imminent reputational injury, Foretich, 351 F.3d at 1214, he has
standing to sue both the President and the House Defendants.
C.

Defendants Have Placed Dr. Kupperman At
Substantial Risk of Being Fined for Contempt.

Although the imminent risk of being held in contempt by the House would, by itself, suffice
for Article III standing, Dr. Kupperman also has standing because Defendants have placed him at
imminent and substantial risk of being fined for contempt under the House’s inherent contempt
authority. There is no doubt that being fined, or being threatened with a fine, is a cognizable injury
under Article III. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007). Because
there is a credible threat that the House will fine Dr. Kupperman for contempt, he has standing.
House Defendants have three ways of enforcing a subpoena against Dr. Kupperman: “(1)
referral to the U.S. Attorney for prosecution of a criminal contempt of Congress charge; (2)
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detention [or fines] and prosecution pursuant to Congress’s inherent contempt authority; or (3) a
civil action to enforce the subpoena in a federal district court.” Miers, 558 F. Supp. 2d at 75. “In
comparison with the other types of contempt proceedings, inherent contempt has the distinction of
not requiring the cooperation or assistance of either the executive or judicial branches. The House
or Senate can, on its own, conduct summary proceedings and cite the offender for contempt.” 12
“Thus, the witness can be imprisoned for a specified period of time as punishment, or for an
indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until
he agrees to comply.” 13
Congress first exercised its inherent contempt authority as far back as 1795, 14 and “from
1857-1934 Congress relied on its inherent contempt power almost exclusively, despite the
availability of the criminal [contempt] statute.” 15 The Supreme Court has repeatedly held that
Congress has such inherent contempt authority under the Constitution. See McGrain v. Daugherty,
273 U.S. 135, 182 (1927); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 228 (1821).
Of course, one might think that it is “unlikely that Congress could dispatch the Sergeantat-Arms to arrest and imprison an Executive Branch official who claimed executive privilege,”
Miers, 558 F. Supp. 2d at 76 (quoting Response to Congressional Requests for Information
Regarding Decisions Made Under the Independent Counsel Act, 10 U.S. Op. Off. Legal Counsel
68, 86 (1986)), but that says nothing about whether Congress could and would impose monetary
fines as part of its inherent contempt authority. Although the Supreme Court has never directly
12

Todd Garvey, Congress’s Contempt Power and the Enforcement of Congressional
Subpoenas: Law, History, Practice, and Procedure, CONG. RES. SER. 12 (2017),
https://bit.ly/2OLAk9H, (hereinafter CONGRESS’S CONTEMPT POWER).
13

Id. at 11.

14

Id. at 4–5.

15

Id. at 17–18 n.124.
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decided whether Congress has the inherent power to enforce its subpoenas with monetary fines, it
is clear that Congress possesses such authority. When the Supreme Court first affirmed Congress’s
inherent contempt authority, it held that the authority only extended so far as “the least possible
power adequate to the end proposed.” Anderson, 19 U.S. (6 Wheat.) at 230–31 (emphasis omitted).
In Anderson, imprisonment was thought to be the minimal power adequate to dealing with any
“contumacious” individuals, but the Court did not rule out “other inflictions” that are essentially
“commutation[s] for confinement.” Id. at 231. And if arresting and throwing an individual in
prison is permissible, then surely fining an individual must be, since a fine will often be “the least
possible power adequate to” enforcing a subpoena. Id.; cf. Hutto v. Finney, 437 U.S. 678, 691
(1978) (describing fines as a “less intrusive power” compared with imprisonment). Perhaps that is
why the Supreme Court, in Kilbourn v. Thompson, expressly referred to “the power of punishment
in either House by fine or imprisonment.” 103 U.S. 168, 190 (1880) (emphasis added).
The argument in favor of the House’s power to levy fines is particularly strong when the
House “exercises the judicial power of . . . preferring articles of impeachment,” Kilbourn, 103 U.S.
at 191; see also Hayburn’s Case, 2 U.S. (2 Dallas) 408, 410 n.* (1792) (describing Congress, “in
whom no judicial power of any kind appears to be vested, but the important one relative to
impeachments”); Trump v. Mazars USA, LLP, 940 F.3d 710, 754 (D.C. Cir. 2019) (Rao, J.,
dissenting) (“The original meaning confirms that Congress acts in an exceptional judicial capacity
when exercising impeachment powers.”). The Supreme Court has said that “[w]here the question
of such impeachment is before either body acting in its appropriate sphere on that subject, we see
no reason to doubt the right to compel the attendance of witnesses, and their answer to proper
questions, in the same manner and by the use of the same means that courts of justice can in like
cases.” Kilbourn, 103 U.S. at 190. And, of course, levying fines to enforce compliance with a

25

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subpoena is a traditional and inherent judicial power. See Anderson, 19 U.S. (6 Wheat) at 227–28
(describing inherent judicial power to levy fines in furtherance of a court’s legitimate activities);
see also ERSKINE MAY, TREATISE

ON THE

LAW, PRIVILEGES, PROCEEDINGS

AND

USAGE

OF

PARLIAMENT ¶ 11.27 (25th ed. 2019) (“The House of Lords in its capacity as a court of record has
had power to inflict fines, either in substitution for, or in addition to, committal.”).
In light of this history, it is no surprise that members of the House—including Defendant
Schiff—have stated that the House has the inherent power to levy fines against subpoenaed
witnesses as part of the House’s inherent contempt power and have threatened to use that power.
For example, on May 10, 2019, Defendant Schiff stated:
Much as I like the visual of [throwing people in jail], I think it’s far more practical
to consider levying individual fines on the person—not the office—until they
comply . . . . You could fine someone $25,000 a day until they comply. You can do
that. 16
His fellow member of the House Permanent Select Committee on Intelligence, Congressman Mike
Quigley, has likewise threatened the use of inherent contempt: “I think at this point the House
would be willing to go forward with inherent contempt at least in terms of fining people.” 17 Several
other members of the House have made similar statements and threats. 18 The President is simply
16

Thomas, Democrats looking at imposing daily contempt fines, supra.

17

Chris Mills Rodrigo, House Intel Dem: Giuliani could be held in inherent contempt if he
ignores subpoena, THE HILL (Sept. 30, 2019), https://bit.ly/2XeeBeE.
18

See, e.g., Sam Brodey, Dems Torn Over How Much to Punish Rudy Giuliani for Ignoring
Subpoena, DAILY BEAST (Oct. 16, 2019), https://bit.ly/2OaYPNb (“ ‘This is another example of
why the House needs to revisit inherent contempt,’ said Rep. Gerry Connolly (D-VA) of Giuliani.
‘We need to enforce our own subpoenas. We can and we should.’ ”); Jason Lemon, Rashida Tlaib
Says Democrats Had “Actual Serious Conversations” About Detaining Trump Officials,
NEWSWEEK (Oct. 13, 2019), https://bit.ly/2OjBsSW (“ ‘With regard for inherent contempt, I’ve
been for that all along,’ Garemendi said in an interview with CNN. ‘I think that if they come and
they simply refuse to answer questions, I think it’s time to call in the sergeant at arms, march them
off to a little jail, which we do happen to have in one of the rooms of the Capitol.’ ”); Rachel Bade
and Josh Dawsey, “We’ve been very weak”: House Democrats decry their oversight of Trump,
push Pelosi on impeachment, WASH. POST (Sept. 22, 2019), https://wapo.st/33JMBlf (“On Friday,
26

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incorrect, therefore, when he asserts that “the House has nowhere suggested reviving [the use of
inherent contempt].” President MTD, Doc. 40, at 15.
The President points out that Congress has not used its inherent contempt authority since
1935, see id., but that is primarily because, at least during the intervening period, “criminal
contempt was more expeditious and an effective threat.” 19 Indeed, for much of that period, “the
very threat of a contempt vote was sufficient to elicit compliance” from Executive Branch officials,
so the possibility of using inherent contempt did not even arise. 20 See McGahn, Slip Op. at 56 (lack
of Federal court decisions regarding the enforcement of congressional subpoenas over the course
of several decades proved no more than that “the Executive branch wisely picked its battles”).
Moreover, while Congress has not actually had to resort to its inherent contempt power recently,
it has threatened to use that power—and to good effect. “For example, Senator Sam Ervin, when
serving as Chairman of the Senate Select Committee on Presidential Campaign Activities, invoked
the inherent contempt power several times to encourage compliance with the Committee’s requests

Judiciary members pressed Nadler to invoke Congress’s long-dormant inherent contempt authority
that would allow Congress to jail or fine people for defying subpoenas, an idea he supports,
according to people familiar with his thinking.”); id. (“ ‘Our side says it’s legally questionable, it
hasn’t been used in forever, and blah, blah, blah,’ said Rep. Steve Cohen (D-Tenn.), a member of
the panel . . . . ‘I say do it,’ he continued. ‘Let them argue in court that they take the position that
it’s legally questionable. We back off of everything! We’ve been very weak.’ ” (quotation marks
omitted)); id. (“ ‘We need to develop other tools because our tools are not working,’ said Rep. Ted
Lieu (D-Calif.), a Judiciary panel member who is co-chair of the Democratic Policy and
Communications Committee . . . . Lieu, who was also in the Judiciary panel’s ‘emergency
meeting’ on Friday, has also backed the idea of using inherent contempt.”).
19

The ACA’s Cost Sharing Reduction Program: Ramifications of the Administration’s
Decision on the Source of Funding for the CSR Program: Hearing Before the H. Subcmte. on
Oversight and Investigations of the Energy and Commerce Cmte., 114th Cong. 30 (2016)
https://bit.ly/2OmpMie (statement of Morton Rosenberg, Legislative Consultant) (hereinafter
Rosenberg Statement); CONGRESS’S CONTEMPT POWER, supra, at 12.
20

Rosenberg Statement, supra, at 13.
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for information during its investigation of the Nixon Administration.” 21 And while the President
seems to doubt whether the inherent contempt power could be used against Executive Branch
officials, it has, in fact, been used against them in the past. 22 “Lack of enforcement of a clearly
applicable [power] . . . is a slender reason for denying [judicial] review.” 13B CHARLES A.
WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. JURIS. § 3532.5 (3d ed.); see Epperson v.
Arkansas, 393 U.S. 97, 102 (1968) (holding that jurisdiction existed even though statute had never
been enforced and was “more of a curiosity than a vital fact of life”). And it has no persuasive
force where, as here, the power in question has been repeatedly sustained by the Supreme Court,
exercised numerous times by Congress before 1935, held in abeyance only due to its inconvenience
and lack of necessity since 1935, and repeatedly and loudly trumpeted this year by prominent
members of the House, including by Defendant Schiff.
Under Supreme Court precedent, the foregoing is more than enough to demonstrate a
“credible threat of prosecution” in the form of inherent contempt. United Farm Workers, 442 U.S.
at 298 (holding that standing existed even though the statute had never been enforced against the
conduct at issue—and the government insisted it might never be—because the statute clearly
applied to the conduct and the government had not disavowed enforcement); N.H. Right to Life
Political Action Comm. v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996) (“credible threat” test “is quite
forgiving. Babbitt illustrates how readily one can meet it.”). Indeed, even under the higher bar for
21

Todd Garvey, Congressional Subpoenas: Enforcing Executive Branch Compliance,
CONG. RES. SER., 16 (Mar. 25, 2019), https://bit.ly/35EdJCG.
22

Id. at 30–31; see also id. at 30 (“Although rare, the inherent contempt power has been
used to detain executive branch officials, including for non compliance with a congressional
subpoena.”). The President also asserts that executive privilege would bar the use of inherent
contempt against a member of the Executive Branch, see President MTD, Doc. 40, at 15 n.4, but
that argument “is about the merits . . . and has nothing at all to do with whether [Dr. Kupperman]
has Article III standing,” City of Jersey City v. Consol. Rail Corp., 668 F.3d 741, 746 (D.C. Cir.
2012).
28

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standing established by the D.C. Circuit in future-injury cases, the singling out of Dr. Kupperman
via subpoena places this case squarely within the category of cases in which the D.C. Circuit has
found standing. See Ord v. District of Columbia, 587 F.3d 1136, 1143 (D.C. Cir. 2009) (“special
priority”—i.e., the singling out the plaintiff in the statute—“is sufficient to establish
imminence”). 23 Thus, Dr. Kupperman is injured by the significant and imminent risk of being fined
for contempt of Congress.
This injury, in turn, was caused by both the President and the House Defendants. As
discussed above, the President has placed Dr. Kupperman at imminent and substantial risk of
contempt by ordering him not to testify. At the same time, the House Defendants are the ones who
actually have the power to hold Dr. Kupperman in contempt and fine him, and there is a credible
threat that they will do so. Thus, the President and the House Defendants each contribute to Dr.
Kupperman’s injury: the very real risk of being fined for contempt. And, for the same reason, that
injury would be fully redressed by a declaratory judgment from this Court making clear which
branch of the Federal Government has the constitutional authority to direct Dr. Kupperman’s
actions in this context.
III.

DR. KUPPERMAN’S SUIT IS NOT BARRED BY SOVEREIGN IMMUNITY.
Both the House Defendants and the President assert that Plaintiff’s suit may not proceed

against either branch because of the federal government’s sovereign immunity from suit. See

23

Although Plaintiff clearly meets the D.C. Circuit’s more-demanding test for future-injury
challenges, he also reserves the right to argue, in subsequent proceedings, that the D.C. Circuit’s
version of the test is contrary to Supreme Court precedent and should be overruled. See Ord, 587
F.3d at 388–95 (Brown, J., dissenting in part) (criticizing D.C. Circuit test as being contrary to
Supreme Court precedent); Parker v. District of Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007)
(similar); Seegars v. Gonzales, 396 F.3d 1248, 1253–54 (D.C. Cir. 2005) (similar).
29

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President MTD, Doc. 40, at 10; House MTD, Doc. 41 at 8-9. This argument is unavailing for at
two separate reasons.
1.

Plaintiff’s suit is analogous to the traditional equitable tool of interpleader, “which

permits a plaintiff threatened with rival claimants to the same debt or legal duty to bring an
interpleader action before the institution of the independent suits.” California v. Texas, 457 U.S.
164, 167 (1982) (per curiam). When assessing jurisdictional questions raised by interpleader
actions, the federal courts look to the substance of the action, rather than the formal structure of
the interpleader. For example, when a party brings an interpleader whose cause of action is not
created by federal law, one might think that the federal courts lack federal-question jurisdiction
under 28 U.S.C. § 1331. But, as the D.C. Circuit has held, that is not the case. Rather, interpleader,
like a declaratory judgment action, “stake[s] the federal court’s jurisdiction on ‘a defense to a claim
that would raise a federal question and that defendant could have asserted in a coercive action.’”
Commercial Union Ins. Co. v. United States, 999 F.2d 581, 585 (D.C. Cir. 1993) (quoting Bell &
Beckwith v. United States, 766 F.2d 910, 912 (6th Cir. 1985)). And, like in a declaratory judgment
action, “federal jurisdiction exists if such jurisdiction would have existed in a coercive action by
the defendant.” Id. (quoting Bell & Beckwith, 766 F.2d at 914). Therefore, the Court of Appeals
has permitted interpleader actions to proceed when, for instance, the United States could have
brought a coercive action under a federal statute, thereby securing federal-question jurisdiction.
Id.
This focus on substance over form coheres with the principles and priorities of equity, from
which interpleader was created. See Young v. Higbee Co., 324 U.S. 204, 209 (1945) (“Equity looks
to the substance and not merely to the form.”); see also Sanders v. Armour Fertilizer Works, 292
U.S. 190, 199 (1934) (“Suits for interpleader . . . were familiar to equity when the Constitution

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was adopted . . . .” (quotation omitted)). And this same interest in substance over form also
undergirds much of the courts’ sovereign immunity jurisprudence. See, e.g., Smith v. Katzenbach,
351 F.2d 810, 813 (D.C. Cir. 1965) (explaining that sovereign immunity does not apply to an
official “threatening to act unconstitutionally” because “his action is deemed the action of the
Government in form, but not in substance”).
The intersection of these two pragmatically minded doctrines is best demonstrated in the
First Circuit’s decision in Hudson Savings Bank v. Austin, 479 F.3d 102 (2007). There, a bank held
a mortgage belonging to an individual who owed money to both Massachusetts and the federal
government because of various tax delinquencies. Id. at 104. The bank filed an interpleader action
in state court, naming both Massachusetts and the United States as defendants. Id. at 105. After
the federal government removed the action to federal court, Massachusetts invoked its sovereign
immunity under the Eleventh Amendment, which bars virtually any suit brought by a private party
in a federal court against an unconsenting state. See Seminole Tribe of Florida v. Florida, 517 U.S.
44, 54 (1996).
The First Circuit recognized that it was strictly true that the bank—a private party—had
sued Massachusetts and was the putative plaintiff. The Court of Appeals nevertheless held that
Massachusetts was not entitled to assert its sovereign immunity because the suit, in substance, was
between the United States and Massachusetts. Because of the nature of interpleader, “the
defendants are not antagonistic to the plaintiff but, rather, are pitted against each other.” Hudson
Sav. Bank, 479 F.3d at 107. The court also found three features of the suit “especially important”:
(1) the bank had claimed no entitlement to the stake and sought “nothing beyond a discharge from
further liability”; (2) “no private party had asserted any claim of entitlement to the stake”; and (3)
the sum of the sovereigns’ claims exceeded the value of the stake, such that the bank could not

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satisfy the demands of both sovereigns. Id. In light of these three facts, the court characterized the
interpleader “in practical effect, as a straightforward dispute between the Commonwealth and the
United States,” and held that such a “dispute between two sovereigns unquestionably would fall
outside the purview of the Eleventh Amendment.” Id.
As for the bank’s continuing involvement in the litigation, the First Circuit recognized that
because the bank had no claim to the stake, its presence was no “more than a fiction of ‘the
elementary mechanics of captions and pleadings,’” that the court was required to ignore for
Eleventh Amendment purposes. Id. (quoting Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 270
(1997)). Moreover, the court’s focus on the relationship between Massachusetts and the United
States, rather than between the bank and the sovereigns, was consonant with the practice of
“treat[ing] an interpleader action as a de facto suit between the claimants to the stake (even though,
nominally, they were the defendants in the action).” Id. at 107–08. The court’s intensely practical
approach to the assertion of sovereign immunity was all the more persuasive because “interpleader
is an equitable mechanism, and courts should not hesitate to ‘eliminat[e] those technical restraints
on the device that are not founded on adequate policy considerations.’” Id. at 108 (quoting 7
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC.
JURIS. § 1704, at 541 (3d ed. 2001)).
We respectfully submit that the First Circuit’s analysis in Hudson Savings Bank is
compelling and should guide this Court’s consideration of sovereign immunity here. Dr.
Kupperman’s suit, which is closely analogous to interpleader, shares the same three features as
Hudson Savings Bank that justify treating the case as, in practical effect, one between the House
Defendants and the President: (1) Plaintiff has no stake in the litigation beyond discharging his
lawful obligation to whichever Branch holds the correct legal view on the merits; (2) all of the

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parties in interest are presumptively clothed with the sovereign authority of the United States; and
(3) Plaintiff cannot satisfy the competing demands of both Branches. See id. at 107. As the
Department of Justice itself argued in Hudson Savings Bank, the contention “that [a sovereign]
cannot be forced to ‘defend’ th[e] interpleader action brought by a private citizen in federal court
exalts form over substance.” Brief for the United States, Hudson Sav. Bank, 479 F.3d 102 (No. 062043), 2006 WL 3888643. The federal government’s position in Hudson Savings Bank was correct
then, and it should prevail here again: settled principles of equity require the Court to focus on the
substance of the dispute over the President’s assertion of testimonial immunity and treat this case
as a de facto suit between the House Defendants and the President.
Sovereign immunity does not protect one Branch of the federal sovereign from suit by
another. Indeed, we have not found any instance in which either Congress or the Executive branch
has even asserted sovereign immunity in the context of interbranch litigation. See, e.g., U.S. House
of Representatives v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019); U.S. House of Representatives
v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2015); Comm. on Oversight & Gov’t Reform v. Holder,
979 F. Supp. 2d 1 (D.D.C. 2013); Comm. on Judiciary, U.S. House of Representatives v. Miers,
558 F. Supp. 2d 53 (D.D.C. 2008); U.S. House of Representatives v. U.S. Dep’t of Commerce, 11
F. Supp. 2d 76 (D.D.C. 1998); United States v. U.S. House of Representatives, 556 F. Supp. 150
(D.D.C. 1983).
2.

In the alternative, sovereign immunity does not shield either the House Defendants

or the President from suit because of the nature of their alleged acts. As the House Defendants
acknowledge, “sovereign immunity does not apply as a bar to suits alleging that an officer’s actions
were unconstitutional.” Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (citing Larson v.

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Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949)); see House MTD, Doc. 41, at 9
(citing Clark v. Library of Cong., 750 F.2d 89, 102 (D.C. Cir. 1984)).
Inexplicably, however, the House Defendants also assert that Dr. Kupperman “presents no
such [constitutional] claim as to the House Defendants.” Id. That stingy interpretation of Plaintiff’s
complaint is manifestly mistaken. Dr. Kupperman made clear in his complaint that were the
President’s assertion of testimonial immunity lawful, any decision to “appear and testify in
obedience to the House Defendants’ subpoena would unlawfully impair the President in the
exercise of his core national security responsibilities.” Complaint, Doc. 1, at ¶ 2. Likewise, if the
President’s assertion of immunity exceeded his Article II authority, Plaintiff alleged that “an
erroneous judgment to abide by the President’s assertion of testimonial immunity would
unlawfully impede the House from carrying out one of its most important core Constitutional
responsibilities, ‘the sole Power of Impeachment.’” Id. (quoting U.S. CONST. art. I, § 2, cl. 5).
Clearly, therefore, Plaintiff alleged that both the House Defendants by their subpoena and
the President by his contrary directive had issued conflicting orders to Plaintiff. And either the
House Defendant’s subpoena or the President’s directive necessarily infringed on the opposing
branch’s constitutional authority, therefore exceeding the constitutional power delegated to the
offending branch. Moreover, because reasonable arguments can, and have, been made on both
sides of the merits issue, Plaintiff can credibly allege that either the House Defendants or the
President have invaded his legal rights through an unconstitutional act. The merits question of
which Branch has acted unconstitutionally only goes to the content of Plaintiff’s rights, not to
whether either Branch has sovereign immunity from equitable relief. See Pollack v. Hogan, 703
F.3d 117, 121 (D.C. Cir. 2012). Because Plaintiff’s complaint alleges that some federal official’s

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conduct necessarily violates the Constitution, sovereign immunity does not bar his declaratory
judgment action.
IV.

DR. KUPPERMAN’S SUIT AGAINST THE PRESIDENT
IS NOT BARRED BY ABSOLUTE IMMUNITY.
The President argues that, presumably as a matter of constitutional law, Dr. Kupperman is

categorically barred from suing the Chief Executive. See President MTD, Doc. 40 at 8–10. But
“[i]t is settled law that the separation-of-powers doctrine does not bar every exercise of
jurisdiction over the President of the United States.” Nixon v. Fitzgerald, 457 U.S. 731, 793–94
(1982). While the doctrine may “forbid judicial interference with the exercise of Executive
discretion,” Mississippi v. Johnson, 71 U.S (4 Wall.) 475, 499 (1886) (emphasis added), the
dispute between the House Defendants and the President has nothing to do with how the Executive
should exercise his “discretion.” It instead concerns the foundational question whether the
President even has the discretion to assert testimonial immunity in this context. In other words,
the dispute really asks whether, in light of the meaning of Article II, the President has a “ministerial
duty” to withdraw his assertion of testimonial immunity. Id. at 498. And while it remains an open
question whether the federal courts may issue injunctive relief against a President for failure to
perform a ministerial duty, see Franklin v. Massachusetts, 505 U.S. 788, 802 (1992) (plurality
opinion); Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996), there is no reason why non-coercive
declaratory relief may not issue, resolving the question whether the assertion of immunity here
was in fact within the President’s discretion.
A ministerial duty is one “that admits of no discretion, so that the official in question has
no authority to determine whether to perform the duty.” Swan, 100 F.3d at 977; see also Johnson,
71 U.S. (4 Wall.) at 498 (describing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), as
involving a ministerial duty of the Secretary of State to deliver a commission). Assuming the
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President’s claim of absolute testimonial privilege must give way to a congressional subpoena in
support of an impeachment inquiry, he has no constitutional authority to order Dr. Kupperman to
decline to testify.
Largely eliding this traditional distinction between executive discretion and ministerial
duties, the President leans heavily on Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010), to
support his claim of absolute immunity from the federal courts’ equitable jurisdiction. In Newdow,
the Court of Appeals held that a group of plaintiffs seeking to challenge the religious elements of
presidential inaugural ceremonies lacked standing to seek injunctive relief against the Chief Justice
of the United States, the entities that organize the inauguration ceremonies, and clergymen
speakers. In reaching that conclusion, the majority in Newdow also remarked along the way that
“courts do not have jurisdiction to enjoin [the President]” and asserted that federal courts “have
never submitted the President to declaratory relief.” Id. at 1013. But despite all the weight that the
President places on Newdow, the Court’s statements there are both inapposite and nonprecedential, and its factual claim that the President has never been subjected to declaratory relief
is demonstrably wrong.
First, the Newdow dictum is inapposite. The Court simply stated that the religiosity of an
inaugural ceremony was “a decision committed to the executive discretion of the President” and
that a federal “court—whether via injunctive or declaratory relief—does not sit in judgment of a
President’s executive decisions.” Id. at 1012 (emphases added). This assertion regarding the
President’s exercise of executive discretion does not address, let alone resolve, whether the
President can be subject to the federal courts’ equitable authority when the question is whether the
President has the discretion he claims, rather than his exercise of acknowledged discretionary
executive powers. For example, compare Newdow to Swan. In the latter case, the plaintiff alleged

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that the President had “violated a duty to comply with removal restrictions” contained in a
congressional statute and a duty “not [to] interfere with” the plaintiff’s officeholding until a
successor had been lawfully appointed. 100 F.3d at 977. The court of appeals observed, in no
uncertain terms, that “[t]his duty, if it exists, is ministerial and not discretionary, for the President
is bound to abide by the requirements of duly enacted and otherwise constitutional statutes.” Id.
The House Defendants’ merits arguments here are far more like those alleged against the
President in Swan than in Newdow. Just as the President has no discretion on whether “to abide by
the requirements of duly enacted or otherwise constitutional statutes,” he likewise has no discretion
on whether to abide by Congress’s lawful investigatory subpoenas absent a valid claim of
executive immunity. In contrast, the organization of the President’s own inauguration implicates
precisely the “judgment, planning, or policy decisions” that exemplify executive discretion. Swan,
100 F.3d at 977 (quoting Beatty v. Washington Metro. Area Transit Auth., 860 F.2d 1117, 1127
(D.C. Cir. 1988)). Indeed, the Newdow majority pointedly remarked that “[t]he inaugural
ceremony is a peculiar institution, the whole of which is subject to the President’s or Presidentelect’s discretion.” 603 F.3d at 1011. There is nothing “peculiar” about the President’s duty to
refrain from asserting testimonial privileges if the Constitution requires that such assertions must
give way to a congressional subpoena issued in support of an impeachment inquiry.
Second, Newdow’s statements about the relationship between the federal courts and the
President are dicta and have no binding effect on this Court. See Doe v. Fed. Democratic Republic
of Ethiopia, 851 F.3d 7, 10 (D.C. Cir. 2017) (“Binding circuit law comes only from the holdings
of a prior panel, not from its dicta.” (quoting Gersman v. Grp. Health Ass’n, 975 F.2d 886, 897
(D.C. Cir. 1992))). The Newdow plaintiffs did not join President Obama as a defendant in their
challenge to the statement of “so help me God” in the oath of office because they conceded that

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“[t]he President cannot be denied the prerogative of making such a religious reference . . . because
doing so would abrogate his First Amendment rights.” 603 F.3d at 1010. As then-Judge Kavanaugh
explained in his dissent from the majority’s standing analysis, the plaintiffs “acknowledge[d] that
a President on his or her own might still say ‘so help me God’ even if those words are not part of
the official oath recited by the Chief Justice.” Id. at 1015 n.2 (Kavanaugh, J., concurring in the
judgment). It was therefore clear to then-Judge Kavanaugh that “plaintiffs d[id] not seek to
constrain a President’s choice of what he or she says at the Inaugural ceremonies, whether during
the oath or the Inaugural Address,” and instead challenged only “the inclusion of ‘so help me God’
in the official Presidential oath articulated by the Chief Justice in a public ceremony, as well as the
Inaugural prayers delivered by the selected clergy during that public ceremony.” Id.
Rather than merely assess whether the plaintiffs had standing even if the President were
free to say and do what he pleased at the inaugural ceremony, the Newdow majority went a step
further and commented on whether the court could, if asked, enjoin the President or issue a
declaratory judgment against him. But the plaintiffs never asked the court in Newdow to exercise
jurisdiction over the President and steadfastly maintained, on the merits, that the court could not
restrict the President’s speech during an inaugural ceremony. See id. at 1010, 1011. The majority’s
discussion of its authority to issue injunctive or declaratory relief against the President was
therefore completely unnecessary to the disposition of the case, as then-Judge Kavanaugh clearly
intimated.
Third, the Newdow majority clearly erred in declaring that federal courts “have never
submitted the President to declaratory relief.” Id. at 1013. That is simply not true. In fact, the Court
of Appeals “has issued a declaratory judgment directly against the President.” Citizens for
Responsibility & Ethics in Washington v. Trump, 302 F. Supp. 3d 127, 139 (D.D.C. 2018) (citing

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Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587, 615 (D.C. Cir. 1974)), aff’d, 924 F.3d 602
(D.C. Cir. 2019); see also Swan, 100 F.3d at 978 (explaining that the court in National Treasury
Employees Union even “asserted the authority to issue” an injunction against the President to
perform a ministerial duty, but refrained from doing so for prudential reasons); cf. Mackie v. Bush,
809 F. Supp. 144, 148 (D.D.C. 1993) (enjoining the President from removing certain members of
the Postal Service Board of Governors), vacated on grounds of mootness sub nom. Mackie v.
Clinton, 10 F.3d 13 (D.C. Cir. 1993). Even the President admits that a declaratory judgment against
the President would not be unprecedented. See President MTD, Doc. 40, at 9 n.1.
More importantly, the Supreme Court itself – in a case post-dating both Franklin and
Swan – has affirmed a declaratory judgment issued directly against the President. In Clinton v.
City of New York, 524 U.S. 417 (1998), the court affirmed a district court’s declaratory judgment,
which ran against the President, that “the Line Item Veto Act is unconstitutional and that the
[President’s] particular cancellation was invalid.” Id. at 425 n.9. The Court carefully noted also
that “neither set of plaintiffs sought injunctive relief against the President.” Id. But City of New
York confirmed that a President may be subjected to a declaratory judgment whenever his exercise
of authority violates a constitutional command that leaves him no discretion.
Newdow’s discussion of City of New York could be read to restrict the availability of
declaratory relief “solely to cases of judicial review of legislation.” In re Glob. Indus. Techs., Inc.,
645 F.3d 201, 213 n.30 (3d Cir. 2011) (en banc). But see Johnson, 71 U.S. (4 Wall) at 500 (stating
that federal courts could not, as of 1866, entertain suits seeking injunctions “to prevent the
execution of an unconstitutional act of Congress”). But “[n]othing in Clinton itself warrants that
limitation,” id. and the Newdow majority did not actually endorse it either. While Newdow
characterized City of New York as “a basic case of judicial review of legislation,” 603 F.3d at 1012,

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its central point was that the claim at issue targeted “a decision committed to the executive
discretion of the President,” rather than the President’s “statutory power,” as was implicated in
City of New York. Id.; see also In re Glob. Indus. Techs., Inc., 645 F.3d at 213 n.30. But, as
discussed above, the House Defendants’ challenge to the President’s assertion of testimonial
privilege for himself and his close advisors denies that the President’s discretionary executive
power encompasses that authority. The Newdow plaintiffs, meanwhile, conceded that the inaugural
ceremony is a “peculiar institution, the whole of which is subject to the President’s . . . discretion.”
Id. at 1011. Again, just as this case resembles Swan, so does it resemble City of New York, and
Newdow is not to the contrary.
It is also worth stepping back to put the President’s claim of absolute immunity from
judicial process into historical perspective: He essentially argues for greater immunity from
judicial process than the English Crown ever asserted before the Founding. Even the Crown was
not beyond the authority of equity. To be sure, the King had to consent to any claim against him,
but this notion of “consent” did not depend on the King’s fiat. Rather, it hinged on the foundational
principle that “the king, as the fountain of justice and equity, could not refuse to redress wrongs
when petitioned to do so by his subjects.” 9 WILLIAM HOLDSWORTH, A HISTORY

OF

ENGLISH

LAW 8 (3d ed. 1944).
Although the Crown could not generally be sued eo nomine in its own courts without its
consent, “when it was necessary to sue the Crown eo nomine consent apparently was given as of
course.” Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV.
L. REV. 1, 1 (1963). Indeed, the old expression, “the King can do no wrong,” never meant that the
King was above the law. Rather, “it meant that the king must not, was not allowed, not entitled, to
do wrong.” Ludwik Ehrlich, Proceedings Against the Crown (1216-1377), in 6 OXFORD STUDIES

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IN

SOCIAL

AND

LEGAL HISTORY 42 (Paul Vinogradoff ed., 1921). And, therefore, “equity

entertained some suits against the Crown.” Jaffe, supra, at 6. The President, like the King, must
submit himself to equity jurisdiction when he is alleged to have done wrong.
The President’s assertion of absolute immunity against suit makes even less sense once one
considers how the President occupies an entirely different place in our constitutional order than
the Crown occupied in England before the Founding. The English courts could not entertain suits
against the Crown without the King’s consent “because they were his Courts, and no lord could be
sued in his own Court.” William Holdsworth, The History of Remedies Against the Crown, 38 L.Q.
Rev. 141, 142 (1922) (emphasis added). The federal courts are not the President’s courts; they are
not the products of his prerogative and they are not created by him to administer his justice. Rather,
they are the creations of the Constitution and Congress, and they are vested with the “judicial
Power” to decide “all Cases, in Law and Equity, arising under this Constitution.” U.S. CONST. art.
III, §§ 1, 2. The President has offered no reason to think that a declaratory judgment resolving
Plaintiff’s suit in equity falls outside of this great Article III power.
Moreover, this case uniquely calls for this Court to reject the President’s claim of absolute
immunity. A claim of immunity of the sort pressed by the President here usually has little bearing
on the disposition of a case. See Newdow v. Bush, 391 F. Supp. 2d 95, 106 (D.D.C. 2005) (“For
all the broad language in the Supreme Court decisions regarding this question, this Court is unable
to find a case in which the actual disposition turned on the inability of the courts to issue an
injunction against . . . the Executive.”). The federal courts can almost always avoid enjoining or
issuing declaratory relief directly against a President because, in most cases, a plaintiff’s injury
“can be rectified by injunctive relief against subordinate officials.” Swan, 100 F.3d at 978. Even
Justice Scalia, to date the most strident defender on the Supreme Court of presidential immunity

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from judicial remedies, cautioned that his position did not “in any way suggest[] that Presidential
action is unreviewable.” Franklin, 505 U.S. 788, 828 (Scalia, J., concurring in part and concurring
in the judgment). Instead, “[r]eview of the legality of Presidential action can ordinarily be obtained
in a suit seeking to enjoin the officers who attempt to enforce the President’s directive.” Id.
(emphasis added); see also id. at 802–03 (plurality opinion) (noting that “in general, ‘th[e] court
has no jurisdiction of a bill to enjoin the President in the performance of his official duties”
(emphasis added) (quoting Johnson, 71 U.S. (4 Wall.) at 501)).
This case is anything but ordinary. The President’s order to Dr. Kupperman and his
continued assertion of absolute testimonial immunity for his close advisors “requires no aid of
subordinate officials.” Swan, 100 F.3d at 979. Only the President possesses the claimed testimonial
immunity, and only his erroneous invocation of that purported immunity is capable of injuring Dr.
Kupperman. Therefore, Plaintiff cannot “substantially redress his injury” by obtaining relief
against the President’s subordinate officials, id., as every Justice to address the question has
assumed an injured claimant may do in the ordinary case. Indeed, the whole point of extending the
President’s testimonial immunity from congressional inquiry to his immediate White House
advisors—his “alter egos”—is that there are no subordinate officials standing between these
advisors and the President. If the President’s assertion of testimonial immunity exceeds his
authority under Article II, then Plaintiff’s only relief can be obtained against the President himself,
rather than against his subordinates. And if Englishmen could maintain claims against the Crown
“when it was necessary to sue the Crown eo nomine,” Jaffe, supra, at 1 (first emphasis added),
Plaintiff is certainly entitled to seek relief against the President when it is necessary to address his
injury.

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Finally, it is important to emphasize that Dr. Kupperman is not here seeking an injunction
against the President. He has sued only for declaratory relief against either the House Defendants
or the President and is not asking the Court to exercise its coercive powers against a coordinate
branch of government. Therefore, should this Court agree with the House Defendants on the
merits, it will simply declare the President’s assertion of immunity invalid while still giving the
President the opportunity to participate in the suit and defend his conduct. While declaratory relief
against the President is surely a serious matter that should not be pursued lightly, see Swan, 100
F.3d at 976 n.1, the unique separation-of-powers concerns that exist when a court is asked to enjoin
the President simply do not apply here. The President has thus failed to show that he is absolutely
immune from suit seeking a declaration of this Court determining the validity of his assertion of
testimonial immunity.
V.

DR. KUPPERMAN’S SUIT AGAINST THE HOUSE DEFENDANTS
IS NOT BARRED BY THE SPEECH OR DEBATE CLAUSE.
The Speech or Debate Clause provides: “For any Speech or Debate in either House,

[Senators and Representatives] shall not be questioned in any other place.” U.S. CONST. art. I, § 6,
cl. 1. The House Defendants argue that because the House issued the subpoena as part of its
impeachment inquiry, it falls within the legislative activity shielded by the Clause, and thus may
not “be questioned” in this Court. But the case law cited by House Defendants does not help them
in this context for two reasons: (1) the Clause does not immunize the Sergeant-at-Arms for his role
in enforcing the challenged subpoena; and (2) the D.C. Circuit has distinguished legislative
immunity precedent where, as here, the real parties in interest are the two co-equal political
Branches of our Government.

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A.

The Speech or Debate Clause Does Not Immunize the
Sergeant-at-Arms for Enforcing the Challenged Subpoena.

Dr. Kupperman has moved to join Paul D. Irving in his official capacity as the Sergeantat-Arms of the House as a Defendant. See Plaintiff’s Motion to Add the Honorable Paul D. Irving
as Co-Defendant. The Sergeant-at-Arms is the chief law enforcement and protocol officer of the
House, and House Rules charge him with the duty to “execute the commands of the House, and
all processes issued by authority thereof . . . .” House Rule II, clause 3(a), Rules of the House of
Representatives: One Hundred Sixteenth Congress 2 (Jan. 11, 2019), https://bit.ly/2DiQNNt.
Historically, the Sergeant-at-Arms has played a pivotal role in the House’s exercise of its inherent
contempt power by arresting and detaining individuals who refused to comply with congressional
subpoenas. 24 And as the chief law enforcement officer, the Sergeant-at-Arms also enforces any
monetary fines the House could levy under its inherent contempt power. 25
The Supreme Court has consistently held that the Speech or Debate Clause does not bar
judicial review of a Congressional employee’s non-legislative actions even if taken in furtherance
of express Congressional orders. See e.g., Kilbourn v. Thompson, 103 U.S. 168, 202–05 (1880);
Dombrowski v. Eastland, 387 U.S. 82, 84 (1967) (per curiam); Powell v. McCormack, 395 U.S.
486, 505–06 (1969); Doe v. McMillan, 412 U.S. 306, 315 (1973). “[A]lthough an action against a
Congressman may be barred by the Speech or Debate Clause, legislative employees who
participated in the unconstitutional activity are responsible for their acts.” Powell, 395 U.S. at 503.
A challenge to the constitutionality of a subpoena that the Sergeant-at-Arms may seek to enforce
falls squarely within this category.

24

See CONGRESS’S CONTEMPT POWER, supra, at 10–11.

25

See e.g., id. at 11–12 (explaining the basis for Congress’s power to fine recalcitrant
witnesses).
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In Kilbourn v. Thompson, Hallet Kilbourn challenged the constitutionality of a House
Resolution ordering his arrest and imprisonment for contempt after he refused to comply with a
subpoena issued by a House investigating committee. See 103 U.S. at 200. Kilbourn sued the
Speaker of the House, members of the committee, and the Sergeant-at-Arms for false
imprisonment. See id. at 170. The Supreme Court concluded that the Speech or Debate Clause
provided the members with legislative immunity even though the House resolution authorizing
Kilbourn’s arrest was unconstitutional. See id. at 200–04. The Court noted that while the members
voted for the resolution, they did not participate in Kilbourn’s arrest or confinement. See id. at 200.
However, the Court permitted the case to go forward against the Sergeant-at-Arms, who executed
the warrant for his arrest. See id. at 202. In support of its conclusion, the Court favorably quoted
Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng. Rep. 1112 (K.B.1839): “So if the speaker by
authority of the House order an illegal act, though that authority shall exempt him from question,
his order shall no more justify the person who executed it than King Charles’s warrant for levying
ship-money could justify his revenue officer,” id. As the Court in a later case summarized the
Kilbourn holding:
In Kilbourn, the Speech or Debate Clause protected House
Members who had adopted a resolution authorizing Kilbourn's
arrest; that act was clearly legislative in nature. But the resolution
was subject to judicial review insofar as its execution impinged on
a citizen’s rights as it did there. That the House could with impunity
order an unconstitutional arrest afforded no protection for those who
made the arrest.
Gravel v. United States, 408 U.S. 606, 618 (1972).
The Court reaffirmed the principle that the Speech or Debate Clause does not shield
Congressional employees from liability for non-legislative (in Kilbourn, unconstitutional) actions
in several modern cases. In Dombrowski v. Eastland, the Court held that the Speech or Debate

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Clause protected the chairman of a Senate subcommittee but not the subcommittee counsel in a
civil action alleging the two conspired with state officials to unlawfully seize plaintiff’s property
and records. See 387 U.S. at 83. The Court explained that while there was no evidence that the
Senator was involved in “any activity that could result in liability,” there was a sufficient factual
dispute as to the counsel’s involvement to allow further proceedings. Id. at 84–85. 26
Likewise, the Court concluded in Powell v. McCormack that the Clause shielded members
of Congress, but not the Sergeant-at-Arms, Clerk, or Doorkeeper of the House in an action
challenging the constitutionality of a resolution excluding a member-elect from taking his seat in
the House. 395 U.S. at 504–06. The member-elect and some voters in his district sued the House
employees for actions taken in furtherance of the allegedly unconstitutional resolution: the Clerk
“threatened to refused to perform the service for [him] to which a duly elected Congressman is
entitled,” the Sergeant-at-Arms refused to pay his salary, and the Doorkeeper threatened to deny
him admission to the House chamber. Id. at 493. Despite the House’s efforts to distinguish the two
cases, the Court concluded that Kilbourn and Dombrowski were dispositive, and the plaintiffs were
“entitled to maintain their action against House employees and to judicial review of the propriety
of the decision to exclude” the member-elect. Id. at 506.
Finally, the Court reaffirmed this rationale in Doe v. McMillan. The Court held that while
the Speech or Debate Clause barred suit against Congressional committee members and related
Congressional staff to the extent they engaged in legislative acts of compiling, referring to the

26

The Court has explained, in dicta, that while “no prior case has held that Members of
Congress would be immune if they executed an invalid resolution by themselves carrying out an
illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or
invaded the privacy of a citizen,” neither the Member nor their aides “should be immune from
liability or questioning in such circumstances” because such acts are not essential to legislating.
Gravel v. United States, 408 U.S. 606, 621 (1972).
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Speaker, and voting on the publication of the challenged report, immunity did not extend “to [the]
persons who, with authorization from Congress, distribute[d] materials which allegedly infringe[d]
upon the rights of individuals.” 412 U.S. at 312, 314–16. The Court explained:
Members of Congress are themselves immune for ordering or voting
for a publication going beyond the reasonable requirements of the
legislative function, … but the Speech or Debate Clause no more
insulates legislative functionaries carrying out such nonlegislative
directives than it protected the Sergeant at Arms in Kilbourn v.
Thompson when, at the direction of the House, he made an arrest
that the courts subsequently found to be “without authority.”
Id. at 315 (citations omitted) (quoting Kilbourn, 103 U.S. at 200)). As a result, the Court concluded
that the Clause did not “immunize those who publish and distribute otherwise actionable materials
beyond the reasonable requirements of the legislative function.” Id. at 315–16.
Well-established Supreme Court precedent thus demonstrates that the Speech or Debate
Clause does not extend to allegations of unconstitutional, non-legislative actions taken by
Congressional employees. Challenges to the constitutionality of employees’ actions—rather than
those of members—do not hinder or threaten legislative activity, thereby protecting one of the
main purposes of the Speech or Debate Clause. See id. at 505–06; see also Gravel, at 408 U.S. at
620–21 (“[Kilbourn, Dombrowksi, and Powell] reflect a decidedly jaundiced view towards
extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to
foreclose executive control of legislative speech or debate and associated matters such as voting
and committee reports and proceedings.”).
Dr. Kupperman’s suit against the Sergeant-at-Arms is no different. He seeks a declaratory
judgment as to the constitutionality of the House subpoena in light of the President’s assertion of
absolute immunity over his testimony. Complaint, Doc. 1, at ¶ 49. “The causal connection between
the named officer[] and the specific injuries alleged [is] obvious,” as House Rules entrust the

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issuance of process to the Sergeant-at-Arms and Dr. Kupperman faces enforcement from the
Sergeant-at-Arms under the House’s inherent contempt power if he does not comply. See Common
Cause v. Biden, 748 F.3d 1280, 1284 (D.C. Cir. 2014). Although the House has threatened but not
yet taken such action, this suit presents the same issue as Kilbourn. And just as the Supreme Court
has reaffirmed the principles allowing Kilbourn to proceed in his action against the Sergeant-atArms in that case, this Court should likewise allow Dr. Kupperman’s suit.
B.

The Speech or Debate Clause Does Not Preclude Suit When the Real Parties
in Interest Are the Two Co-Equal Political Branches of Our Government.

D.C. Circuit precedent also demonstrates that the clash between the two co-equal political
Branches of Government—the real parties in interest here—precludes the Speech or Debate Clause
from immunizing the House subpoena from review. In United States v. American Telephone &
Telegraph Co., 551 F.2d 384 (D.C. Cir. 1976), the Justice Department sought an injunction
prohibiting AT&T from complying with a House subcommittee subpoena regarding an
investigation into warrantless national security wiretaps. The Chairman of the House Committee
on Interstate and Foreign Commerce sought and was granted leave to intervene as a defendant on
his own behalf and on behalf of the Committee and the House. Id. at 391. He argued the executive
branch could not interfere with its subpoena power under the Speech or Debate Clause. See id. The
court suggested that the legislative immunity recognized in prior case law may not be “absolute in
the context of a conflicting constitutional interest asserted by a coordinate branch of the
government,” explaining that “[t]his distinction is suggested by the dictum in United States v.
Nixon that the case might be very different if the President claims a ‘need to protect military,
diplomatic, or sensitive national security secrets . . . .’ ” Id. (quoting U. S. v. American Tel. & Tel.
Co., 418 U.S. 683, 706 (1974)).

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The Court of Appeals initially remanded the case for settlement negotiations, but revisited
the Speech or Debate question when the negotiations failed. See United States v. Am. Tel. & Tel.
Co., 567 F.2d 121 (D.C. Cir. 1977). The House again argued that the Clause, as interpreted in
Eastland v. U. S. Servicemen's Fund, 421 U.S. 491 (1975), barred judicial review of the subpoena,
but the D.C Circuit rejected that argument, holding that “the Clause does not and was not intended
to immunize congressional investigatory actions from judicial review. Congress’ investigatory
power is not, itself, absolute.” Id. at 129. The Court then considered the House’s argument that
“the court can act only if AT&T itself initiates a challenge to the subpoena [by defying it and
defending a contempt citation]; so long as AT&T merely awaits a court ruling on the Executive’s
challenge,” the House argued, “the court must abstain.” Id. The Court rejected this argument,
explaining that “[i]t would be strange indeed if the Constitution made judicial consideration
available to one who defies the legislature outright, but not to one like AT&T, who seeks an orderly
resolution.” Id. In sum, the D.C. Circuit rejected the submission that “Congress’ investigatory
power is absolute,” id. at 130, holding instead that in cases in which both the Executive and the
Legislative Branches assert constitutionally derived immunities, “claims of either … branch that
its determination of the propriety of its acts is conclusive” must be rejected. Id. at 127.
Dr. Kupperman’s case is materially indistinguishable from AT&T. As in that case, here the
evidence that the Executive asserts is immune from congressional subpoena is in the hands of a
third party, and as a result “the Executive is not in a position to assert its claim of constitutional
right by refusing to comply with a subpoena,” depriving the Executive of the ability to simply
withhold production. Id. at 129. As in that case, Dr. Kupperman “seeks an orderly resolution” of
the Constitutional conflict, and for this reason, the means “by which [he] here achieves judicial
consideration of his challenge is not properly subject to reproach as exalting form over substance.”

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Id. Of course, in AT&T, the Executive brought the action against AT&T seeking an injunction
barring compliance with the subpoena whereas here Dr. Kupperman brought the action against the
President (and the House Defendants) seeking a declaratory judgment. But that is a distinction
without a difference because a declaratory judgment action in this context is simply the mirror
image of an enforcement action by the Executive.
It is true that the AT&T Court noted that the “members of the Subcommittee are not,
themselves, made defendants in a suit to enjoin implementation of the subpoena,” id., apparently
distinguishing cases in which House Members are named as defendants involuntarily in the
complaint from cases, like AT&T, where they voluntarily intervene as defendants in order to
defend the House’s rights. Accordingly, it may be the case that the House Defendants other than
the Sergeant-at-Arms could insist upon their dismissal on Speech or Debate Clause grounds, but
that would not prevent the Court from proceeding to judgment on Dr. Kupperman’s declaratory
judgment action against the President and the Sergeant-at-Arms. And because Dr. Kupperman
takes no position on the merits of the constitutional dispute between the House and the President,
this course would simply leave the Legislative Branch without its own voice in the litigation, apart
from the Sergeant-at-Arms, to present the arguments in favor of the validity of its subpoena. That
is why the House routinely intervenes in cases, like AT&T, where the Executive seeks an injunction
against the third party recipient of a subpoena seeking evidence over which the Executive asserts
its own immunity. See, e.g., Consent Motion to Intervene, Doc. 12, Trump v. Mazars USA, LLP,
No. 19-1136 (D.D.C. Apr. 26, 2019) (consent motion permitting House Oversight Committee to
intervene to present House’s arguments in suit brought by President against recipient of House
subpoena in which the Committee argued it “has a significant interest in ensuring compliance with
its subpoenas”).

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The fact that the House issued the subpoena in support of impeachment proceedings also
does not change this analysis. Relying heavily upon Porteous v. Baron, 729 F. Supp. 2d 158
(D.D.C. 2010), the House argues that the Speech or Debate Clause bars this suit because Dr.
Kupperman “is challenging a legislative act by the House Defendants as part of their impeachment
inquiry, which the Constitution places within their ‘sole’ jurisdiction.” House MTD, Doc. 41 at 14
(citation omitted). But the House, by focusing exclusively on its impeachment powers, ignores the
unique, broader context of Dr. Kupperman’s suit—that he is caught between co-equal political
branches asserting constitutional authority over his testimony. As both AT&T opinions suggest,
the Speech or Debate Clause’s grant of absolute immunity for members of Congress does not apply
under these circumstances. This Court did not have the opportunity to consider the implication of
competing constitutional claims of the Executive and Legislative branches in Porteous, as it
involved a challenge by a federal judge to the procedures in his Senate impeachment trial. See 729
F. Supp. 2d at 160. And in considering the constitutional interests of judicial restraint with regard
to that impeachment proceeding, this Court explained that “it [was] not as if Judge Porteous ha[d]
no forum in which to voice his constitutional objection to the use of his immunized testimony,” as
the Senate could “grant the relief” he sought. Id. at 166. Because no such forum is available to Dr.
Kupperman, judicial resolution of this momentous constitutional question is necessary.
VI.

DR. KUPPERMAN STATES A CAUSE OF ACTION.
The President also argues that Plaintiff has failed to state a cause of action because his suit

does not qualify as an interpleader action contemplated under either Federal Rule of Civil
Procedure 22 or the Federal Interpleader Statute, 28 U.S.C. § 1335. See President MTD, Doc. 40,

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at 42–44. 27 This argument is deeply confused. It evinces both a mischaracterization of Plaintiff’s
complaint and a misunderstanding of blackletter civil procedure.
At the outset, interpleader is not a cause of action. It is a “joinder mechanism.” 1 Steven S.
Gensler, Federal Rules of Civil Procedure, Rules and Commentary (West 2019); see also
Commercial Union Ins. Co. v. United States, 999 F.2d 581, 584 (D.C. Cir. 1993) (describing
interpleader as a “procedural device”). The character of interpleader is all the more evident because
Rule 22 notes that it “supplements – and does not limit – the joinder of parties allowed by Rule
20.” FED. R. CIV. P. 22(b).
Dr. Kupperman has not brought his suit as an interpleader action, but rather has simply
described it as one sounding “in the nature of interpleader,” Complaint, Doc. 1, at 2, to emphasize
that Plaintiff initiated this action as a disinterested party, seeking only to satisfy his legal obligation
to either the House Defendants or the President, both of whom could otherwise bring a coercive
action against him to enforce what they assert are their legal rights. In this sense, Plaintiff’s suit is
analogous to interpleader, but it is not a strict interpleader action. Nor need it be. Rather, Plaintiff’s
declaratory judgment action resembles interpleader because both mechanisms “enable a defendant
to precipitate a plaintiff’s suit in order to avoid multiple liability or other inconvenience.”
Commercial Union Ins. Co., 999 F.2d at 585 (quoting Bell & Beckwith v. United States, 766 F.2d
910, 912 (6th Cir. 1985)); see also Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510 n.7

27

The President also argues that Plaintiff cannot state a cause of action under the
Declaratory Judgment Act. See President MTD, Doc. 40, at 44. Plaintiff does not dispute that the
Declaratory Judgment Act itself does not provide an independent cause of action, and only expands
the range of remedies available in the federal courts. See Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C.
Cir. 2011). But as explained below, Plaintiff’s cause of action is premised on the inherent equity
jurisdiction of the federal courts to address claims that federal entities violate the Constitution.
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(“Declaratory judgment and interpleader actions . . . may invert expected designations of plaintiff
and defendant”).
Missing the mark entirely, the President overlooks the obvious source of Plaintiff’s cause
of action: the traditional equitable powers of the federal courts to resolve constitutional disputes.
Time and time again, “[t]he Supreme Court has recognized an implied action for prospective relief
against allegedly unconstitutional actions by federal officials.” Del. Riverkeeper Network v. Fed.
Energy Regulatory Comm’n, 895 F.3d 102, 107 (D.C. Cir. 2018). For instance, in Free Enterprise
Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), the Court noted the
existence of an implied cause of action “as a general matter” to challenge federal governmental
action as violating the Constitution. Id. at 491, n.2; see also Correctional Servs. Corp. v. Malesko,
534 U.S. 61, 74 (2001) (explaining that equitable relief “has long been recognized as the proper
means for preventing entities from acting unconstitutionally”); Bell v. Hood, 327 U.S. 678, 684
(1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to
issue injunctions to protect rights safeguarded by the Constitution.”).
If there had been any doubt regarding the source of the cause of action to sue federal
officials for violating the Constitution, the Court resolved it several years ago in Armstrong v.
Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015). There, the Court rejected the argument
that the Supremacy Clause of the Constitution itself conferred a right of action to seek injunctive
relief against the enforcement of preempted state legislation. In reaching that conclusion, the Court
explained that the Clause could not be the source of relief because the Court had long held that
federal courts could enjoin not only “violations of federal law by state officials” but also
“violations of federal law by federal officials.” Id. at 1384 (citing Am. Sch. Of Magnetic Healing
v. McAnnulty, 187 U.S. 94, 110 (1902)). Instead, the Court made clear, “[t]he ability to sue to

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enjoin unconstitutional actions by state and federal officers is the creation of courts of equity.” Id.
at 1384. In other words, Plaintiff’s cause of action “arise[s] under federal common law.” D.C.
Ass’n of Chartered Pub. Schs. v. District of Columbia, 930 F.3d 487, 493 (D.C. Cir. 2019); see
also Armstrong, 135 S. Ct. at 1384 (calling such injunctive relief a “judge-made remedy”); cf.
Miers, 558 F. Supp. 2d at 94 (holding that cause of action existed under the Constitution).
This case falls squarely within this body of federal common law. Dr. Kupperman is under
conflicting commands of the political branches of the Federal Government, and one of those orders
must give way; that is, one of the competing demands exceeds the constitutional authority of its
author. Either the House’s subpoena must give way to the President’s Article II testimonial
immunity or the President’s assertion of immunity exceeds his Article II authority and impedes
the House’s lawful investigation pursued under its Article I impeachment power. See Complaint,
Doc. 1, at ¶ 2. One thing about this interbranch dispute is clear: It cannot be that both the House
Defendants and the President are acting constitutionally. And because Dr. Kupperman does not
know which Branch’s competing command is entitled to prevail, he has an equitable cause of
action against both.
CONCLUSION
For the reasons stated above, the Court should deny the House Defendants’ and President’s
motions to dismiss, and enter Declaratory relief on the merits.
November 27, 2019

Respectfully submitted,
/s/ Charles J. Cooper
Charles J. Cooper, Bar No. 248070
Michael W. Kirk, Bar No. 424648
J. Joel Alicea, Bar No. 1022784
Shelby Baird*

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COOPER & KIRK, PLLC
1523 New Hampshire Avenue, NW
Washington, DC 20036
Telephone: (202) 220-9600
Facsimile: (202) 220-9601
Email: ccooper@cooperkirk.com
Counsel for Plaintiff Charles M. Kupperman
*

55

D.C. Bar Application Pending; Admitted
in Pennsylvania