The NPR Politics Podcast - Impeachment Inquiry Witness Asks Court To Weigh In On Congressional Subpoena

Episode Date: October 28, 2019

Investigators in the impeachment inquiry of President Trump hoped to talk to Charles Kupperman on Monday. But the former White House official failed to show up. This episode: White House correspondent Tamara Keith, White House correspondent Franco Ordoñez, and national political correspondent Mara Liasson. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey, this is Deb Abishan. I'm here with my three children, Aaron, Ian, and Molly. And we're at Uncle Bill's Pancake House in St. Louis celebrating finishing a half marathon together this year's Mother's Day gift. This podcast was recorded at 3.10 p.m. on Monday, the 28th of October. Things may have changed by the time you listen to this, like the fact that we will have each consumed 13.1 miles worth of food and hopefully be able to walk again. Enjoy the show. Oh, congratulations, guys. That is awesome. Yeah, it is pretty amazing. Half marathons are the best kind of marathons. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Franco Ordonez. I also cover the White House. And I'm Mara Liason, national political correspondent. So it may be only Monday right now, but this is our second podcast of the week.

Yesterday afternoon, we rushed into the studio to talk about the news that ISIS leader Abu Bakr al-Baghdadi is dead. There is a podcast in your feeds all about that, including the very unusual press conference that President Trump held to announce it. But that is yesterday's news. And today we are back on impeachment because a key witness did not show up this morning. Right, Franco? Right. Charles Kupperman. He is the former deputy national security adviser to John Bolton. He was supposed to testify this morning, but he didn't show up. The White House said he can't, claiming immunity from the investigation. Congress has issued a subpoena. Kupperman's attorney filed a lawsuit asking a judge to decide

whether he needs to abide by either the congressional subpoena or listen to the White House. He has key things to say. Democrats want to know from him or they want to hear from him because we know that National Security Council officials were concerned about the White House and its pressure that it was putting on Ukraine. Kupperman was in the room for some of these conversations. Democrats want him or hope he can corroborate some of the things that others have testified to, particularly that Trump pushed for a shadow foreign policy surrounding his personal attorney, Rudy Giuliani, to pressure Ukraine president and Ukraine government to investigate the Joe Biden and his son. Yeah, Mara, this is what you call a constitutional debate or a disagreement. Yes, this is a separation of powers battle. And what the White House has claimed is something called absolute testimonial immunity.

That is a very sweeping claim. It's not just executive privilege. It doesn't say that these people can't talk about the conversations they had with the president. They believe that the president can say, no one who worked for me, even if they're not in my employ right now, can testify. So it's a big battle. As Kupperman's lawyer said, it's a momentous constitutional dispute between two political branches of government. Kupperman says if the courts say that Congress's subpoena is the more powerful claim, he'll come up and testify.

Otherwise, he won't because the White House has told him not to based on this claim of immunity. So this is a big moment. And I think we should just explain why it is a big moment or an important part of the ongoing impeachment proceedings. It is big because this is a new and different challenge that the White House is making to the impeachment inquiry. They aren't just saying, you people at the State Department, you can't testify because this thing is illegitimate. They're saying, sure, it's illegitimate, but also we have special protections that say that close advisors to the president can't testify, so you can't go, Charles Kupperman. Well, it's saying the president gets complete control over anybody who works in or worked in the executive branch. And what's so ironic about this is that this view of almost unchecked executive power, something that the president believes in, Attorney General Bill Barr believes

in, and ironically, John Bolton, the former national security advisor, believes in, even though he's now, at least he hasn't gotten his subpoena yet, but his top advisor is caught right in the middle of. And if the courts rule in favor of the White House here, that will change the balance of power between the executive and legislative branches. Yeah, it's gonna be fascinating. And let's not forget, even if the judge rules in favor of the White House or in favor of the Democrats, it can also be appealed by each side. So this could be dragged on for some time period. I mean, I think that's part of the reason why you have Congressman Schiff, who is one of the three chairmen leading

this investigation, saying that, hey, we are going to move forward. We're going to push forward. And he's saying just Kupperman's absence amounts to an additional evidence of obstruction. But in time, they also withhold witnesses and force them to refuse to appear or attempt to ignore lawful process, they will merely build the obstruction case against the president. In terms of how we will use litigation or not use litigation, we are not willing to allow the White House to engage us in a lengthy game of rope-a-dope in the courts. So we press forward. OK, let's explain first what rope a dope is. It is a boxing term. Who to run out the clock. Yeah. I mean, it's like to pretend that you're feeling weak and avoid getting hit. And then you come back and bam. Is that right? Well, no, it's basically you run out the clock. You let the other guy punch at you while you're like Muhammad Ali quick on your feet, moving your head. And he gets exhausted by trying to punch you and he never gets to land a blow. But that's what the Democrats are worried about. They have a deadline and the White House knows it. And they want to finish this impeachment

procedure before anyone goes to the polls and votes either in the Iowa caucuses or the New Hampshire primary. And that clock is ticking. That's early next year. So we know that Congress has subpoenaed Kupperman. We know that the White House says he has immunity and they don't want him to testify. We know that Kupperman has filed a lawsuit to try to get the judicial branch to mediate this. When and how might this come to a head? Yes. I mean, he is saying that obviously there are two equal branches of government. You have the Congress and you have the White House. What he is saying is that there is no authority that has determined which of those two co-equal branches of government have authority and who, what demand his client needs to take. So he is asking a judge to make that decision.

And as you point out, trying to set some precedent. Yeah. And, you know, a lot of times these kind of questions are avoided like the plague. I mean, Robert Mueller decided not to try to subpoena the president. It would have gone all the way to the Supreme Court. He might have lost. The Supreme Court might have ruled that the president can't be subpoenaed. We don't know to this day if a president can be subpoenaed because it's never been challenged. We don't know whether a congressional subpoena overrules this concept of absolute testimonial immunity that the White House is claiming. This is something that that the executive branch, that the president, that the White House counsel, it is not just the Trump administration who's who has has tried to use this as a shield or has actually successfully used this as a shield. The courts have never resolved whether whether it takes precedence over a congressional subpoena. That's right. All right. We are going to take a quick break. And when we get back, we're going to talk about John Bolton, a blast from the past who could prove to be a central figure in the impeachment inquiry. This message comes from NPR sponsor CBSN, the live streaming video news channel from CBS News. CBSN is perfect for cord

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And he's like, no, no, my other dad, my other dad is dead. What if they're part of a phenomenon we're calling memory catching? Young children remembering details of past lives. On the latest episode of Invisibilia from NPR. And we're back. Mara, you have been working on a profile of John Bolton, the president's former national security advisor, who has now emerged as a major figure in this impeachment inquiry, though he hasn't yet been subpoenaed to testify.

And is it right that what happens with Kupperman, who we were talking about before, is likely to affect what happens with Kupperman, who we were talking about before, is likely to affect what happens with John Bolton. Well, it's very possible that what happens with Kupperman would affect what happens with John Bolton. They both had the same lawyer. They both worked very closely together for many years, decades before they came to the White House to work for Donald Trump. And what's ironic about Bolton's role in this is that in very colorful testimony from Fiona Hill and also from William Taylor, Bol they should have, quote, nothing to do with domestic politics, told her to brief the lawyers. He comes out as somebody who, although he's very conservative on foreign

policy, took a harder line on a lot of issues, Russia, Iran, North Korea, than the president was comfortable with. When it comes to this, he stood up for the process and wanted that military aid to go to Ukraine and didn't like the idea that it might be made contingent on the Ukrainian president announcing in public an investigation into Joe Biden. But what's ironic about it is he's also a big executive power guy. And over the years, he has written and talked about how he believes that the president really should get the ultimate say about anything that happens in the executive branch. And he would, in another guise, be completely for the White House being able to claim this very sweeping, broad, absolute testimonial immunity that they are doing now, at least to stop Kupperman from testifying. And now he's caught right in the middle of all of this. So if this were a TV show, right, like then the guy that was fired by tweet and was angry about the way that the president portrayed his resignation or non-resignation

would march up to Congress and testify and lead to the president's impeachment. Nope. This is not going to show. Not going to happen. No. Now. So, Mara, what makes you say that? What makes me say that is that John Bolton has very, very strong principles. He's never wavered from them for decades and decades. And to the very small extent that he has actually spoken out since he left the White House,

he has spoken out about policy, not about the president. He gave a speech about North Korea policy. He made it very clear that he disagrees with the president's policy. He never mentioned Donald Trump by name. Even the description of what he had to say about the Ukrainian aid episode had nothing to do with the president. He was pushing back against Giuliani and Mulvaney. He was not talking about the president. So I think that if he does end up testifying, he'll make a distinction about the three amigos, the people who were pushing this shadow foreign policy and the president himself. I mean, I would agree that he is not going to be the one with the pitchfork going toward to Congress and saying we're going to get rid of the president. That said, and this is not a TV show, this is real life,

he could, and I think that's part of the reason why House Democrats want to talk to him so much, is because he knows all the things. He knows where all, you know, for lack of words, he knows what's in the closets. And he can be pulling on the strings that could end up really turning this. And having served that high of a position and being the name that he is, he carries a lot of weight. Yes, he is the highest ranking White House official who pushed back against this scheme. And also, there are a lot of things that we don't know. Did Bolton ever talk to the president directly about this? We don't know that.

All right, we are going to leave that there. But before we go, we have some news. The House impeachment inquiry is moving into a new phase. House Speaker Nancy Pelosi sent a letter just now to House Democrats outlining the next steps in the inquiry. They later this week will vote on a resolution that, quote, establishes the procedures for hearings that are open to the American people, authorizes the disclosure of deposition transcripts, outlines procedures to transfer evidence to the Judiciary Committee as it considers potential articles of impeachment, and sets forth due process rights for the president and his counsel. In part, this comes in response to arguments from the president, his lawyers, and his allies on Capitol Hill that the impeachment inquiry was illegitimate because

there hadn't been a vote of the full House to authorize it. We will definitely cover this on the podcast later this week. All right, that is a wrap for today. I'm Tamara Keith. I cover the White House. I'm Franco Ordonez. I also cover the White House. And I'm Mara Liason, national political correspondent. And thank you for listening to the NPR Politics Podcast.