Judicial opinion responding to Congress-executive clash is essential

President Donald Trump continues to challenge the legal validity of numerous investigative subpoenas made by House committees. Trump generally advances two theories to support his challenges. The first is based on the lack of a valid "legislative purpose," which has been claimed in various cases demanding his financial records and tax returns. The second is a generalized claim of absolute immunity for presidential advisors from giving compelled testimony and documents concerning their official duties.

Charles M. Kupperman is the former national security advisor and acting national security advisor to Trump. He also was on the phone call between Trump and the president of Ukraine, Volodymyr Zelensky, that is being investigated by the House of Representatives as part of its impeachment inquiry.

On Oct. 25, Kupperman was subpoenaed to appear and testify before the House of Representatives. Rather than showing up, he filed a complaint in federal district court for a declaratory judgment against both Trump and the House of Representatives (19-cv-3224, D.D.C.).

In the lawsuit, Kupperman argues that the subpoena to appear and testify irreconcilably conflicts with the direction from the president that he should not appear and testify. The conflicting demands, he argues, placed him on the horns of a constitutional dilemma. On the one hand, if he appeared contrary to the direction from Trump and the White House counsel, he may "unlawfully impair the President in the exercise of his core national security responsibilities" under Article II of the U.S. Constitution. As a close personal advisor, Trump maintains that Kupperman is immune from congressional process.

On the other hand, not appearing may unlawfully impede the House from carrying out the impeachment process, which is one of its most important constitutional responsibilities under Article I. It may also expose himself to potential criminal liability for contempt of Congress.

Kupperman argues he should not be forced to adjudicate the dispute between Congress and the executive branch. The judiciary should decide what he should do, citing the traditional role of the courts recognized in Marbury v. Madison. More specifically, he asks the court to decide whether the president's claim of absolute immunity for a senior advisor overrides the House subpoena.

Kupperman maintains he is in an untenable situation because "no definitive judicial authority" exists. In Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C. 2008), which involved the forced resignation of U.S. attorneys, the district court held that the absolute immunity claim was unsupported by existing case law. Therefore, former White House Counsel Harriet Miers was ordered to testify and produce all non-privileged documents. But the court also said in dicta that absolute immunity may be warranted for presidential advisors in cases involving national security or foreign affairs. This is the only case that comes close to providing guidance.

The Office of Legal Counsel maintains that the president and his advisors are immune from testimonial compulsion by congressional committees on matters related to their official duties. Because the president has absolute immunity from compulsory attendance, so should his advisors. But the OLC's legal position has never been adopted, sanctioned or in any way approved by a court.

A judicial opinion responding to this constitutional clash between Congress and the executive branch is essential. Some may argue that his lawsuit is simply an artful dodge designed to delay the House moving forward. If this is the strategy, it is doomed. Unlike Kupperman, some officials from the Trump administration are bravely ignoring the direction not to appear. John Bolton, who was sacked by Trump as national security advisor and was Kupperman's boss, may appear before the House. In any event, the facts surrounding the events surrounding Trump's actions in dealing with Ukraine are slowly emerging, and the impeachment inquiry is moving forward. 