KUPPERMAN v. HOUSE OF REPRESENTATIVES OF THE U.S.A.
1:19-cv-03224
| D.D.C. | Dec 30, 2019Background
- Dr. Charles Kupperman, former Deputy (and briefly Acting) National Security Advisor, was subpoenaed by the House Permanent Select Committee on Intelligence (HPSCI) on October 25, 2019 as part of the impeachment inquiry into President Trump.
- The President (through White House Counsel) directed Kupperman not to comply, asserting absolute immunity from compelled congressional testimony; Kupperman sued for a declaratory judgment to resolve the conflicting commands.
- The House and the President moved to dismiss; the court set an expedited schedule and heard argument on December 10, 2019.
- HPSCI withdrew Kupperman’s subpoena and the House represented repeatedly (in filings and at oral argument) that it will not reissue the subpoena or pursue contempt or enforcement against Kupperman; DOJ/Executive also represented no criminal prosecution would occur.
- The House released its impeachment report and approved articles of impeachment without naming Kupperman; the court found these facts corroborated the House’s commitments.
- The court concluded Kupperman’s suit is moot and dismissed the case (also denying as moot his motion to add the Sergeant at Arms).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case is moot after HPSCI withdrew the subpoena | Kupperman: withdrawal may be temporary; subpoena could be reissued, so controversy remains | House: subpoena withdrawn and the House unequivocally committed it will not reissue; thus no live controversy | Court: Moot — House's unambiguous representations (and corroborating conduct) defeat reasonable possibility of reissuance |
| Whether voluntary cessation and future enforcement (contempt/criminal) keep case live | Kupperman: voluntary cessation exception applies; representations by counsel are insufficient; House could pursue inherent contempt or criminal referral for past noncompliance | House & President: Government representations (House will not pursue enforcement; Executive will not prosecute) plus presumption of regularity make enforcement extraordinarily unlikely | Court: Moot — voluntary cessation exception not triggered; representations and context remove reasonable prospect of enforcement |
Key Cases Cited
- Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) (federal courts limited to Article III cases or controversies)
- Raines v. Byrd, 521 U.S. 811 (1997) (standing and justiciability principles under Article III)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (mootness: issues must remain live at all stages)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (controversy must exist throughout review)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) (voluntary cessation exception and burden to show no reasonable expectation of recurrence)
- Gordon v. Lynch, 817 F.3d 804 (D.C. Cir. 2016) (government counsel's representations can render a case moot)
- People for the Ethical Treatment of Animals v. U.S. Dep't of Agric., 918 F.3d 151 (D.C. Cir. 2019) (presumption of regularity for official acts supports crediting agency/official representations)
- Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (dismissing suit based on government's concession at oral argument)
- Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) (context on disputes over executive-branch immunity from compelled congressional testimony)