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Bolton not compelled to testify by McGahn order, lawyer says

Bolton's lawyer said a judge's decision to order testimony from Don McGahn, the former White House counsel, does not address a key issue.
Image: John Bolton
John Bolton speaks to reporters at the White House on May 1, 2019.Kevin Lamarque / Reuters file

WASHINGTON — The court ruling compelling former White House counsel Don McGahn to testify before the House Judiciary Committee has no bearing on whether ex-national security adviser John Bolton is compelled to testify, Bolton's lawyer said on Tuesday.

Charles Cooper, who represents Bolton and former deputy national security adviser Charles Kupperman, maintains that McGahn's case doesn't apply to his client's because Monday's court ruling does not answer whether presidential communications involving issues of national security are subject to "absolute testimonial immunity."

Bolton and Kupperman's responsibilities "are focused exclusively on providing information and advice to the President on national security," Cooper said in a statement.

House Democrats have sought the testimony of both Bolton and Kupperman. They have not subpoenaed Bolton and withdrew a subpoena for Kupperman, however, because his lawyer filed a lawsuit asking the courts to decide whether his client should follow instruction from Congress or the White House, which has told the officials not to testify.

It's unclear if Cooper's position would hold up in courts.

The judge in McGahn's case implied that national security does not protect from congressional oversight.

"And because the contention that a President's top advisors cannot be subjected to compulsory congressional process simply has no basis in the law, it does not matter whether such immunity would theoretically be available to only a handful of presidential aides due to the sensitivity of their positions, or to the entire Executive branch. Nor does it make any difference whether the aides in question are privy to national security matters, or work solely on domestic issues," Judge said.

Kupperman and Bolton would have information about the White House effort to pressure Ukraine to publicly announce an investigation into President Donald Trump's political rival by withholding a meeting at the White House and nearly $400 million in security aid.

House Democrats have also indicated that McGahn's court ruling by Federal District Court Judge Ketanji Brown Jackson does not have bearing on Bolton.

Democrats have indicated they have no plans to subpoena Bolton. They maintain that Bolton has been invited to come and be deposed — an offer that still stands.

Cooper said he will continue to seek a separate court ruling on whether Kupperman, and by default Bolton, can be compelled to testify.

"Dr. Kupperman will continue to pursue his lawsuit seeking an authoritative and binding judicial ruling resolving the question whether he is constitutionally obliged to obey the House's demand that he testify or the President’s conflicting demand that he decline to do so," Cooper said.

This is the same position that Cooper has had since Bolton and Kupperman were called in to be deposed. In a Nov. 8 letter to House Democrats, Cooper wrote that, "unlike McGahn, information concerning national security and foreign affairs is at the heart of the Committees' impeachment inquiry, and it is difficult to imagine any question that the Committees might put to Dr. Kupperman that would not implicate these sensitive areas."

"The same is true, of course, to Ambassador Bolton," Cooper said.

In his statement responding to the McGahn court decision, House Intelligence Committee Chairman Adam Schiff did not mention Bolton. "We would encourage witnesses to demonstrate the same courage and patriotism of public servants like Dr. Hill, Lt. Col. Vindman, Ambassador Taylor and others who have come forward to fulfill their duty," Schiff said.

On Monday, Schiff wrote in a letter to his colleagues: "While we will continue with our investigative work and do not foreclose the possibility of further depositions or hearings, we will not allow the President or others to drag this out for months on end in the courts."