Charles Kupperman finds himself stuck between a rock and a hard place. On one hand, Donald Trump’s deputy national security adviser has been subpoenaed by Congress to testify about discussions surrounding Ukraine-Gate. On the other, his boss has claimed that the House’s impeachment inquiry is invalid and that executive privilege prevails over Adam Schiff’s ad hoc hearings. At stake is a contempt citation if Kupperman doesn’t comply.
Kupperman chose not to show up for his scheduled deposition, but he’s hoping Schiff et al will accept a sick note from a federal judge:
President Donald Trump’s former deputy national security adviser Charles Kupperman defied a congressional subpoena Monday, failing to appear for a closed-door deposition before House impeachment investigators and throwing a new hurdle into Democrats’ plans to quickly gather evidence in their inquiry.
Kupperman filed a lawsuit on Friday asking a judge to rule whether he had to comply with the House subpoena, given the White House’s stance that the impeachment inquiry is illegitimate. Kupperman’s attorney, Charles Cooper, argued that his client was caught between competing demands between the Executive and Legislative branches and needed the courts to rule before Kupperman would testify.
Schiff isn’t inclined to wait around. He claimed that the court would “make short shrift” of the argument, but in the meantime the House isn’t inclined to wait around. Schiff announced that his committee would next consider a contempt charge against Kupperman:
Schiff says that Kupperman's delay tactics may warrant contempt proceedings pic.twitter.com/Kl0lMSeenQ
— TPM Livewire (@TPMLiveWire) October 28, 2019
Reps. Jim Jordan and Mark Meadows argued that this reaction showed that the “inquiry” was nothing of the sort. It’s a “sham,” Meadows argued, that should be brought to a close, while Jordan told the press that Kupperman was willing to testify if a judge so ordered it.
It’s unclear what the rush is in this case. Kupperman clearly has resort to the judiciary when caught in such a vise, at least to make sure his own rights are protected. If the court will “make short shrift” of the argument, why not let it? In fact, it’s almost certain that courts will make short shrift of it, as one did late last week in dispensing with Trump’s argument that the House has to formally vote to open an impeachment inquiry before being able to compel testimony.
Furthermore, there’s nothing to suggest that Kupperman’s attempt to access due process is either contemptuous of Congress or obstructive of its ends, as Schiff also alleged today. It’s not as if this will hold up an impeachment vote, which isn’t scheduled in any case, or even public hearings, which also have yet to be scheduled. It’s a deposition, as Schiff and other Democrats keep reminding everyone, a preliminary step before going forward with an impeachment hearing. They still have time to depose Kupperman after courts “make short shrift” of the administration’s argument.
Why rush to a contempt citation? Schiff himself said that House Democrats are tiring of the White House’s legal strategy of using the courts to slow down the process, but again, presidents have the right to argue against potentially abusive use of subpoena power in regard to executive privilege, too. Democrats want to wrap up an impeachment before Thanksgiving, however, and fighting the administration in court over privilege might add months to that schedule, even if they win — which seems likely in this instance, but not necessarily assured.
That’s the real problem for Schiff. The longer impeachment drags out, the more voters will wonder why it’s necessary when Trump will have to run for re-election anyway. That threatens the standing of two dozen House Democrats who won election in Trump-friendly districts in 2018, where losses over Schiff’s chaotic stampede to impeachment might mean losing control of the chamber in 2021. Schiff started a process that Nancy Pelosi can’t afford to see through to the end if they play by the rules, and so Schiff’s trying to bully people out of their due process. Kupperman, for now, isn’t playing along, even if he might end up being a not-sympathetic witness to Trump.