Transcript: No Show

Charles Kupperman didn’t show up for his deposition. How will this move affect the impeachment inquiry?
Image: The Capitol in Washington on Oct. 17, 2019.
The Capitol in Washington on Oct. 17, 2019.Brendan Smialowski / AFP - Getty Images file

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Article II: Inside Impeachment

No Show

Steve Kornacki: From NBC News, this is Article II: Inside Impeachment. I'm Steve Kornacki. Today is Monday, October 28th and here's what's happening.

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Adam Schiff: Today... Dr. Kupperman was scheduled to testify as part of the House Impeachment inquiry... for a previously scheduled deposition... and he was a no show. This is deeply regrettable.

Kornacki: House Intelligence chairman Adam Schiff addressing the press there after Charles Kupperman failed to testify in the Democrat's impeachment investigation. Kupperman is the former deputy National Security Advisor under John Bolton, and the two are long time associates.

In not showing up, Kupperman ignored a Congressional subpoena. His lawyer filed a lawsuit on Friday saying that Kupperman was caught between Congress and the White House. The suit asks the courts to decide whether Kupperman should testify.

Archival Recording: Quote, "Plaintiff obviously cannot satisfy the competing demands of both the legislative and executive branches. And he is aware of no controlling judicial authority definitely establishing which branch's command should prevail," the suit said.

Kornacki: Now, it's safe to say most people probably having heard of Kupperman before this week, but you probably have heard of John Bolton. Democrats say that Bolton's testimony would be key to their impeachment investigation, and this dispute with Charles Kupperman could be pivotal in deciding whether Bolton actually does testify. (MUSIC) Garrett Haake is MSNBC's Washington correspondent. He's also out there in his spare time covering (LAUGH) the presidential candidates out on the campaign trail. Garrett, thank you for joining us. Appreciate it.

Garrett Haake: You bet.

Kornacki: So Garret... this... this stand off now that... that's emerged... between... Charles Kupperman and... and Democrats in Congress, let me go back to where it started. Late last week with Democrats... issuing a subpoena. A subpoena to Kupperman. Why did Democrats subpoena him? What do they wanna hear from him? And... and... and also just who is he in general? It's a name that's probably (LAUGH) new to a lotta people.

Haake: Kupperman is a long-term aide and ally of John Bolton. He came with Bolton to the National Security Council when Bolton signed up for that job. And, most importantly for this whole effort, is he was on the phone call, listening to the phone call between President Trump and President Zelenskiy, which launched this whole deal here. And so Democrats have been slowly getting closer and closer to the people at the center of this, and, in this case, that means Kupperman.

Kornacki: Okay. So the Democrats issued a subpoena on Friday. I think it was last Friday.

Haake: Yeah.

Kornacki: What happened next?

Haake: It's the golden age of letter writing up here on Capitol Hill. So Kupperman gets his subpoena and at about the same time he gets a letter from the White House counsel exerting something called constitutional immunity, saying that he cannot and should not show up and testify on Monday before the House committees.

So what Kupperman and his lawyers do is they file a lawsuit in D.C. district court against both the White House and the House of Representatives, saying, "Kupperman is not a constitutional lawyer. He's caught in the middle of a dispute between two branches of the federal government, and he wants the third branch, the judiciary, to weigh in and tell him what he's supposed to do.

"Is he supposed to answer this subpoena from Congress or is he supposed to follow this direction from the executive branch? He doesn't wanna make that decision on his own, and he says it could cause irreparable harm to either party if he gets it wrong." And he says, you know, "Please, please... judges, help me out here."

Kornacki: So... so that term, by the way... I'm not... or I wasn't, at least, before the last, you know, (LAUGH) few days, that term constitutional immunity. You're saying the White House is claiming that, saying that should keep Kupperman from testifying. What... they say it's improper. What... what specifically would be improper in... in their... in their... interpretation?

Haake: So I'm not a constitutional scholar, but I did stay at a Holiday Inn Express last night. And I also read the filing here from Kupperman's attorneys. And the way they explain this, they talk about constitutional immunity as a executive branch privilege, going back to basically the 1940s when the executive office of the president first became a thing.

And the long and short of it is through constitutional immunity someone who works directly for the president, is directly a presidential advisor, cannot be compelled by Congress to testify about their day job. About what it is that they actually do for the president.

And one of the arguments here is it's this... in the same way in which the president can't compel a member of Congress to show up at the White House and answer to him or her, so too, they argue, can Congress not compel someone who's essentially an extension of the president, who works directly for the president of the United States, to show up and testify... essentially against the president.

And there's been some cases where this has been... appeared in... in front of the Supreme Court. Most recently in the Bush administration. But even then, the finding by the court was really narrow and prescribed just to that case. So they're looking for, in this lawsuit, a big constitutional answer to whether or not that claim of constitutional immunity would take precedence over a subpoena by the House of Representatives.

And not to make it even more complicated, but they also argue in this lawsuit whether or not the Congressional subpoena is even valid, because it comes from an impeachment inquiry that they say may or may not be legally valid in and of itself. So there's a lot of different constitutional issues here, all tangled up in a 17 page filing... about this one advisor's testimony.

Kornacki: So it's interesting, Kupperman is... is tryin' to kick this over to the courts. Not gonna be appearing... today, as Democrats were hoping he would. By the way, I... e... he is... John Bolton, or was, John Bolton's deputy. And if I understand this right, he shares a lawyer with John Bolton.

So this filing you're talking about, on behalf of Kupperman, was filed by the lawyer who also represents John Bolton. The layman would say... and the layman being me here, would say that suggests (LAUGH) John Bolton will pursue this same strategy if he is subpoenaed at some point? Does that sound fair to infer?

Haake: It certainly suggests that. Yeah, that's the inference I've been working under all day too. I see this in some ways as a proxy battle for Democrats and Bolton. You have to think that Bolton, and potentially other folks who are on the National Security Council, or in that silo at the White House, might look to this for guidance.

But certainly Bolton, who we know his attorneys had been talking to the committee about possibly testifying, but nothing's been committed to yet. So yeah, that's the secondary level of intrigue here. Is does whatever this court decides apply to Kupperman, then also become the standard that guides Bolton, who Democrats really wanna get into that room, and then maybe even potentially later into an open hearing.

Kornacki: And I see Kupperman's lawyer... he put out... a letter I think to House Democrats saying, "Hey look, if you prevail in court, he will happily testify." Is there an expectation that this will be resolved relatively quickly in the courts or, you know, often times it seems when these things get kicked to the courts, they are there for... for months or maybe even longer. Is there an expectation in the time table here for a resolution from the courts?

Haake: Yeah, and this is the problem for Democrats, right? They've said all along they wanna move quickly, they wanna move expeditiously. Adam Schiff said today he doesn't wanna get into this judicial rope-a-dope with the White House where they're just going back and forth in court filings.

There may come a point... and this is why the Bolton thing is so interesting here too. There may come a point where Democrats just decide, "This guy's testimony's not worth it. We don't wanna fight this out. We just wanna move on with what we've got."

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But if they move on and they don't fight this out in court, does that mean they lose Bolton too? I mean it's... it's a really interesting question, and it could gum up the works here for Democrats if they do in fact wanna focus on moving quickly here.

Kornacki: So... earlier today Adam Schiff mentioned something at a press conference in response to all of this that actually a lot of our listeners have been asking about. I mean we've been asking our listeners to send in questions. This is one of the things that comes up a lot. Schiff said that, "Because Kupperman is not showing up for his deposition, he could be held in contempt of Congress."

Schiff: We will obviously consider, as we inform Dr. Kupperman's counsel... his failure to appear as evidence that may warrant a contempt proceeding against him.

Kornacki: So contempt of Congress. What... what exactly is that and... and is that somethin' that could happen here?

Haake: It might, but in and of itself it doesn't have a lot of teeth. Congress doesn't have access to its own jail or police force. It has a very hard time, trying to levy fines or... or act independently when it has to behave like... a law enforcement body. Especially when it's trying to enforce something against somebody who's a member of the executive branch.

Again, I'm not a constitutional or legal expert in... in the traditional sense here. Just from having covered this kinda thing before, the way that a contempt order would be... would get some real teeth to it is if... you've heard this before, if it gets kicked over to the courts.

You know, a Congressional contempt order could become a civil contempt case, where a judge, just like... you know, in any other court of law, could impose fines on someone and can pose some other penalty, like if you were held in contempt of court.

But, once again, for Democrats, that kind of effort puts you into this trap where you're going back and forth with legal findings and filings and case... you know, appearances and appeals and on and on and on, where you get this dragged out for months and months and months.

And so even to hold someone in contempt might not be worth the trouble it... it causes. And much like the subpoenas themselves, a lot of this is in the... the appearance of power and authority. Once people start defying these things, it takes away from that.

And, again, this is the struggle for Democrats. How hard do you wanna fight someone not complying with your subpoenas? Or do you just say, as Democrats have started to, "We're gonna put this in a different bucket. We're gonna say this is obstruction and we're gonna move on."

Kornacki: Yeah, that... that's interesting. I think the other question there too, and... and you're getting at this, for Democrats, is... is... is time. I... I mean the example I think that's always out there when it comes to contempt of Congress is Eric Holder. You know, Barack Obama's attorney general.

Haake: Right.

Kornacki: I think it was in 2012 he was held in contempt of Congress and... and I think it was the... the court case that didn't end up finally getting resolved seven years later.

Haake: Right.

Kornacki: That gets to what...

Haake: Not a workbook timeline.

Kornacki: Right. No, I... seven years, no matter what... Donald Trump won't be president of the United States. But the... I think that does get to another question. Again, this came from another one of our listeners. This was Martha from St. Charles, Missouri.

Looking at that extremely long time table you normally get when... when issues like this get kicked to the courts, she said, "Would that be easier to enforce subpoenas, to get the courts to act more quickly, to get the courts to act more decisively, would the be easier for Democrats if they had a formal me..." so this whole question of a formal vote of the house to formally, officially open an impeachment inquiry. You know, the... it can do this in... in some form, obviously, without that vote, but would that vote make the courts take this more seriously, potentially, and maybe move more quickly?

Kornacki: Probably not. You... you know, you had a court ruling on Friday that this was a valid impeachment inquiry... in related to another case. But there's no magic bullet to voting for an impeachment inquiry. Remember, when this was done in the past, part of the reason it was done in the past were to expand the powers of the committees that we're investigating. To make sure that the committees had power to conduct depositions. Had power to issue subpoenas unilaterally, without having to get, you know, a more formal vote of the committee.

Over time, since the Nixon impeachment and certainly since the Clinton impeachment, Congress has expanded its own powers. Every, you know, couple years, every year in the new Congress they vote on a new rules package. And over time, those powers have expanded.

So in terms of what Congress can do, they don't need that vote. And it doesn't unlock some magical set of additional skills and abilities for members of Congress to have a formal vote. That is mostly a talking point, and mostly a matter of political appearances, more than it has any special legislative power.

Kornacki: The other thing you mentioned a minute ago too was the idea of Democrats just sort of moving away altogether from any legal proceedings. Talk more about that, if you would. This idea Democrats have put out there of, "Hey, by issuing that guidance, by claiming this... constitutional immunity, the... the term, the Democrats are saying, potentially, they will take that action by the White House and say, "That is evidence for impeaching the president."

Haake: Yeah. And if I were a betting man, I would say that this is the way this goes more broadly. Democrats have telegraphed that they might go this way, and we're seeing it happen in real-time now. That what you'll see Democrats do is potentially craft two articles of impeachment here.

One on the issues at hand, abuse of power, directly related to Ukraine. And another article would be just on obstruction of Congress, on the issues of all the ways in which the White House has stonewalled, has dragged their feet, has refused to comply with what Democrats will argue are totally legitimate oversight and legislative functions of the House, which in the constitution has the sole power of impeachment.

And you'll see, I think a lot of these things, be used as evidence towards that fact. So what you've had Adam Schiff say, the chairman of the house Intel committee, who's really the single person leading this effort right now, is if you don't show up, or if you don't respond to our subpoena, that'll tell us two things. It'll tell us that whatever we were going to ask you, or whatever we were asking from you, must be damning of the president. So we're gonna put that in our... article one bucket.

Schiff: If this witness had something to say that would be helpful to the White House, they would want him to come and testify. They plainly don't.

Haake: And you're not showing up. You're defying lawful orders. We're gonna put that in our article two bucket of your obstruction.

Schiff: Nonetheless we go forward, now armed with additional evidence of obstruction... as well as additional inferences that can be drawn that this witnesses' testimony would further incriminate the president of the United States.

Haake: And essen... potentially give the whole House two separate articles to vote on. The actually act here, the Ukraine related conspiracy, whatever you wanna call it, and everything the White House did from day one where the impeachment inquiry was opened with which they did not comply with Congress. And that seems to be the direction that they're moving.

Kornacki: It is interesting. That direction, if I'm understanding it right, the consequences that you're outlining there are obviously they... it seemed like they would fall really on the White House, on... on President Trump, and not so much on these individual witnesses, like... like Kupperman, who are refusing to... who are refusing, at least for now, to... to show up.

Does the prospect of that, does the prospect of having the House just deem this to be damning evidence and deem this to be evidence of obstruction, it... does that prospect rattle the White House at all? Are they expecting that? Would that possibly change their approach at all, the threat of that?

Haake: It's hard to say. The White House, everything that they have done so far suggests that the way they see getting through this is to make it as partisan of a process as possible. And Steve, I know I don't have to tell you, I mean that's exactly what Democrats did with Bill Clinton in the 1990s. Right?

To just make everything about the impeachment process seem intensely partisan and not related to the facts of the case. To make it sound like Democrats are on the absolute warpath going after this president, and bank hard on there not being enough Democrats who are willing to walk the plank on an impeachment vote. The Democrats could get a vote in the House on a party line vote.

And that they can scare or... or convince enough Republicans in the Senate to stay home and vote with the president should this get to the... to the Senate. It seems like the entire White House strategy is predicated on... on exactly that mission, and that no individual act or action is gonna scare them off of it, unless some other incredibly damning piece of evidence comes out that we haven't seen yet.

Kornacki: One other question, Garrett. Kupperman's decision to try to kick this over to the courts, to file that lawsuit, to say, "Hey, let a court decide it." Is there any sense that this is creating a precedent that other witnesses... the... the House, the Democrats wanna hear from, will now look at this and say, "Me too?"

Haake: Well, we talked about Bolton earlier, and I think that's a potential, you know, worry point for Democrats. But Tim Morrison, who's another NSC official, is scheduled to testify on Thursday. And as of late last week, his lawyer had already said he will appear... regardless of this lawsuit.

Now, I haven't seen that lawyer asked again, specifically, should, by some small miracle, this lawsuit be... adjudicated before Thursday, whether that will change things. But by and large, you know, there are other would-be witnesses here, there are other witnesses who've already been called, who had opportunities to try to hide behind White House claims, various White House claims of privilege or immunity who have not done so. There are at least some people who want to come out and have their say here, and it seems like they will do so.

Now, whether the court comes down really hard on the side of the White House, and that, you know, potentially scares some other White House or administration witnesses... away from testifying remains to be seen. But at least as of now there are still some witnesses in very similar positions to Charles Kupperman who are saying, "I'm still coming."

Kornacki: Garrett Haake. MSNBC Washington correspondent. Thank you so much for joining us.

Haake: You bet.

Kornacki: This afternoon, U.S. District Judge Richard Leon, a George W. Bush appointee, was assigned to Kupperman's case. This is the first dispute that deals directly with testimony from a potential witness in the House's impeachment inquiry. And late this afternoon Speaker Nancy Pelosi announced that the House will hold a vote this week.

She says the resolution, which is not yet publicly available, will affirm, quote, "The ongoing existing investigation, and that it will establish procedures for open hearings and for the release of deposition transcripts." And despite today's no-show, the House still has a full schedule of depositions set for this week.

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And we hope we answered some of your questions on Congressional subpoenas today. I mentioned we have been getting a ton on that. One of the reasons we brought it up in our conversation with Garrett was because so many of you had been asking about it.

And we wanna keep this going. We wanna keep hearing from you. Please, I implore you, I beg you, from the bottom of my heart, keep those questions coming. You can even send them to us on Twitter. How about this? We've got a hashtag, a Twitter hashtag. #ArticleIIPodcast. That's hashtag article I-I. Roman numerals here. Article II Podcast, or you could tweet me directly at @SteveKornacki.

You can also... how about this? This is old school. You can give us a call. We got a number set up. I was gonna say toll free. Unfortunately, it doesn't look like a toll free number. But we do have a number set up for you. It is 646-397-5166. You can pick up your phone, call that number and then leave a message with your question.

Let me give you that number again. 6-4... this is like a 1990s infomercial here. 646-397-5166. Leave us your voicemail. I... I... I like this one better. I get to hear your voices. And ask your question. Anything you wanna know about the impeachment process, and maybe, just maybe, it will become part of the show.

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Article II: Inside Impeachment is produced by Isabel Angel, Max Jacobs, Claire Tighe, Allison Bailey, Adam Noboa and Barbara Raab. Our executive producer is Ellen Frankman. Steve Lickteig is the executive producer of audio. I'm Steve Kornacki. We will be back on Wednesday.

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