On October 25, the Intelligence Committee issued a subpoena compelling Dr. Kupperman to appear at a deposition on October 28.244
Later that day, Dr. Kupperman's personal attorney sent an email to Committee staff attaching a 17-page complaint in federal court seeking a declaratory judgment as to whether he should comply with the subpoena.245 His counsel wrote:
Pending the courts' determination as to which Branch should prevail, Dr. Kupperman will not effectively adjudicate the conflict by appearing and testifying before the Committees.246
Enclosed as part of the complaint was a letter sent on October 25 from Mr. Cipollone to Dr. Kupperman's personal attorney stating that "the President directs Mr. Kupperman not to appear at the Committee's scheduled hearing on Monday, October 28, 2019."247 Also enclosed was a letter sent on October 25 from the Office of Legal Counsel of the Department of Justice, to Mr. Cipollone stating that Dr. Kupperman "is absolutely immune from compelled congressional testimony in his capacity as a former senior advisor to the President."248
On October 26, the Committees sent a letter to Dr. Kupperman's personal attorneys, stating:
In light of the direction from the White House, which lacks any valid legal basis, the Committees shall consider your client's defiance of a congressional subpoena as additional evidence of the President's obstruction of the House's impeachment inquiry.249
Later that day, Dr. Kupperman's personal attorney sent a letter to Committee staff, stating: "The proper course for Dr. Kupperman, we respectfully submit, is to lay the conflicting positions before the Court and abide by the Court's judgment as to which is correct."250 On October 27, Dr. Kupperman's personal attorney sent a letter to Committee staff, writing: "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."251
On November 5, the Committees sent a letter to Dr. Kupperman's personal attorneys withdrawing the subpoena, stating:
The question whether the Executive Branch's "absolute immunity" theory has any basis in law is currently before the court in Committee on the Judiciary v. McGahn, No. 19-cv2379 (D.D.C. filed Aug. 7, 2019). In addition to not suffering from the jurisdictional flaws in Dr. Kupperman's suit, McGahn is procedurally much further along.252
On November 8, Dr. Kupperman's personal attorney sent a letter to Douglas Letter, the General Counsel of the House of Representatives, stating that Dr. Kupperman stands ready to testify "if the Judiciary resolves the conflict in favor of the Legislative Branch's position respecting such testimony."253
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