Former White House official won’t testify, lawyer says

by Rebecca Klar and Mike Lillis - 10/28/19 7:49 AM ET

A top aide to former White House national security adviser John Bolton will not testify before Congress on Monday as part of the ongoing impeachment inquiry into President Trump, his lawyer has told Democratic investigators.

Charles Cooper, the attorney for former Bolton aide Charles Kupperman, said his client will not testify until a court rules on a lawsuit surrounding his appearance, according to a letter delivered Sunday to Democrats on the House Intelligence Committee.

{mosads}”If your clients’ position on the merits of this issue is correct, it will prevail in court, and Dr. Kupperman, I assure you again, will comply with the Court’s judgment,” Cooper wrote to Daniel Noble, a Democratic attorney for committee.

Kupperman, the former deputy to Bolton, has been caught in a legal tug of war between a White House trying to block his testimony, citing executive privilege, and Democrats who have subpoenaed Kupperman to appear on Monday in the Capitol before the three House committees leading the impeachment probe.

On Friday, Kupperman filed a lawsuit, essentially asking the courts to rule on which side had the more compelling legal argument.

Democrats on the three committees fired back on Saturday, warning that Kupperman — now a private citizen — has a legal obligation to appear before Congress. A failure to do so, the committee chairs warned, could lead to charges of contempt of Congress.

“Notwithstanding this attempted obstruction, the duly authorized subpoena remains in full force and Dr. Kupperman remains legally obligated to appear for the deposition on Monday,” the letter by House Intelligence Committee Chairman Adam Schiff (D-Calif.), House Oversight and Reform Committee acting Chairwoman Carolyn Maloney (D-N.Y.) and House Foreign Affairs Committee Chairman Eliot Engel (D-N.Y.) said.

“The deposition will begin on time and, should your client defy the subpoena, his absence will constitute evidence that may be used against him in a contempt proceeding.”

Cooper, in his letter to Noble, said “it is not Dr. Kupperman who contests” the Democrats’ legal claim.

“It is President Trump, and every President before him for at least the last half century, who have asserted testimonial immunity for their closest confidential advisors,” Cooper wrote.

The White House successfully blocked former White House counsel Don McGahn from appearing before Congress pursuant to a subpoena earlier this year by asserting he is immune from compelled testimony. The developments have prompted a court fight.

Former White House communications director Hope Hicks also limited her testimony before the House Judiciary Committee on instructions from White House lawyers that she was immune from testifying on her work in the West Wing.

The concept of “immunity” of top presidential advisers from congressional testimony has been invoked by both Republican and Democratic administrations, but there is little case law on the subject.

Kupperman was reportedly on the July 25 call between Trump and Ukrainian President Volodymyr Zelensky that is at the center of the impeachment investigation into allegations that Trump solicited foreign leaders to help his reelection in 2020.

Schiff said Sunday that Bolton is also a “very important” witness and House Democrats want him to testify. But he’s already anticipating another standoff with the White House.

“My guess is they’re going to fight us having John Bolton in,” Schiff said on ABC’s “This Week.”

Morgan Chalfant contributed to this report, which was updated at 1:00 p.m.