Case 1:19-cv-03224-RJL Document 47 Filed 11/27/19 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHARLES M. KUPPERMAN,
Plaintiff,
v.

No. 19-cv-3224 (RJL)

UNITED STATES HOUSE OF
REPRESENTATIVES, et al.,
Defendants.

HOUSE DEFENDANTS’ MEMORANDUM OF LAW RESPONDING TO
PRESIDENT TRUMP’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii 
INTRODUCTION .......................................................................................................................... 1 
ARGUMENT .................................................................................................................................. 2 
I. 

ALL DEFENDANTS AGREE THAT THIS CASE IS MOOT ......................................................... 2 

II. 

KUPPERMAN IS NOT ABSOLUTELY IMMUNE FROM CONGRESSIONAL PROCESS .................... 4 
A. 

The Executive Branch Interests Purportedly Protected by Absolute Immunity
for Presidential Advisors Are Minimal ................................................................... 7 
1. 

Presidential Advisors Do Not Enjoy Absolute Immunity from
Compelled Congressional Testimony ......................................................... 7 

2. 

The Availability of a Qualified Privilege, Where Valid, Sufficiently
Protects Executive Branch Confidentiality Concerns ............................... 10 

3. 

Compelled Testimony from Presidential Advisors Does Not Encroach
on Executive Branch Prerogatives ............................................................ 12 

4. 

Presidential Advisors Have Testified Before Congress Throughout
History Without the Consequences the Executive Suggests..................... 15 

B. 

The House’s Interest in Performing Its Constitutional Functions Far Outweighs
the Executive Branch’s Interests in Absolute Immunity ...................................... 18 

C. 

President Trump Lacks Authority to Order Former Officials to Defy
Congressional Subpoenas ..................................................................................... 21 

CONCLUSION ............................................................................................................................. 23 

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TABLE OF AUTHORITIES
Cases
Bean LLC v. John Doe Bank,
291 F. Supp. 3d 34 (D.D.C. 2018) ...........................................................................................11
Blumenthal v. Drudge,
186 F.R.D. 236 (D.D.C. 1999).................................................................................................22
Brown v. Glines,
444 U.S. 348 (1980) .................................................................................................................22
Clarke v. United States,
915 F.2d 699 (D.C. Cir. 1990) ...................................................................................................3
Clinton v. Jones,
520 U.S. 681 (1997) .............................................................................................................5, 13
* Comm. on the Judiciary v. McGahn,
No. 19-2379, 2019 WL 6312011 (D.D.C. Nov. 25, 2019) .............................................. passim
* Comm. on the Judiciary v. Miers,
558 F. Supp. 2d 53 (D.D.C. 2008) .............................................................................4, 5, 10, 16
Comm. on Oversight & Gov’t Reform v. Holder,
979 F. Supp. 2d 1 (D.D.C. 2013) ...............................................................................................4
Dellums v. Powell,
561 F.2d 242 (D.C. Cir. 1977) ...................................................................................................5
Forrester v. White,
484 U.S. 219 (1988) ...................................................................................................................8
Gravel v. United States,
408 U.S. 606 (1972) ...................................................................................................................8
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ...............................................................................................................7, 8
In re Kessler,
100 F.3d 1015 (D.C. Cir. 1996) .................................................................................................7
McGehee v. Casey,
718 F.2d 1137 (D.C. Cir. 1983) ...............................................................................................22
McGrain v. Daugherty,
273 U.S. 135 (1927) ...................................................................................................................2

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Medellin v. Texas,
552 U.S. 491 (2008) .................................................................................................................21
Mistretta v. United States,
488 U.S. 361 (1989) .................................................................................................................12
Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425 (1977) .............................................................................................................5, 12
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .....................................................................................................7, 8, 9, 20
* Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) ...................................................................................5, 6, 10, 19
NLRB v. Noel Canning,
573 U.S. 513 (2014) .................................................................................................................17
In re Report & Recommendation of June 5, 1972 Grand Jury,
370 F. Supp. 1219 (D.D.C. 1974) ............................................................................................19
Riley v. Nat’l Fed’n of the Blind,
487 U.S. 781 (1988) .................................................................................................................21
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) .................................................................................................22
* Senate Select Comm. on Presidential Campaign Activities v. Nixon,
498 F.2d 725 (D.C. Cir. 1974) ...................................................................................................5
Snepp v. United States,
444 U.S. 507 (1980) .................................................................................................................22
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) .....................................................................................................................4
Trump v. Mazars USA, LLP,
940 F.3d 710 (D.C. Cir. 2019) .................................................................................................17
U.S. House of Representatives v. U.S. Dep’t of Commerce,
11 F. Supp. 2d 76 (D.D.C. 1998) ...............................................................................................4
United States v. AT&T, Inc.,
551 F.2d 384 (D.C. Cir. 1976) ...................................................................................................4
United States v. Burr,
25 F. Cas. 187 (C.C.D. Va. 1807) ..............................................................................................5

iii

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United States v. Marchetti,
466 F.2d 1309 (4th Cir. 1972) .................................................................................................22
* United States v. Nixon,
418 U.S. 683 (1974) ......................................................................................................... passim
Watkins v. United States,
354 U.S. 178 (1957) .....................................................................................................13, 15, 21
Whitney v. California,
274 U.S. 357 (1927) .................................................................................................................21
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .................................................................................................................21
U.S. Constitution and Statutes
U.S. Const., Art. I, § 2 ...............................................................................................................2, 18
U.S. Const., Art. II, § 2 ..................................................................................................................15
2 U.S.C. § 194 ..................................................................................................................................3
Legislative Materials
Jefferson’s Manual, H. Doc. No. 115-177 (2019) .........................................................................19
Pardon of Richard M. Nixon, and Related Matters: Hearing Before the Subcomm. on
Criminal Justice of the H. Comm. on the Judiciary, 93d Cong. (1974) ..................................15
Riddick’s Senate Procedure: Precedents and Practices (1992) ....................................................19
Sitting Presidents & Vice Presidents Who Have Testified Before Congressional
Committees, U.S. Senate (2017) ..............................................................................................15
U.S. Congress, House Committee on Armed Services, Inquiry into the Alleged
Involvement of the Central Intelligence Agency in the Watergate and Ellsberg
Matters, hearings, 94th Cong., 1st sess. (Washington: GPO, 1975) .................................16, 17
U.S. Congress, House Committee on Banking, Finance, and Urban Affairs, White
House Contacts with Treasury/RTC Officials About “Whitewater”-Related
Matters, Part 1, hearings, 103rd Cong., 2nd sess. (Washington: GPO, 1994) ........................16
U.S. Congress, House Committee on Government Reform and Oversight, White
House Compliance with Committee Subpoenas, hearings, 105th Cong., 1st sess.
(Washington: GPO, 1998) .......................................................................................................16

iv

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U.S. Congress, House Committee on Government Reform, Controversial Pardon of
International Fugitive Marc Rich, hearings, 107th Cong., 1st sess.
(Washington: GPO, 2001) .................................................................................................16, 17
U.S. Congress, Senate Committee on the Judiciary, Inquiry into the Matter of Billy
Carter and Libya, Vol. I, hearings, 96th Cong., 2nd sess.
(Washington: GPO, 1981) .......................................................................................................16
U.S. Congress, Senate Select Committee on Presidential Campaign Activities,
Presidential Campaign Activities of 1972, Book 1, hearings, 93rd Cong., 1st sess.
(Washington: GPO, 1973) .......................................................................................................17
U.S. Congress, Senate Select Committee on Presidential Campaign Activities,
Presidential Campaign Activities of 1972, Book 3, hearings, 93rd Cong., 1st sess.
(Washington: GPO, 1973) .......................................................................................................17
U.S. Congress, Senate Special Committee to Investigate the Whitewater
Development Corporation and Related Matters, Investigation of Whitewater
Development Corporation and Related Matters, Vol. II, hearings, 104th Cong.,
1st sess. (Washington: GPO, 1997) .........................................................................................16
Other Authorities
Debates in the Several State Conventions on the Adoption of the Federal
Constitution (John Elliot ed., 1881) .........................................................................................19
A Sitting President’s Amenability to Indictment and Criminal Prosecution,
24 Op. O.L.C. 222 (2000) ........................................................................................................20
Charles L. Black, Impeachment: A Handbook (1998) ...................................................................19

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INTRODUCTION
The House Defendants and Defendant President Donald J. Trump agree that this case is
moot and that this Court should dismiss the complaint for that reason. While President Trump,
represented by the Department of Justice (DOJ), raises various other arguments why this Court
lacks jurisdiction, the Court need not address those additional proposed grounds for dismissal,
given that no case or controversy survives the House Defendants’ withdrawal of the subpoena to
Plaintiff Charles M. Kupperman and House Defendants’ decision that it will not be reissued.
Because this case is moot, this Court should not consider DOJ’s argument that the
President may assert absolute immunity to prevent Kupperman from complying with the nowwithdrawn subpoena. But if the Court were to consider that argument, the Court should reject it
for the same reasons another judge of this Court rejected the same argument earlier this week.
See Comm. on the Judiciary v. McGahn, — F. Supp. 3d —, No. 19-cv-2379 (KBJ), 2019 WL
6312011, at *34-46 (D.D.C. Nov. 25, 2019), appeal filed, No. 19-5331 (D.C. Cir.).
Presidential aides—and Presidents themselves—have testified before Congress
throughout our Nation’s history, and the Supreme Court and the D.C. Circuit have repeatedly
rejected claims to absolute Presidential immunity. DOJ’s arguments with respect to
Kupperman—who no longer works in the White House and who served as Acting National
Security Advisor for only ten days—are far weaker than the immunity claims that courts have
already rejected. Courts have repeatedly refused to authorize the Executive to be the sole judge
of its own privilege, recognizing that the case-by-case application of settled privilege doctrines
adequately protects Executive autonomy. The same reasoning compels the same result here.
Allowing the President to thwart Congressional inquiries would upend the separation of
powers and impair Congress in the performance of its constitutional functions. The “power of
inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative

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function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). That power is at its peak when the
House is exercising its “sole Power of Impeachment.” U.S. Const., Art. I, § 2, cl. 5. It is
inconceivable that the same Constitution that gives the House the power to impeach a sitting
President requires the House to exercise that power with anything but comprehensive
information about the President’s misconduct. A President with unchecked power to obstruct his
own impeachment by preventing individuals with relevant information from speaking to
Congress would be a President who is above the law.
DOJ’s absolute immunity claim is particularly wrongheaded as to former Presidential
aides like Kupperman. The President has no authority to prevent private citizens from speaking
to Congress, and DOJ’s claimed authority to prevent Kupperman from speaking about matters of
pressing public concern raises serious First Amendment concerns given Kupperman’s
willingness to comply with the subpoena but for the President’s directive. Again, however, there
is no basis for this Court to resolve these merits questions because this case is plainly moot.
ARGUMENT
I.

ALL DEFENDANTS AGREE THAT THIS CASE IS MOOT
The House Defendants and DOJ agree that this case is moot because the subpoena at

issue has been withdrawn and will not be reissued.1 This Court should dismiss the case for that
reason without addressing any other issues.
In addition to contending that the case is moot, DOJ claims that Kupperman lacked
standing to challenge the subpoena even before it was withdrawn because the threat of future
enforcement of the subpoena was too remote to give rise to an Article III injury. Because the

1

See House Defs.’ Mot. to Dismiss (House Defs.’ Mot.) at 5-8 (Nov. 14, 2019), ECF No.
41; President Trump’s Mot. to Dismiss or, in the Alternative, for Summ. J. (DOJ Mot.) at 25-26
(Nov. 14, 2019), ECF No. 41.
2

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case would be moot even assuming Kupperman once had standing, the Court need not address
whether Kupperman ever had standing. But if the Court addresses that question, the House
Defendants note the following regarding DOJ’s arguments.
First, DOJ argues that Kupperman faces no impending threat of a contempt prosecution
for defying the subpoena because the Executive Branch would decline to bring such a
prosecution. DOJ Mot. at 13-15. When a witness summoned by the House fails to appear to
testify, the matter is normally referred to the appropriate U.S. Attorney, “whose duty it shall be
to bring the matter before the grand jury for its action.” 2 U.S.C. § 194. But given that the
subpoena to Kupperman has been withdrawn, the House Defendants will not initiate contempt
proceedings against Kupperman or refer his case for prosecution. Furthermore, the House
Defendants do not dispute that the Executive Branch is unlikely, on its own initiative, to
prosecute Kupperman in the circumstances of this case. See Clarke v. United States, 915 F.2d
699, 701 (D.C. Cir. 1990) (en banc) (holding that the possibility of future prosecution was too
remote to preserve a live controversy where the Executive disavowed an intent to prosecute and
stated that the plaintiff would have “a complete and adequate defense to any prosecution”).
Second, DOJ argues that the House is unlikely to exercise its inherent contempt powers to
sanction Kupperman for defying the now-withdrawn subpoena. DOJ Mot. at 15. The House
possesses the inherent authority to arrest and detain contumacious subpoena recipients. But the
House Defendants will not exercise that contempt power against Kupperman—via arrest by the
Sergeant-at-Arms, via the imposition of monetary fines, or via any other mechanism—for having
defied a subpoena that has since been withdrawn and will not be reissued.
Third, DOJ argues that Kupperman does not face a threat of a civil enforcement suit
initiated by the House Defendants. DOJ Mot. at 16-25; see also id. at 44. In pressing this claim,

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DOJ recapitulates the arguments that the Executive Branch has made in other litigation in which
House committees have filed suit to obtain information or testimony from the Executive.2 As
discussed at length in the House’s briefs in those cases, DOJ’s arguments regarding standing,
subject-matter jurisdiction, and the applicable cause of action are incorrect.3 Those arguments
cannot be reconciled with precedent, see United States v. AT&T, Inc., 551 F.2d 384 (D.C. Cir.
1976), and they have been rejected by every court to have considered them, see McGahn, 2019
WL 6312011, at *16-34; Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 21
(D.D.C. 2013); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008); see also
U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76 (D.D.C. 1998).
But this Court need not consider those arguments here. Kupperman does not face the
threat of a civil enforcement suit brought by the House for the simple reason that the House
Defendants have withdrawn the subpoena and will not reissue it. The House Defendants will not
bring a civil suit to enforce a subpoena that they have withdrawn.
II.

KUPPERMAN IS NOT ABSOLUTELY IMMUNE FROM CONGRESSIONAL PROCESS
For the reasons stated above and all those set forth in House Defendants’ motion to

dismiss, see House Defs.’ Mot. at 4-14, this Court lacks jurisdiction. “Without jurisdiction the
court cannot proceed at all in any cause,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998) (quotation marks omitted); dismissal is required. Yet were the Court to reach the merits,
it should deny DOJ’s motion for summary judgment and affirm that Kupperman would be

2

See, e.g., Def.’s Mot. for Summ J., McGahn, No. 19-cv-2379 (D.D.C. Oct. 1, 2019),
ECF No. 32; Defs.’ & Defs.-Intervenors’ Mot. to Dismiss, Comm. on Ways & Means v. Dep’t of
the Treasury, No. 19-cv-1974 (D.D.C. Sept. 6, 2019), ECF No. 44.
3
See, e.g., Pl.’s Opp’n to Def.’s Mot. for Summ J., McGahn, No. 19-cv-2379 (D.D.C.
Oct. 16, 2019), ECF No. 37; Pl.’s Opp’n to Mot. to Dismiss, Comm. on Ways & Means, No. 19cv-1974 (D.D.C. Sept. 23, 2019), ECF No. 55.

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legally obligated to testify before the Committee pursuant to a duly issued subpoena. See House
Defs.’ Mot. at 15-27.
The theory of absolute immunity that DOJ presses here is an invention of the Executive
Branch that has never been accepted by any court. Most recently—earlier this week—DOJ’s
absolute immunity theory was rejected by Judge Brown Jackson. See McGahn, 2019 WL
6312011, at *34-45. In 2008, it was rejected by Judge Bates. See Miers, 558 F. Supp. 2d at 99107. Even before that, in a series of decisions dating back more than two centuries, courts
repeatedly rejected claims of Presidential immunity similar to the claim that DOJ advances here.
The courts held that the President is not entitled to blanket immunity from criminal subpoenas,
see, e.g., United States v. Nixon (Nixon), 418 U.S. 683 (1974); Nixon v. Sirica (Sirica), 487 F.2d
700 (D.C. Cir. 1973) (en banc); United States v. Burr, 25 F. Cas. 187 (C.C.D. Va. 1807)
(Marshall, C.J.); from subpoenas in civil litigation, see Dellums v. Powell, 561 F.2d 242 (D.C.
Cir. 1977); or from private actions, even while the President is in office, concerning private
conduct, see Clinton v. Jones, 520 U.S. 681 (1997); see also Nixon v. Adm’r of Gen. Servs.
(Nixon v. GSA), 433 U.S. 425 (1977) (rejecting challenge by former President to legislation
concerning Presidential documents).
As particularly relevant here, the D.C. Circuit has rejected a claim of absolute
Presidential immunity with respect to a Congressional subpoena like the now-withdrawn
subpoena in this case. See Senate Select Comm. on Presidential Campaign Activities v. Nixon,
498 F.2d 725, 729-31 (D.C. Cir. 1974) (en banc). The D.C. Circuit explained that Presidential
communications are entitled to a presumption of confidentiality, but that this presumption is to
be evaluated on a case-by-case determination and can be overcome if the material sought is

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required for “the responsible fulfillment of the [Congressional] Committee’s functions.” Id. at
731.
Even in the context of requests for information from the President himself, therefore, it is
settled that “neither the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege.”
Nixon, 418 U.S. at 706. Instead, “application of Executive privilege depends on a weighing of
the public interest protected by the privilege against the public interests that would be served by
disclosure in a particular case.” Sirica, 487 F.2d at 716.
DOJ engages with essentially none of this precedent. Instead, DOJ quotes the language
that the courts have used to justify a qualified immunity and treats that language as if it supports
the absolute immunity that courts have in fact repeatedly rejected. DOJ’s assertion of absolute
immunity in this case therefore fails for the same reasons it has failed in prior cases. Requiring
Executive Branch officials to comply with Congressional subpoenas subject to application of a
qualified privilege, where appropriate, would not impair Executive interests. By contrast,
excusing Executive Branch officials from Congressional compulsion, particularly in the context
of an impeachment investigation, would interfere with the House’s exercise of its core Article I
functions.
As Judge Brown Jackson recently held, “not only [does] the principle of absolute
testimonial immunity for senior-level presidential aides ha[ve] no foundation in law, but [it]
also … conflicts with key tenets of our constitutional order.” McGahn, 2019 WL 6312011, at
*36. And because Kupperman is now a private citizen, the President has no authority to prevent
him from testifying before Congress should he wish to do so.

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A.

The Executive Branch Interests Purportedly Protected by Absolute
Immunity for Presidential Advisors Are Minimal

The Executive Branch invokes various interests that it claims support its sweeping theory
of absolute immunity, but none applies here. Indeed, DOJ’s arguments that Kupperman is
entitled to absolute immunity are far weaker than the arguments for immunity rejected by the
Supreme Court and the D.C. Circuit in cases involving the President himself.
1.

Presidential Advisors Do Not Enjoy Absolute Immunity from Compelled
Congressional Testimony

DOJ’s argument proceeds from the premise that “the President himself is absolutely
immune from testimonial compulsion by Congress.” DOJ Mot. at 31. DOJ then posits that the
President’s “immediate advisors must share in his absolute immunity.” Id. at 36. As to DOJ’s
premise, no court has held that the President himself has an absolute right to defy a subpoena to
testify before Congress, and the courts have rejected similar immunity claims in the context of
requests for documents. But this Court need not address DOJ’s premise, because whatever
immunity the President possesses from testimonial compulsion, that immunity is not shared by
Presidential advisors.
There is a “constitutional distinction between the President himself and subordinate
officers in the executive branch.” In re Kessler, 100 F.3d 1015, 1017 (D.C. Cir. 1996). “[F]or
purposes of separation of powers, the President stands in an entirely different position than other
members of the executive branch.” Id. Any immunity the President enjoys flows from his
“unique status under the Constitution,” which “distinguishes him from other executive officials.”
Nixon v. Fitzgerald (Fitzgerald), 457 U.S. 731, 750 (1982). For example, in Fitzgerald, the
Supreme Court held that the President himself has immunity from civil damages liability for his
official acts “[b]ecause of the singular importance of the President’s duties.” Id. at 751
(emphasis added); see id. at 749-50.
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The Supreme Court has declined to extend the President’s categorical immunity from
civil damage suits to Presidential advisors. In Harlow v. Fitzgerald (Harlow), the Court
reasoned that “the recognition of absolute [civil] immunity for all of a President’s acts in office
derives in principal part from factors unique to his constitutional responsibilities and station.”
457 U.S. 800, 811 n.17 (1982). The Court explained that “[s]uits against other officials—
including Presidential aides—generally do not invoke separation-of-powers considerations to the
same extent as suits against the President himself.” Id. Indeed, the Court in Harlow specifically
rejected the very argument that DOJ makes in this case—that Gravel v. United States, 408 U.S.
606 (1972), dictates the “conclusion that the President’s immediate advisors must share in his
absolute immunity from compelled congressional testimony.” DOJ Mot. at 35-36; see Harlow,
457 U.S. at 810.
It is precisely because the President’s “immunity … is based on the President’s ‘unique
position in the constitutional scheme’” that “it does not extend indiscriminately to the President’s
personal aides.” Forrester v. White, 484 U.S. 219, 225 (1988) (quoting Fitzgerald, 457 U.S. at
749). The President employs dozens of close advisors, none of whom is indispensable to the
functioning of the Executive Branch in the same manner as the President. Requiring Presidential
advisors to testify before Congress would not undermine “the effective functioning of
government.” Fitzgerald, 457 U.S. at 751. To the contrary, compliance with Congressional
requests for information is substantially less distracting to Presidential aides than the threat of
personal damages liability that the Supreme Court has already declined to extend beyond the
President himself. “[T]he proposition that senior-level presidential aides are entitled to absolute
testimonial immunity has no principled justification[.]” McGahn, 2019 WL 6312011, at *40.

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DOJ concedes that Harlow forecloses blanket immunity for Presidential aides. DOJ Mot.
at 35. DOJ nonetheless points to language in Harlow suggesting that immunity from civil
damages suits could apply to a narrow category of “aides entrusted with discretionary authority
in such sensitive areas as national security or foreign policy” when necessary “to protect the
unhesitating performance of functions vital to the national interest.” Id. at 35 (quoting Harlow,
457 U.S. at 812). But no court has in fact extended Presidential immunity to such aides, even in
the civil damages context, which is “very different” from these circumstances. See McGahn,
2019 WL 6312011, at *40 & n.31. In any event, DOJ misconstrues Harlow, which made clear
that absolute immunity cannot be justified by the “mere fact of high station.” 457 U.S. at 812.
DOJ’s argument here—that absolute immunity applies to the “President’s immediate advisors,”
DOJ Mot. at 34—advances the same broad standard that the Court in Harlow rejected.
The overbreadth of DOJ’s theory is illustrated by the President’s invocation of absolute
immunity with respect to Kupperman, who served as Acting National Security Advisor for ten
days and otherwise served in a less senior position in the White House for just over eight months.
DOJ’s arguments that Kupperman’s former duties qualify him for absolute immunity are
insufficient on their face. For example, DOJ claims that Kupperman travelled with the President
“on multiple occasions” and met with him “several times per week.” See DOJ Mot. at 37. But
the Supreme Court in Harlow rejected absolute immunity for a Presidential aide who “worked
from an office immediately adjacent to the oval office,” giving him “almost daily contact with
the President.” 457 U.S. at 804 & n.6. DOJ further argues that Kupperman is entitled to
absolute immunity on account of his position as “deputy to the National Security Advisor,” DOJ
Mot. 36, but the Court in Harlow refused to extend immunity to a “Counselor to the President, a
position accorded Cabinet status,” 457 U.S. at 802 n.1. It cannot be correct that Cabinet-level

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officials must comply with Congressional subpoenas but that less senior White House staffers
are absolutely immune. See McGahn, 2019 WL 6312011, at *45 (concluding that “absolute
immunity does not exist,” “whether the aides in question are privy to national security matters, or
work solely on domestic issues”).
2.

The Availability of a Qualified Privilege, Where Valid, Sufficiently Protects
Executive Branch Confidentiality Concerns

DOJ invokes generalized concerns about confidentiality to support the President’s
absolute immunity claim. But the Supreme Court has long held that such concerns are properly
addressed through the case-by-case assessment of a qualified privilege rather than an absolute
immunity from process. Nixon, 418 U.S. 683; see McGahn, 2019 WL 6312011, at *41 n.32
(when providing information to Congress, even senior Presidential aides with national security
duties would “have the right to withhold information on the grounds of an applicable privilege,
where appropriate,” such that absolute immunity is unjustified). “[A] claim of absolute
immunity from compulsory process cannot be erected by the Executive as a surrogate for the
claim of absolute executive privilege already firmly rejected by the courts.” Miers, 558 F. Supp.
2d at 103 (emphasis omitted).
DOJ repeatedly claims that absolute immunity is necessary to protect “the President’s
constitutionally protected interests in confidentiality” and his ability to “obtain sound and candid
advice.” DOJ Mot. at 34, 40. As the House Defendants have explained, however, see House
Defs.’ Mot. at 20, Nixon made clear that when the ground asserted for privilege over information
“is based only on the generalized interest in confidentiality, it … must yield to the demonstrated,
specific need for evidence,” 418 U.S. at 713. The President’s interest in confidentiality “is an
argument for recognizing Executive privilege … , not for making the Executive the judge of its
own privilege.” Sirica, 487 F.2d at 715.

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In rejecting the President’s absolute privilege theory in favor of a qualified privilege, the
Supreme Court in Nixon considered at length the very interests that the Executive Branch now
claims can be protected only through absolute immunity. See 418 U.S. at 711 (qualified, rather
than absolute, privilege satisfies “a President’s generalized interest in confidentiality”); id. at 708
(qualified, rather than absolute, privilege is sufficient to protect “the public interest in candid,
objective, and even blunt or harsh opinions in Presidential decisionmaking”). If disclosure of the
material at issue in Nixon—tape recordings of the President’s candid Oval Office conversations
with his closest advisors—did not unduly threaten the President’s interest in confidentiality, then
no greater threat is posed by disclosure of a Presidential advisor’s after-the-fact description of
such conversations. Just as in Nixon, “neither the doctrine of separation of powers, nor the need
for confidentiality of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial process under all circumstances.”
Id. at 706.
DOJ argues that a qualified privilege is insufficient to protect Executive confidentiality
interests because a Presidential advisor, under questioning from Congress, might “inadvertently
reveal sensitive information.” DOJ Mot. at 41. This concern is misguided. Congress frequently
receives privileged and classified information and knows how to adequately safeguard such
material. See, e.g., Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34, 40 (D.D.C. 2018) (Leon,
J.). Officials such as the directors of National Intelligence, the Central Intelligence Agency, the
National Security Agency, and the FBI regularly testify in open sessions of Congress without
divulging the Nation’s most sensitive secrets, despite testifying on the very topics that those
secrets encompass. Numerous witnesses have already testified pursuant to the House’s
impeachment inquiry regarding matters relating to national security. Although this testimony

11

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supports allegations of Presidential misconduct, DOJ does not suggest that this testimony has
jeopardized national security.
3.

Compelled Testimony from Presidential Advisors Does Not Encroach on
Executive Branch Prerogatives

DOJ’s remaining arguments rest on the erroneous premise that compelling Presidential
advisors to testify before Congress impermissibly “encroach[es]” on Executive authority. See
DOJ Mot. at 30. In rejecting a comparable claim to Presidential immunity, the Supreme Court
has disclaimed this “archaic view of the separation of powers as requiring three airtight
departments of government.” Nixon v. GSA, 433 U.S. at 443 (quotation marks omitted); see
Mistretta v. United States, 488 U.S. 361, 381 (1989) (“our constitutional system imposes upon
the Branches a degree of overlapping responsibility”).
DOJ asserts that Congressional questioning would interfere with the President’s “ability
to discharge his duties with the advice and assistance of his closest advisers.” DOJ Mot. at 33.
To the extent DOJ is claiming that pulling Presidential advisors away from their duties to testify
before Congress would disrupt the President’s ability to perform his Article II functions, those
concerns are not present in the case of former advisors like Kupperman, who left the White
House in September of this year. The President no longer relies on Kupperman’s counsel, and
testifying before Congress will not take Kupperman away from the business of advising the
President or otherwise impede his ability to facilitate Executive Branch functions. See McGahn,
2019 WL 6312011, at *42 (former officials “no longer have proximity to power”).
DOJ claims that compelling a Presidential advisor’s testimony would allow Congress to
“exert undue influence over the President’s decision-making” by “demanding that his advisors
justify or explain Executive actions and decisions.” DOJ Mot. at 33. But Congress’s “broad”
power of inquiry “encompasses inquiries concerning the administration of existing laws,”

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“includes surveys of defects in our social, economic or political system,” and “comprehends
probes into departments of the Federal Government to expose corruption, inefficiency or waste.”
Watkins v. United States, 354 U.S. 178, 187 (1957). Such inquiries require that Congress be able
to obtain information from the Executive Branch, subject to any valid assertions of qualified
privilege.
This is not “public spectacle,” DOJ Mot. at 39, but rather public accountability—which
serves a critical function in our system of balanced powers and has been the norm for decades.
See House Defs.’ Mot. at 24.4 Congress’s well-established power of inquiry means that
Executive Branch officials should expect to testify “about the operations of their offices.”
McGahn, 2019 WL 6312011, at *40 n.31. Because “Congress brings in witnesses … to provide
the Legislature with the information that it needs to perform” its constitutional functions, “the
idea that having to testify truthfully about the inner workings of government is a threat that
would actually be sufficient to prevent key public servants from competently performing as
assistants to the President seems anomalous.” Id. at *42.
Likewise, DOJ is incorrect to claim that a Presidential advisor’s appearance before
Congress would “promote a perception of Presidential subordination to Congress.” DOJ Mot. at
33. The exercise of Congress’s constitutional functions does not render the Executive
subordinate to Congress; it instead reflects the checks and balances intended by the Framers. See

4

DOJ appears to draw a distinction between the routine testimony of Cabinet members
and the testimony of Presidential advisors. See DOJ Mot. at 29. But many Cabinet members
over the years, such as Alexander Hamilton, William H. Seward, and Robert F. Kennedy, served
as extremely close advisors to Presidents. Henry Kissinger served as Secretary of State and
National Security Advisor simultaneously during the Nixon Administration. Biographies of the
Secretaries of State: Henry A. (Heinz Alfred) Kissinger (1923-), Dep’t of State,
https://perma.cc/AG8N-F4KV. DOJ does not explain why requiring Presidential advisors to
testify regarding executive decisions would “exert undue influence” on the President any more
than similar testimony by Cabinet members. DOJ Mot. at 33.
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Jones, 520 U.S. at 703 (“As Madison explained, separation of powers does not mean that the
branches ‘ought to have no partial agency in, or no controul over the acts of each other.’”
(quoting The Federalist No. 47, at 325-26 (J. Cooke ed., 1961)); Nixon, 418 U.S. at 707 (“In
designing the structure of our Government and dividing and allocating the sovereign power
among three co-equal branches, the Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were not intended to operate with absolute
independence.”). DOJ’s contention is no more correct in this context than it was in Nixon, in
which the Court compelled the Executive Branch to disclose information necessary to aid in its
Article III functions. 418 U.S. at 714. Compulsion of necessary information from a separate
branch did not create a perception of Executive subordination in Nixon, and it would not do so
here.
The Executive Branch’s interests in withholding testimony are particularly diminished in
this case, where the House Defendants sought to question Kupperman about Presidential
misconduct. Although the Constitution grants the President a wide range of Executive authority,
it does not grant him the power to abuse that authority or to carry out Executive functions
corruptly. To the extent that the President has abused his office, disclosure of that abuse would
protect rather than undermine constitutional principles. DOJ does not explain how Congress’s
ability to question Kupperman about Presidential misconduct would have an impermissibly
coercive effect on the President’s performance of his legitimate Article II functions. And
although DOJ cites various OLC opinions to support its aggressive claim of absolute immunity,
none of those opinions attempts to explain how absolute immunity for the President could
comport with Congress’s responsibilities in an impeachment inquiry.

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Finally, DOJ asserts that “compulsory testimonial process” could be used “to harass or
retaliate against the President’s immediate advisors” in an effort “to improperly influence or
interfere with Presidential decision-making.” DOJ Mot. at 40. But DOJ does not allege that the
subpoena issued to Kupperman was intended to harass or retaliate, nor could any such allegation
be sustained. The House Defendants are conducting a time-sensitive impeachment inquiry into
the President’s official conduct, and they sought testimony from Kupperman, who may have
witnessed impeachable conduct by the President. DOJ’s hypothetical concern that harassment
could occur in some future case does not support a sweeping recognition of absolute immunity
from all Congressional subpoenas. As the Supreme Court has made clear, “every reasonable
indulgence of legality must be accorded to the actions of a coordinate branch of our
government.” Watkins, 354 U.S. at 204.
4.

Presidential Advisors Have Testified Before Congress Throughout History
Without the Consequences the Executive Suggests

Although DOJ describes the “testimonial immunity of the President’s immediate
advisors” as an “unbroken tradition,” DOJ Mot. at 29, history shows the opposite.
Presidents Abraham Lincoln, Woodrow Wilson, and Gerald Ford all testified before
Congress while in office.5 President Ford testified before the House to explain his personal
decision-making process regarding his exercise of the pardon power, an authority assigned solely
to the President in Article II of the Constitution. Pardon of Richard M. Nixon, and Related
Matters: Hearing Before the Subcomm. on Criminal Justice of the H. Comm. on the Judiciary,
93d Cong. 90 (1974) (statement of President Ford); see U.S. Const., Art. II, § 2, cl. 1.

5

See Sitting Presidents & Vice Presidents Who Have Testified Before Congressional
Committees, U.S. Senate (2017), https://perma.cc/J2HH-X5WG.
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Many close Presidential advisors, including sitting and former White House Counsels,
have testified before Congress, particularly when Presidential misconduct was at issue. For
example, in 1973 and 1974, former White House Counsel Chuck Colson testified before
Congress multiple times regarding Watergate.6 As House Defendants have noted, see House
Defs.’ Mot. at 24, in 1980, then-White House Counsel Lloyd Cutler testified before the Senate
concerning alleged influence-peddling on behalf of Libya by President Carter’s brother.7 In
1994, Cutler again appeared before Congress to discuss issues related to Whitewater.8 In 1995,
former White House Counsel Bernard Nussbaum also appeared before the Senate to discuss
Whitewater.9 In 1997, then-White House Counsel Charles Ruff testified before the House about
White House compliance with Congressional subpoenas related to allegations of campaignfinance violations.10 In 2001, former White House Counsel Jack Quinn testified before the
House about President Clinton’s use of his pardon power.11

6

U.S. Congress, House Committee on Armed Services, Inquiry into the Alleged
Involvement of the Central Intelligence Agency in the Watergate and Ellsberg Matters, hearings,
94th Cong., 1st sess. (Washington: GPO, 1975), pp. 586ff, 1053ff.
7
U.S. Congress, Senate Committee on the Judiciary, Inquiry into the Matter of Billy
Carter and Libya, Vol. I, hearings, 96th Cong., 2nd sess. (Washington: GPO, 1981), p. 1195ff.
8
U.S. Congress, House Committee on Banking, Finance, and Urban Affairs, White
House Contacts with Treasury/RTC Officials About “Whitewater”-Related Matters, Part 1,
hearings, 103rd Cong., 2nd sess. (Washington: GPO, 1994), p. 12ff.
9
U.S. Congress, Senate Special Committee to Investigate the Whitewater Development
Corporation and Related Matters, Investigation of Whitewater Development Corporation and
Related Matters, Vol. II, hearings, 104th Cong., 1st sess. (Washington: GPO, 1997), pp. 1201ff.,
1326ff.
10
U.S. Congress, House Committee on Government Reform and Oversight, White House
Compliance with Committee Subpoenas, hearings, 105th Cong., 1st sess. (Washington: GPO,
1998), p. 219ff.
11
U.S. Congress, House Committee on Government Reform, Controversial Pardon of
International Fugitive Marc Rich, hearings, 107th Cong., 1st sess. (Washington: GPO, 2001), p.
309ff.

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Many Presidential advisors, including White House Counsels and national security
officials, have testified under compulsion. See Miers, 558 F. Supp. 2d at 102 (“[S]enior advisors
to the President have often testified before Congress subject to various subpoenas dating back to
1973.”). During Watergate, former White House Counsel John Dean, former Chief of Staff H.R.
Haldeman, and former Chief Advisor to the President for Domestic Affairs John Ehrlichman
testified before Congress under subpoena.12 In 1987, former National Security Advisor Oliver
North and former Assistant to the President for National Security Affairs John Poindexter
testified under subpoena about Iran-Contra. See House Defs.’ Mot. at 24 & n.9. And in 2001,
former White House Counsel Beth Nolan and former Chief of Staff John Podesta appeared
before Congress pursuant to a subpoena to testify about President Clinton’s use of the pardon
power.13
There is accordingly a well-established history of Presidential advisors, including those
with national security duties, testifying before Congress without in any way imperiling the
President’s ability to fulfill his Article II functions. Cf. NLRB v. Noel Canning, 573 U.S. 513,
524 (2014) (looking to history to inform consideration of separation of powers claim); Trump v.
Mazars USA, LLP, 940 F.3d 710, 735 (D.C. Cir. 2019) (same, noting that “a court would be
foolish to ignore th[e] branches’ prior pattern of conflict” or “cooperation” in deciding a
separation of powers claim). The frequency with which senior White House advisors have
testified before Congress illustrates that the Executive Branch’s practice has often been not to

12

Inquiry into the Alleged Involvement of the Central Intelligence Agency in the
Watergate and Ellsberg Matters at p. 867ff; U.S. Congress, Senate Select Committee on
Presidential Campaign Activities, Presidential Campaign Activities of 1972, Book 1, hearings,
93rd Cong., 1st sess. (Washington: GPO, 1973), pp. 75ff; U.S. Congress, Senate Select
Committee on Presidential Campaign Activities, Presidential Campaign Activities of 1972, Book
3, hearings, 93rd Cong., 1st sess. (Washington: GPO, 1973), pp. 911ff.
13
Controversial Pardon of International Fugitive Marc Rich at p. 309ff.
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stand in the way of these advisors’ testimony, particularly during significant Congressional
investigations of Presidential misconduct. Many of the same purported risks that the Executive
Branch claims undergird its absolute immunity theory—such as the purported appearance of
subservience, being asked to explain Executive decisions, and threats to confidentiality—are
equally present when the testimony is voluntary. The fact that none of these examples involved
a judicially enforced Congressional subpoena simply underscores that prior Presidential
administrations have been more prepared to abide by their obligations to Congress than this one.
B.

The House’s Interest in Performing Its Constitutional Functions Far
Outweighs the Executive Branch’s Interests in Absolute Immunity

Denying the President absolute immunity would not interfere with Executive Branch
prerogatives. By contrast, the President’s claim of absolute immunity “would upset the
constitutional balance of ‘a workable government,’” Nixon, 418 U.S. at 707, and gravely impair
the functions of Congress.
In Nixon, the Supreme Court rejected the Executive’s assertion of absolute privilege over
Presidential communications because “[t]he impediment that an absolute, unqualified privilege
would place in the way of the primary constitutional duty of the Judicial Branch to do justice in
criminal prosecutions would plainly conflict with the function of the courts under Art. III.” Id.
As the Court explained, withholding crucial evidence would impermissibly impair the Judicial
Branch’s truth-seeking function, leading to “a partial or speculative presentation of the facts” and
threatening “[t]he very integrity of the judicial system and public confidence in the system.” Id.
at 709.
The Nixon Court’s reasoning applies with particular force here. The House’s power of
testimonial compulsion is at its height during the constitutional impeachment process. In
exercising its “sole Power of Impeachment,” U.S. Const., Art. I, § 2, cl. 5, the House must gather

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necessary information, determine whether impeachment is warranted, and, if so, draft and vote
on specific articles of impeachment. Historically, once the House has adopted articles of
impeachment, Members of the House have then served as impeachment managers during the
Senate trial, presenting evidence relevant to the Senate’s consideration of whether removal is
warranted.14
When it was in force, the subpoena to Kupperman sought information related to “a matter
of the most critical moment to the Nation, an impeachment investigation involving the President
of the United States.” In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F.
Supp. 1219, 1230 (D.D.C. 1974).15 Just as federal courts need information to carry out their
exclusive Article III functions, the House needs access to all relevant facts during its
impeachment inquiry. That need supersedes the President’s generalized confidentiality interest.
See Nixon, 418 U.S. at 711; Sirica, 487 F.2d at 715 (rejecting absolute privilege claim in
response to grand jury subpoena); In re Report & Recommendation, 370 F. Supp. at 1230 (in the

14

See 3 Farrand’s Records 162 (“With regard to impeachments, the Senate can try none
but such as will be brought before them by the [H]ouse of [R]epresentatives.” (James Wilson));
Jefferson’s Manual §§ 607-609, H. Doc. No. 115-177, at 325-29 (2019) (role of House
impeachment managers); Riddick’s Senate Procedure: Precedents and Practices 865 (1992),
https://perma.cc/474G-N28M (“Once the House of Representatives has voted to impeach an
officer of the Government … the Senate is informed that managers on the part of the House of
Representatives have been named ‘to conduct the impeachment against’ such official and that the
managers are directed to carry to the Senate the articles agreed upon by the House.”).
15
See 4 Debates in the Several State Conventions on the Adoption of the Federal
Constitution (Elliot’s Debates) 44 (John Elliot ed., 1881) (The Impeachment Clause “empowers
the House of Representatives, which is the grand inquest of the Union at large, to bring great
offenders to justice.” (Archibald Maclaine)); 4 Elliot’s Debates 113 (The impeachment “power is
lodged in those who represent the great body of the people, because the occasion for its exercise
will arise from acts of great injury to the community, and the objects of it may be such as cannot
be easily reached by an ordinary tribunal.” (James Iredell)); see also Charles L. Black,
Impeachment: A Handbook 5-6 (1998) (The Constitution’s two-stage impeachment and removal
procedure is “analogous, obviously, to the two stages in traditional English and American
criminal law—‘indictment’ (or charge) by the grand jury, and ‘trial’ by another jury.”).
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impeachment context, “[i]t would be difficult to conceive of a more compelling need than that of
this country for an unswervingly fair inquiry based on all the pertinent information”). DOJ
tellingly does not attempt to argue that there are other ways for the House Defendants to obtain
relevant information during an impeachment. DOJ simply maintains that the House, and the
people House Members represent, should be content to do without.
The need to preserve the integrity of the constitutional process for considering
impeachment is particularly acute given that the Executive Branch has opined that a sitting
President cannot be criminally prosecuted, making Congress the last line of defense against
Presidential misconduct. See A Sitting President’s Amenability to Indictment and Criminal
Prosecution, 24 Op. O.L.C. 222, 257-58 (2000). If the President could deprive the House of
information required for its impeachment inquiry into his own misconduct, the President could
potentially thwart his accountability for that conduct.
A President with the power to obstruct his own impeachment through absolute immunity
would be a President who is “above the law.” McGahn, 2019 WL 6312011, at *45. Indeed, the
Supreme Court in Fitzgerald dismissed the contention that immunizing the President from civil
liability placed him “above the law” precisely because “[t]he remedy of impeachment
demonstrates that the President remains accountable under law for his misdeeds in office.” 457
U.S. at 758 n.41; see also A Sitting President’s Amenability to Indictment and Criminal
Prosecution, 24 Op. O.L.C. at 257 (it is “the constitutionally specified impeachment process”
that “ensures that [this] immunity would not place the President ‘above the law’”). Maintaining
the integrity of, and public confidence in, the primary method of holding the President
accountable for misconduct while in office is a quintessential situation in which the Executive’s

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“generalized interest in confidentiality … must yield to” the competing interests of a coequal
branch. Nixon, 418 U.S. at 713.
C.

President Trump Lacks Authority to Order Former Officials to Defy
Congressional Subpoenas

The President cannot prevent Kupperman from testifying before Congress should he
choose to do so. Kupperman correctly acknowledges that, when it was in effect, the disputed
subpoena imposed a legal obligation on him. Compl. ¶¶ 1-2; see Watkins, 354 U.S. at 187-88.
But Kupperman is incorrect in asserting that the President’s directive that Kupperman defy the
subpoena was a “competing” legal demand. Compl. ¶ 1. As House Defendants have explained,
even setting aside the invalidity of DOJ’s absolute immunity theory, the President’s directive
was unauthorized. See House Defs.’ Mot. at 25. “The President’s authority to act … ‘must stem
either from an act of Congress or from the Constitution itself.’” Medellin v. Texas, 552 U.S. 491,
524 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)). The
Executive Branch has not cited any constitutional or statutory provision authorizing the President
to direct citizens to defy Congressional subpoenas. No such authority exists.
Concluding that the President could prevent citizens from speaking to Congress would
raise serious First Amendment concerns given that Kupperman has stated his willingness to
comply with the subpoena but for the President’s directive. The Framers “eschewed silence
coerced by law,” and “they amended the Constitution so that free speech and assembly should be
guaranteed.” Whitney v. California, 274 U.S. 357, 376-77 (1927) (Brandeis, J., concurring).
“[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the
decision of both what to say and what not to say.” Riley v. Nat’l Fed’n of the Blind, 487 U.S.
781, 796-97 (1988). Accepting DOJ’s assertion that the President may entirely block
Kupperman from answering Congress’s call for information about matters of pressing public

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concern would substantially interfere with Kupperman’s right to free speech. See McGahn, 2019
WL 6312011, at *44 (“[A]s citizens of the United States, current and former senior-level
presidential aides have constitutional rights, including the right to free speech, and they retain
these rights even after they have transitioned back into private life.”).
In evaluating restrictions on the speech of current government officials, the Supreme
Court and the D.C. Circuit have required a showing that any restriction protects “‘a substantial
government interest unrelated to the suppression of free speech’” and that the restriction is
“narrowly drawn to ‘restrict speech no more than is necessary.’” McGehee v. Casey, 718 F.2d
1137, 1141 (D.C. Cir. 1983) (quoting Brown v. Glines, 444 U.S. 348, 354-55 (1980)). But
DOJ’s proposed restriction—a complete prohibition on the speech of certain current and former
aides when the President chooses to invoke absolute immunity—would allow the President to
impose a prior restraint on speech he fears would be personally damaging. And DOJ’s absolute
immunity theory is plainly not narrowly tailored given that the Presidential communications
privilege can be invoked on a question-by-question basis. See DOJ Mot. at 28.
DOJ’s claim to immunity is considerably weaker as to former employees like
Kupperman. Neither Kupperman nor DOJ has alleged that Kupperman remains subject to any
contractual agreement restricting his speech. Cf. Snepp v. United States, 444 U.S. 507, 509-11
(1980). The President “may not censor” Kupperman’s speech on unclassified matters,
“‘contractually or otherwise.’” McGehee, 718 F.2d at 1141 (quoting United States v. Marchetti,
466 F.2d 1309, 1313 (4th Cir. 1972)); see id. (“The government has no legitimate interest in
censoring unclassified materials.”). And the President may seek to invoke the Presidential
communications privilege over specific aspects of any testimony Kupperman might offer. See In

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re Sealed Case, 121 F.3d 729, 744-45 (D.C. Cir. 1997); Blumenthal v. Drudge, 186 F.R.D. 236,
241-42 (D.D.C. 1999).
Tellingly, although DOJ argues at length that Kupperman would face no consequences
from House Defendants by defying the now-withdrawn subpoena, see DOJ Mot. at 10-25, DOJ is
silent as to whether Kupperman would face consequences from the President were he to comply
with the subpoena. That silence suggests the obvious—the President’s directive is not backed by
the force of law, and the President could not take any action against Kupperman for simply
complying with Congress’s request for testimony.
In McGahn, Judge Brown Jackson recognized the consequences of accepting any claim
to the contrary. At oral argument in that case, when DOJ counsel was asked whether the
President’s claimed “power” to invoke the absolute immunity of Presidential advisors “is limited
to such aides’ communications with Congress in particular, or also extends to preventing his
aides from speaking to anyone else (e.g., the media) even after their departure from the White
House, counsel indicated that while the Executive branch has ‘not taken a position on that,’ [the
Executive] was ‘definitely not disclaiming that.’” 2019 WL 6312011, at *44. “This single
exchange—which brings to mind an Executive with the power to oversee and direct certain
subordinates’ communications for the remainder of their natural life—highlights the startling and
untenable implications of DOJ’s absolute testimonial immunity argument, and also amply
demonstrates its incompatibility with our constitutional scheme.” Id.
CONCLUSION
The House Defendants respectfully request that this Court dismiss this action.

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Respectfully submitted,
/s/ Douglas N. Letter
Douglas N. Letter (DC Bar No. 253492)
General Counsel
Todd B. Tatelman (VA Bar No. 66008)
Deputy General Counsel
Megan Barbero (MA Bar No. 668854)
Associate General Counsel
Josephine Morse (DC Bar No. 1531317)
Associate General Counsel
Adam A. Grogg (DC Bar No. 1552438)
Assistant General Counsel
William E. Havemann (VA Bar No. 86961)
Assistant General Counsel
OFFICE OF GENERAL COUNSEL*
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, DC 20515
Telephone: (202) 225-9700
douglas.letter@mail.house.gov
Counsel for the House Defendants
November 27, 2019

*

The Office of General Counsel wishes to acknowledge the assistance of law clerks
Christine Coogle, a student at The George Washington University Law School, Lily Hsu, a
student at The George Washington University Law School, and Nate King, a student at The
Catholic University of America, Columbus School of Law, in preparing this brief.

24

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHARLES M. KUPPERMAN,
Plaintiff,
v.

No. 19-cv-3224 (RJL)

UNITED STATES HOUSE OF
REPRESENTATIVES, et al.,
Defendants.

HOUSE DEFENDANTS’ RESPONSE TO PRESIDENT TRUMP’S
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
For the reasons explained by the House Defendants in their motion to dismiss and in their
brief in response to Defendant President Donald J. Trump’s motion for summary judgment, this
Court should deny President Trump’s motion for summary judgment as moot after dismissing
this case for lack of jurisdiction. Nonetheless, pursuant to LCvR 7(h)(1), the House Defendants
respond as follows (underlined text) to Defendant Trump’s Statement of Material Facts Not in
Dispute (Nov. 14, 2019), ECF No. 40-1:
1. Plaintiff Charles M. Kupperman (“Dr. Kupperman”) served as Deputy National
Security Advisor from January 9, 2019, to September 20, 2019. Decl. of Matthias J. Mitman
(“Mitman Decl.”) (filed herewith) ¶ 10.


Undisputed.

2. Dr. Kupperman also served as Acting National Security Advisor from September 10,
2019, to September 20, 2019, after Mr. Bolton’s departure from office. Id.


Undisputed.

 Case 1:19-cv-03224-RJL Document 47-1 Filed 11/27/19 Page 2 of 7
 
 
 

3. The National Security Advisor is a senior aide in the Executive Office of the
President who serves as the principal in-house advisor to the President on domestic, foreign,
economic, and military issues, whether discrete or far-reaching, affecting national security. Id.
¶ 7.


Defendant Trump has not defined “senior aide.” Undisputed that the National
Security Advisor advises the President, but that is not a material fact under Fed. R.
Civ. P. 56.

4. The Deputy National Security Advisor is a direct report to the National Security
Advisor who works in close operational proximity to the President. Id. ¶ 8.


Defendant Trump has not defined “close operational proximity.” Undisputed that the
Deputy National Security Advisor is a direct report to the National Security Advisor,
but that is not a material fact under Fed. R. Civ. P. 56.

5. Like the National Security Advisor, the Deputy National Security Advisor holds the
title of Assistant to the President, which designates him or her as one of the President’s most
senior aides. Id. ¶ 9.


Defendant Trump has not defined “most senior aides.” Undisputed that the Deputy
National Security Advisor holds the title of Assistant to the President, but that is not a
material fact under Fed. R. Civ. P. 56.

6. During his tenure as Deputy National Security Advisor, Dr. Kupperman was the sole
deputy to then-National Security Advisor Bolton, and thus Dr. Kupperman’s portfolio as Deputy
National Security Advisor included all issues of national security arising during his tenure, and
was not limited to specific subsets of issues or particular geographic areas. Id. ¶ 11.

2

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

House Defendants lack information to independently assess what issues Kupperman’s
portfolio comprised. Undisputed that, during his tenure as Deputy National Security
Advisor, Kupperman was the sole deputy to then-National Security Advisor Bolton,
but that is not a material fact under Fed. R. Civ. P. 56.

7. Dr. Kupperman spent the majority of his time as Deputy National Security Advisor
advising or preparing advice for the President, and ensuring appropriate implementation of the
President’s decisions by responsible agencies and officials. Id. ¶ 12


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

8. With rare exceptions, during Dr. Kupperman’s tenure, all national-security issues
presented to the President for decision would first be raised with both then-National Security
Advisor Bolton and Dr. Kupperman, as the Deputy National Security Advisor, for assessment of
the relevant facts, information, and policy considerations, and formulation of appropriate advice.
Id. ¶ 13.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

9. Dr. Kupperman was responsible for amassing and integrating information and advice
from all pertinent Executive Branch agencies and officials, and making recommendations to
NSA Bolton and/or the President, on virtually all issues of national security requiring decisionmaking by the President. Id.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

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10. He was also frequently tasked with responsibility for communicating the President’s
decisions to responsible Executive Branch agencies and officials, and ensuring thereafter that the
President’s directives were appropriately implemented in a coordinated fashion and in harmony
with U.S. law and policy and national-security objectives. Id.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

11. As Deputy National Security Advisor, Dr. Kupperman met with the President
multiple times per week, generally to advise on national-security issues, and he regularly
participated in Oval Office meetings pertaining to foreign policy. Id. ¶ 14.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

12. Dr. Kupperman was also one of approximately a half-dozen close aides generally
present at the President’s meetings with foreign leaders and on Head of State calls, and he was a
central participant in the Presidential briefings that often preceded such communications. Id. ¶
15.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

13. Dr. Kupperman regularly attended meetings of the National Security Council
Principals Committee (the Cabinet-level interagency forum for the consideration of nationalsecurity policy issues) also attended by the President’s senior-most advisors, including Cabinet
Secretaries, and National Security Council Meetings chaired by the President. Id. ¶ 16.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.
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14. Dr. Kupperman also chaired meetings of the Deputies Committee, the senior
subcabinet forum for consideration of national-security policy issues, regularly attended by the
Deputy Secretaries of State, Treasury, Defense, Energy, and Homeland Security, and the Deputy
Attorney General. Id.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

15. As National Security Advisor, Mr. Bolton typically traveled at least once per month
and usually for multiple days at a time. Id. ¶ 17. When Mr. Bolton traveled, Dr. Kupperman
stepped directly into his shoes and served as the President’s primary point of contact on all
national security matters. Id. During these occasions, Dr. Kupperman met with the President
with increased frequency and attended the Presidential Daily Brief on intelligence matters. Id.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

16. Dr. Kupperman also traveled internationally with the President on multiple occasions,
including when Mr. Bolton was traveling separately. Id.


House Defendants lack information to independently assess this assertion which, in
any event, is not a material fact under Fed. R. Civ. P. 56.

17. On October 25, 2019, the House Permanent Select Committee on Intelligence
(“HPSCI”) issued a subpoena to Dr. Kupperman directing him to appear at a deposition before
the Committee on October 28, 2019, “as part of the House’s impeachment inquiry” into matters
relating to foreign policy with Ukraine. Complaint, Ex. A, ECF No. 1-1 at 2.


Undisputed that HPSCI issued a subpoena to Kupperman on October 25, 2019,
directing him to appear at a deposition before HPSCI on October 28, as part of the
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House’s impeachment inquiry. Disputed that the scope of the House’s impeachment
inquiry is limited to “matters relating to foreign policy with Ukraine.” See, e.g., H.
Res. 660, 116th Cong. (2019); H. Rep. No. 116-266 (2019).
18. On October 25, 2019, the President, through counsel and on advice of the Department
of Justice Office of Legal Counsel (“OLC”)[,] [declared] that Dr. Kupperman is absolutely
immune from compelled congressional testimony with respect to matters related to his service as
a senior advisor to the President, [and] directed Dr. Kupperman not to appear at the October 28
deposition. Id. Ex. B, ECF No. 1-2 at 2-3.


Undisputed.

19. Dr. Kupperman did not appear at the October 28 deposition. See ECF No. 22 ¶ 1.
The deposition has not been rescheduled.


Undisputed.

20. HPSCI withdrew the subpoena to Dr. Kupperman that is the subject of this suit on
November 5, 2019, id. ¶ 2; see also ECF No. 22-1 at 2, and the House Defendants subsequently
notified the Court that they “have determined that they will not reissue a subpoena to
Kupperman,” ECF No. 29 at 1. Accordingly, no consequences have befallen Dr. Kupperman—
or are reasonably likely to befall him—as a result of his failure to appear at the scheduled
deposition.


Undisputed that HPSCI withdrew the subpoena to Kupperman on November 5, 2019,
and that House Defendants will not reissue it; and, accordingly, that House
Defendants will not initiate contempt proceedings against Kupperman or refer him for
prosecution under 2 U.S.C. § 194 concerning the now-withdrawn subpoena; will not
exercise the House’s power of inherent contempt against Kupperman—via arrest by
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the Sergeant-at-Arms, via the imposition of monetary fines, or via any other
mechanism—concerning the now-withdrawn subpoena; and will not bring a civil suit
against Kupperman to enforce the now-withdrawn subpoena. Otherwise, outside any
allegations in Kupperman’s complaint—and none seem relevant—House Defendants
lack information to independently assess the full range of “consequences” that may
have “befallen Dr. Kupperman … as a result of his failure to appear at the scheduled
deposition,” but that is not a material fact under Fed. R. Civ. P. 56.
Respectfully submitted,

/s/ Douglas N. Letter
Douglas N. Letter (DC Bar No. 253492)
General Counsel
Todd B. Tatelman (VA Bar No. 66008)
Deputy General Counsel
Megan Barbero (MA Bar No. 668854)
Associate General Counsel
Josephine Morse (DC Bar No. 1531317)
Associate General Counsel
Adam A. Grogg (DC Bar No. 1552438)
Assistant General Counsel
William E. Havemann (VA Bar No. 86961)
Assistant General Counsel
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
Telephone: (202) 225-9700
douglas.letter@mail.house.gov
Counsel for the House Defendants
November 27, 2019

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