How many people noticed this decision by Judge Richard Leon the day before New Year’s Eve? The DC circuit jurist’s dismissal of a challenge by Charles Kupperman to a House subpoena seems more like a footnote rather than a gravestone in the House’s impeachment project. The ruling’s immediate legal impact changed nothing, as Judge Leon essentially ruled that nothing was going on at all in the first place:

“The House clearly has no intention of pursuing Kupperman, and his claims are thus moot,” Leon wrote in his 14-page ruling. Kupperman’s continued pursuit of a legal answer to his twin directives was widely seen as a proxy for Bolton, who shares a lawyer with his former deputy. Bolton said he would not testify without a subpoena, and the House did not issue one for him.

Both Kupperman and Bolton have been described by people who did testify as key witnesses of Trump’s pressure campaign against Ukraine and decision to withhold appropriated military aid. House Democrats flagged Kupperman’s refusal to testify as more proof of Trump’s obstruction of Congress and declined to get bogged down in a long legal fight.

In fact, there’s even less at hand than the above suggests. As Leon pointed out in his ruling, Kupperman wasn’t even among the witnesses cited in the obstruction article of impeachment. The House’s distinct lack of interest in Kupperman’s testimony had been emphasized repeatedly by various attorneys representing the House Intelligence and Judiciary committees as well as by the speaker’s office, Leon noted:

And in any event, the House’s recent conduct outside this litigation confirms it will not take any further action against Kupperman. First, HPSCI released a report in early December summarizing the evidence gathered in its impeachment inquiry, which explicitly states that it “will not reissue” Kupperman’s subpoena. Impeachment Rep. at 281 n.255 ( emphasis added); House Defs.’ Notice at 1 [Dkt. #60]. Second, and even more significantly, the House has recently approved two Articles of Impeachment, neither of which mentions Kupperman. H. Res. 755, 116th Cong. (2019). Tellingly, one article contends the President obstructed Congress by “[ d]irecting current and former Executive Branch officials not to cooperate with the Committees.” Id. at 7. Indeed, it lists nine officials, and Kupperman is not among them! Id. This conduct is of course entirely consistent with the repeated representations that counsel for the House has made to this Court. The House clearly has no intention of pursuing Kupperman, and his claims are thus moot.

Over the weekend, Jonathan Turley argued that this dismissal and the mooting of Kupperman’s complaint demonstrated just how badly House Democrats’ impeachment had collapsed. Calling a lack of interest in actual witnesses “one of the most baffling blunders of this impeachment,” Turley wrote that this would go down as a “historic failure”:

The House elected to push through impeachment with an abbreviated period of roughly three months and declared any delay by Trump, even to seek judicial reviews, to be a high crime and misdemeanor. The administration is currently in court challenging demands for witnesses and documents. Just a couple weeks ago, the Supreme Court accepted one such case for review then stayed the lower court decisions ordering the production of the tax and finance records of Trump. The House impeached Trump before that court or other federal courts could rule on the merits of claims of presidential privileges and immunities. Both Bill Clinton and Richard Nixon had been able to take such challenges to the Supreme Court before they faced impeachment.

The House refused to seek to compel several witnesses in court, burning months in which it could have secured not just decisions in its favor but also testimony. Indeed, a year ago, I testified before the House Judiciary Committee and encouraged it not only to hold a vote on impeachment but to go to court to force testimony of figures like former White House counsel Donald McGahn. While refusing to use its impeachment powers with such a vote, it did take him to court. It won that case shortly before its impeachment vote. The case will be heard by the appellate court this week, even without being expedited for the impeachment investigation.

When faced with the embarrassing timing of that ruling after the hurried impeachment vote, House Intelligence Committee Chairman Adam Schiff insisted there was no time to waste in getting the case to the Senate and that “it has taken us eight months to get a lower court ruling” to compel McGahn to testify. But after members claimed there was a “crime spree in progress” and no time to waste, House Speaker Nancy Pelosi blocked any submission to the Senate to demand witnesses that the House unwisely omitted in its investigation. So it seems time is no longer of the essence.

But what about John Bolton’s announcement that he would cooperate with a Senate subpoena? Turley anticipated that argument as well:

Developments are unfolding from a former aide to Rudy Giuliani, who seeks to give new evidence that is relevant to impeachment. Giuliani himself was never subpoenaed and recently said he would be willing to testify. It is like pushing for a murder trial before an autopsy is completed because everyone has holiday plans. There are also new documents showing that Trump may have moved to freeze the military aid after speaking with the Ukrainian president. Those documents were produced after a trial court ordered their release under the Freedom of Information Act, and the administration did not appeal.

However, none of that is part of the impeachment record because it was more important to vote on it before Christmas than to build a full record before a trial. The nation will likely witness the collapse of a Senate trial on an incomplete record, as the witnesses and documents are still coming forward. Those Democratic voters who supported this premature act will be left to wonder, as did Doctor Seuss, “How did it get so late so soon?”

In other words, Turley argues that Bolton’s willingness to testify shows just how rash and political this impeachment turned out to be. There is certainly an element of that in Bolton’s statement, which sounds annoyed that the House didn’t allow the process to play out. In fact, Bolton scolds that “the House committee went so far as to withdraw its subpoena to Dr. Kupperman in a deliberate attempt to moot the case and deprive the court of jurisdiction.” That’s not someone who’s happy about the situation, and furthermore his volunteering makes it sound as if Bolton wants to restart the case:

It now falls to the Senate to fulfill its Constitutional obligation to try impeachments, and it does not appear possible that a final judicial resolution of the still-unanswered Constitutional questions can be obtained before the Senate acts.

Presumably the White House will once again object, Bolton will once again defer to the court, and the Kupperman case will get re-fought in principle. That will delay matters even further, which might be what Bolton wants — and no one knows what testimony he actually has anyway. Bolton might end up proving the wisdom of LBJ’s oft-cited warning about keeping people inside the tent, or he might just say that he has no direct witness testimony as to what was going on in Trump’s head. The longer this drags on, the more Democrats will try to distance themselves from it, and the more it will distract from their presidential and congressional campaigning. That will matter most in swing districts, where voters went with Democrats on the basis of policy corrections, not a session-long partisan war.

All of this underscores the bald political rush of House Democrats, to be sure. But at this point, does that matter much? The impeachment isn’t really collapsing — it’s just in stasis, both legally and politically. Regardless of what the Senate does with Bolton, stasis is where it will be from now on, too. It’s a partisan exercise, and almost everyone has chosen sides already on that basis. Turley’s writing for the ages, of course, but few if anyone in the Beltway has that kind of vision at the moment.