However, the Kupperman suit appeared to be undercut Wednesday when the House panel withdrew the subpoena to the national security expert, who served as deputy to White House National Security Adviser John Bolton and as his acting replacement for a time. The action was widely seen as an attempt to scuttle the litigation and to signal that the impeachment inquiry would roll forward without the testimony of top Trump aides if they declined to appear.
Just a day after withdrawing Kupperman’s subpoena, the House committee issued one demanding Mulvaney’s testimony about his involvement in alleged attempts to link U.S. aid to Ukraine to a demand by Trump for that nation to launch an investigation that could be viewed as damaging to Democratic presidential candidate and former Vice President Joe Biden.
Kupperman did not immediately drop his suit after the subpoena was withdrawn, but it was unclear whether he could pursue the case to a resolution without an active dispute with Congress. Mulvaney appears to be in the position to do so at the moment, although he missed the Friday morning deadline to appear set by the committee just one day before.
“The question whether the President’s authority must give way in the face of a congressional subpoena—the determination Mr. Kupperman has asked this Court to make—is central to the question whether the House may take adverse action against Mr. Mulvaney, as threatened. For that reason, Mr.Mulvaney seeks to intervene here,” Mulvaney’s lawyers, William Pittard and Christopher Muha, wrote in the new filing.
Another pending lawsuit raising similar issues could get a ruling from another judge before Kupperman’s case is resolved. The House Judiciary Committee is suing former White House Counsel Don McGahn to enforce a subpoena issued over the summer, demanding his testimony about issues in Special Counsel Robert Mueller’s report.
Judge Ketanji Brown Jackson held arguments on the case last week and could rule on it soon.