Case 1:19-cv-03224-RJL Document 26 Filed 11/08/19 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CHARLES M. KUPPERMAN,
)
)
Plaintiff,
)
)
JOHN MICHAEL MULVANEY,
)
)
Proposed Intervenor-Plaintiff,
)
)
v.
)
Civil Action No. 1:19-cv-03224-RJL
)
UNITED STATES HOUSE OF
)
REPRESENTATIVES,
)
)
Defendant,
)
)
THE HONORABLE DONALD J. TRUMP,
)
in his official capacity as President of the
)
United States,
)
)
Defendant,
)
)
THE HONORABLE NANCY PELOSI,
)
in her official capacity as Speaker of the
)
United States House of Representatives,
)
)
Defendant,
)
)
THE HOUSE PERMANENT SELECT
)
COMMITTEE ON INTELLIGENCE,
)
)
Proposed Defendant,
)
)
THE HONORABLE ADAM B. SCHIFF,
)
in his official capacity as Chairman of the
)
House Permanent Select Committee
)
on Intelligence,
)
)
Defendant,
)
)

 Case 1:19-cv-03224-RJL Document 26 Filed 11/08/19 Page 2 of 9

THE HOUSE COMMITTEE ON FOREIGN
AFFAIRS,

)
)
)
Proposed Defendant,
)
)
THE HONORABLE ELIOT L. ENGEL,
)
in his official capacity as Chairman of the
)
House Committee on Foreign Affairs,
)
)
Defendant,
)
)
THE HOUSE COMMITTEE ON OVERSIGHT
)
AND REFORM,
)
)
Proposed Defendant,
)
)
THE HONORABLE CAROLYN B. MALONEY, )
in her official capacity as Acting Chair of the
)
House Committee on Oversight and Reform,
)
)
Defendant.
)
__________________________________________)
MOTION TO INTERVENE
John Michael Mulvaney, through undersigned counsel, respectfully moves under Federal
Rule of Civil Procedure 24 to intervene as a plaintiff in this matter against (1) the following
current Defendants: the United States House of Representatives; Representative Nancy Pelosi,
Speaker of the House of Representatives; Representative Adam B. Schiff, Chairman of the
House Permanent Select Committee on Intelligence; Representative Eliot L. Engel, Chairman of
the House Committee on Foreign Affairs; and Representative Carolyn B. Maloney, Acting Chair
of the House Committee on Oversight and Reform; and (2) three entities not currently defendants
in this matter: the House Permanent Select Committee on Intelligence; the House Committee on
Foreign Affairs; and the House Committee on Oversight and Reform (collectively with the
current Defendants, the “House Defendants”).

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Mr. Mulvaney, like Plaintiff Charles Kupperman, has been issued a subpoena by the
House Permanent Select Committee on Intelligence to give testimony on matters concerning his
official duties “as part of the House of Representatives’ impeachment inquiry.” See Exhibit 1
(email transmitting subpoena and subpoena) at 1. Also like Mr. Kupperman, Mr. Mulvaney was
directed by the President not to comply with the subpoena, after the President obtained an
opinion from the Department of Justice’s Office of Legal Counsel (“OLC”) concluding that close
personal advisors of the President, like Mr. Mulvaney, are immune from congressional process—
a position OLC consistently has maintained, across Democratic and Republican administrations
alike, for almost 50 years. See Exhibit 2 (Letter of Pat Cipollone to William Pittard and attached
OLC opinion).
Despite his unquestioned status as a close and senior advisor to the President, and the
longstanding bipartisan position of that branch regarding the compelled congressional testimony
of such advisors, the House Defendants threaten to hold Mr. Mulvaney in contempt or otherwise
take adverse action against him for obeying the directive of the head of his branch. The question
whether the President’s authority must give way in the face of a congressional subpoena—the
determination Mr. Kupperman has asked this Court to make—is central to the question whether
the House may take adverse action against Mr. Mulvaney, as threatened. For that reason,
Mr. Mulvaney seeks to intervene here.
BACKGROUND
Mr. Mulvaney is the Acting White House Chief of Staff and the Director of the Office of
Management and Budget. On Thursday, November 7, 2019, at 6:36 p.m., the House Defendants
emailed him a subpoena commanding him to testify, fewer than 15 hours later, about his official
duties in connection with the United States’ relations with Ukraine. Exhibit 1 at 1 (requiring

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testimony at 9:00 a.m. on Friday, November 8, 2019). On the morning of November 8, before
the time designated for Mr. Mulvaney’s testimony, the White House Counsel transmitted a letter
to undersigned counsel asserting the “constitutional immunity of current and former senior
advisors to the President” and instructing Mr. Mulvaney not to testify in response to the
subpoena, “in order to protect the prerogatives of the Office of the President today and in the
future.” Exhibit 2 at 2.
The President’s direction was backed by a legal opinion issued by OLC, which the White
House Counsel attached to his letter. As described more fully in the attached proposed
complaint, the OLC opinion explained that, under both Democratic and Republican
administrations, OLC consistently has concluded that close personal advisors of presidents are
immune from compelled congressional testimony. Exhibit 2 at 3-4. It further concluded that Mr.
Mulvaney, as the Acting White House Chief of Staff, qualified as just such an adviser. Id.
In their email attaching their subpoena, however, the House Defendants threatened to
take action against Mr. Mulvaney if he failed to comply with the demands of that subpoena—
even if his refusal came “at the direction or behest of the President,” the head of Mr. Mulvaney’s
branch of government. See Exhibit 1 at 1. The House’s email specifically threatened to initiate
“a contempt proceeding” against him, or to draw some unspecified “adverse inference against”
him, if he refused to comply with the subpoena. The House Defendants, in other words, have
threatened—and currently do threaten—to take action against a member of a co-equal branch of
government for acceding to an order of the head of his branch where that order is one
consistently deemed lawful by Democratic and Republican administrations alike.

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ARGUMENT
I.

MR. MULVANEY IS ENTITLED TO INTERVENE AS OF RIGHT.
Federal Rule of Civil Procedure 24 states that a party may intervene in an existing matter

as of right when he or she “claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as a practical matter
impair or impede the movant’s ability to protect its interest, unless existing parties adequately
represent that interest.” Fed. R. Civ. P. 24(a)(2). The D.C. Circuit, “[p]arsing the language of
the rule,” has held “that qualification for intervention as of right depends on the following four
factors”:
(1) the timelines of the motion; (2) whether the applicant claims an
interest relating to the property or transaction which is the subject
of the action; (3) whether the applicant is so situated that the
disposition of the action may as a practical matter impair or
impede the applicant’s ability to protect that interest; and
(4) whether the applicant’s interest is adequately represented by
existing parties.
Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (citations and quotation
marks omitted). Mr. Mulvaney satisfies all four factors.
First, Mr. Mulvaney’s motion to intervene is timely. Mr. Mulvaney received the
subpoena in question yesterday at 6:36 p.m. and was commanded to appear this morning at 9:00
a.m. Exhibit 1 at 1. He files this motion on the same day that he was commanded to appear.
Second, Mr. Mulvaney claims an obvious interest in the “relevant ‘transaction’” here:
the House Defendants’ decision, in their ongoing impeachment inquiry, to issue subpoenas to
close personal advisors of the President. Fund for Animals, Inc., 322 F.3d at 735 (identifying
“the relevant ‘transaction’” supporting intervention as of right as the “decision to permit the
importation” of certain animals). Mr. Mulvaney and Mr. Kupperman both were issued

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 Case 1:19-cv-03224-RJL Document 26 Filed 11/08/19 Page 6 of 9

deposition subpoenas as part of the same impeachment inquiry, and both were threatened with
adverse action if they chose to obey Presidential direction rather than comply. See Exhibit 1 at 1
(Mulvaney); ECF No. 1-1 at 2 (Kupperman).
Third, the disposition of this action clearly “may as a practical matter impair or impede”
Mr. Mulvaney’s ability to perform the duties of his job without fear of adverse action by the
House Defendants. A ruling that Mr. Kupperman was obligated to comply with the subpoena
directed to him, despite the President’s instruction, could subject Mr. Mulvaney to adverse action
by the House, precisely as the House Defendants already have threatened.
Fourth and finally, Mr. Mulvaney’s interest is not adequately represented by
Mr. Kupperman. Unlike Mr. Kupperman, Mr. Mulvaney is a current member of the Executive
Branch, and thus remains a subordinate of the President subject to his present direction.
Additionally, Mr. Mulvaney is both a closer and a more senior adviser to the President than was
Mr. Kupperman. In his capacity as Acting White House Chief of Staff, and in his capacity as
Director of the Office of Management and Budget, Mr. Mulvaney occupies Cabinet-level
positions in the Executive Branch. And, as the Acting White House Chief of Staff,
Mr. Mulvaney is among the most regular advisors of the President. In short, there are reasons
unique to Mr. Mulvaney’s position that might form the basis of a judicial ruling against the
House Defendants’ threatened actions, reasons that Mr. Kupperman necessarily cannot advance.
II.

ALTERNATIVELY, MR. MULVANEY SHOULD BE GRANTED PERMISSION
TO INTERVENE.
Federal Rule of Civil Procedure 24 also allows a court to “permit anyone to intervene

who . . . has a claim or defense that shares with the main action a common question of law or
fact.” Fed. R. Civ. P. 24(b)(1)(b). Permissive intervention under Rule 24(b) “‘is an inherently
discretionary enterprise’ that affords the Court ‘wide latitude.’” Sault Ste. Marie Tribe of

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 Case 1:19-cv-03224-RJL Document 26 Filed 11/08/19 Page 7 of 9

Chippewa Indians v. Bernhardt, 331 F.R.D. 5, 9 (D.D.C. 2019) (quoting E.E.O.C. v. Nat’l
Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998)).
Mr. Mulvaney respectfully requests that the Court exercise its discretion to allow him to
intervene here. Mr. Mulvaney asserts the same “claim” as Mr. Kupperman, and he “shares with
the main action” not just one, but several “common question[s] of law or fact.” Fed. R. Civ. P.
24(b)(1)(B). Both men have been subpoenaed in connection with the same impeachment
inquiry. Both have received the same type of subpoena, for deposition testimony. Both are
subpoenaed in connection with work at the White House, and specifically as close personal
advisers to the President there. Both received Presidential direction to act as they did, which
direction was supported by OLC opinions describing a longstanding bipartisan position on the
issue. And both are now faced with an assertion from an equally powerful branch that they must
ignore that longstanding bipartisan position or suffer consequences. These “issues,” furthermore,
are of a “time-sensitive nature,” as this Court recognized in setting its first status conference in
this matter. See Minute Order (Oct. 28, 2019). Allowing Mr. Mulvaney to intervene in an action
that already is underway, and proceeding on an appropriately aggressive briefing schedule,
affords him the greatest chance to obtain timely resolution of these issues.
III.

ALLOWING MR. MULVANEY TO JOIN THE HOUSE COMMITTEES AS
DEFENDANTS WILL NOT UNDULY PREJUDICE THE EXISTING PARTIES
OR DELAY RESOLUTION OF THEIR CLAIMS.
In addition to intervening against the current House Defendants, Mr. Mulvaney seeks to

join the three House committees conducting the impeachment inquiry, whose chairs already are
Defendants here. He moves to do so now, rather than separately at a later time after the Court
has granted him leave to intervene (should it so grant), because of the speed at which this matter
is rightly progressing. Allowing him to join those three committees now, at the time that he

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 Case 1:19-cv-03224-RJL Document 26 Filed 11/08/19 Page 8 of 9

intervenes against the current House Defendants, will do nothing to prejudice the existing parties
or delay adjudication of the claim at issue. The chair or acting chair of each committee already
appears as a defendant, and it is the committees’ actions in issuing the subpoenas that is the focus
of the claims of Mr. Kupperman and Mr. Mulvaney. The committees will be represented by the
same attorneys who are representing their chairs and the other House Defendants.
Mr. Mulvaney, furthermore, does not expect to ask the Court to extend the currently-imposed
briefing schedule. He therefore respectfully requests, should this motion be granted, permission
to join as Defendants the House Permanent Select Committee on Intelligence, the House
Committee on Foreign Affairs, and the House Committee on Oversight and Reform.
CONCLUSION
The issues implicated by this motion are significant for the country generally and for
Mr. Mulvaney personally. They go to the heart of our representative government and its promise
to secure individual liberty by dividing the awesome power of government amongst itself.
Mr. Mulvaney, like Mr. Kupperman, finds himself caught in that division, trapped between the
commands of two of its co-equal branches—with one of those branches threatening him with
contempt. He turns to this Court for aid and respectfully requests that his motion be granted.
His proposed Complaint, see Exhibit 3, and a proposed order, are attached.

Respectfully submitted,
DATED: November 8, 2019

/s/ William Pittard
William Pittard (DC Bar No. 482949)
Christopher C. Muha (DC Bar No. 987116)
KAISERDILLON PLLC
1099 14th Street NW – 8th Floor West
Washington, DC 20005
T: (202) 640-2850

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 Case 1:19-cv-03224-RJL Document 26 Filed 11/08/19 Page 9 of 9

F: (202) 280-1034
wpittard@kaiserdillon.com
cmuha@kaiserdillon.com
Attorneys for John Michael Mulvaney

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 Case Document 26-3 Filed 11/08/19 Page 1 of 24

Exhibit 3

Case Document 26-3 Filed 11/08/19 Page 2 of 24

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 

 

CHARLES M. KUPPERMAN
9075 Sorreno Ct.
Naples, FL 34119

Plaintiff,

JOHN MICHAEL MULVANEY

 

Intervenor-Plaintiff,

V.

UNITED STATES HOUSE OF
REPRESENTATIVES

The Capitol

Washington, DC 20515

Defendant,

THE HONORABLE DONALD J. TRUMP,
in his of?cial capacity as President of the
United States

1600 Avenue, NW
Washington, DC 20500

Defendant,

THE HONORABLE NANCY PELOSI,
in her of?cial capacity as Speaker of the
United States House of Representatives

1236 Longworth House Of?ce Building
Washington, DC 20515

Defendant,



Civil Action No. 

Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 3 of 24

THE HOUSE PERMANENT SELECT
COMMITTEE ON INTELLIGENCE
HVC304 Capitol
Washington, DC 20515

)
)
)
)
)
Defendant,
)
)
THE HONORABLE ADAM B. SCHIFF,
)
in his official capacity as Chairman of the
)
House Permanent Select Committee
)
on Intelligence
)
HVC304 Capitol
)
Washington, DC 20515
)
)
Defendant,
)
)
THE HOUSE COMMITTEE ON FOREIGN
)
AFFAIRS
)
2170 Rayburn House Office Building
)
Washington, DC 20515
)
)
Defendant,
)
)
THE HONORABLE ELIOT L. ENGEL,
)
in his official capacity as Chairman of the
)
House Committee on Foreign Affairs
)
2170 Rayburn House Office Building
)
Washington, DC 20515
)
)
Defendant,
)
)
THE HOUSE COMMITTEE ON OVERSIGHT
)
AND REFORM
)
2157 Rayburn House Office Building
)
Washington, DC 20515
)
)
Defendant,
)
)
THE HONORABLE CAROLYN B. MALONEY, )
in her official capacity as Acting Chair of the
)
House Committee on Oversight and Reform
)
2157 Rayburn House Office Building
)
Washington, DC 20515
)
)
Defendant.
)
__________________________________________)
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 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 4 of 24

COMPLAINT
Pursuant to 28 U.S.C. §§ 2201 and 2202, Intervenor-Plaintiff John Michael Mulvaney,
the Director of the Office of Management and Budget and the Acting White House Chief of
Staff, files this complaint in this existing interpleader action against Defendants: the United
States House of Representatives; Representative Nancy Pelosi, Speaker of the U.S. House of
Representatives; the House Permanent Select Committee on Intelligence; Representative Adam
B. Schiff, Chairman of the House Permanent Select Committee on Intelligence; the House
Committee on Foreign Affairs; Representative Eliot L. Engel, Chairman of the House Committee
on Foreign Affairs; the House Committee on Oversight and Reform; and Representative Carolyn
B. Maloney, Acting Chair of the House Committee on Oversight and Reform (collectively, the
“House Defendants”). Intervenor-Plaintiff is faced with irreconcilable commands by the
Legislative and Executive Branches of the Government and, accordingly, seeks a declaratory
judgment from this Court as to whether he is lawfully obliged to comply with a subpoena issued
by the House Defendants demanding his testimony “as part of the House of Representatives’
impeachment inquiry,” or he is lawfully obliged to abide by an order from the President not to
appear for that deposition, on the basis of an assertion of immunity from congressional process.
Intervenor-Plaintiff hereby alleges as follows:
INTRODUCTION AND SUMMARY OF THE ACTION
1.

Since February 16, 2017, Intervenor-Plaintiff has served as the Director of the

Office of Management and Budget. Since January 2, 2019, Intervenor-Plaintiff also has served as
the Acting White House Chief of Staff. In both capacities, Intervenor-Plaintiff serves as a
member of President Trump’s Cabinet.

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 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 5 of 24

2.

On Thursday, November 7, 2019, at 6:36 p.m., as part of the House’s

impeachment inquiry, the House Defendants emailed a subpoena to Intervenor-Plaintiff
commanding him to appear and testify about his official duties in connection with the United
States’ relations with Ukraine. That subpoena commanded appearance for a deposition to
commence fewer than 15 hours later, at 9:00 a.m. on Friday, November 8, 2019. Before 9:00
a.m. that morning, the President, acting through the White House Counsel, asserted that
Intervenor-Plaintiff, as a close personal advisor to the President, is immune from congressional
process, and he expressly instructed Intervenor-Plaintiff not to appear and testify in response to
the House’s subpoena.
3.

The President’s direction was backed by a legal opinion issued by the Department

of Justice’s Office of Legal Counsel (“OLC”). The OLC opinion explained that, under both
Democratic and Republican administrations, OLC consistently has concluded that close personal
advisors of presidents are immune from compelled congressional testimony.
4.

The email attaching the House’s subpoena to Intervenor-Plaintiff, however,

threatened to initiate “a contempt proceeding” against him, or to draw an unspecified “adverse
inference against” him, if he refused to comply with the subpoena—even if his refusal came “at
the direction or behest of the President,” the head of Intervenor-Plaintiff’s branch of
Government. See Ex. A at 1. The House Defendants, in other words, have threatened—and
currently do threaten—to take legal action against a member of a co-equal branch of government
for acceding to an order of the head of his branch where that order is one consistently deemed
lawful by Democratic and Republican administrations alike.
5.

Intervenor-Plaintiff therefore seeks a declaratory judgment pronouncing that the

House Defendants (1) may not take adverse action against him, as a member of the Executive

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Branch, for noncompliance with the issued congressional subpoena where that noncompliance is
at the direction of the President (and that direction is consistent with the Executive Branch’s
longstanding and indisputably bipartisan position on immunity from congressional process), and
furthermore (2) may not take action against him for any non-compliance that predates any such
judicial ruling.
JURISDICTION AND VENUE
6.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331. This case arises under

Articles I and II of the Constitution of the United States, and implicates Article I, Section 2,
Clause 5, which provides that the House of Representatives shall have “the sole Power of
Impeachment,” and Article II, Section 1, Clause 1, which vests the “executive Power … in a
President of the United States of America.”
7.

This Court has authority to issue a declaratory judgment and order other relief that

is just and proper pursuant to 28 U.S.C. §§ 2201 and 2202.
8.

Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(e)(1) & (b)(2). Each

of the Defendants performs his, her, or its official duties in this judicial district, and a substantial
part of the events or omissions giving rise to this action occurred in this judicial district.
PARTIES
9.

Intervenor-Plaintiff John Michael Mulvaney is a citizen of South Carolina.

10.

Defendant United States House of Representatives is established by Article I,

Section 1 of the Constitution of the United States, and it is vested with “the sole Power of
Impeachment.” U.S. CONST., art. I, § 2, cl. 5.
11.

Defendant Nancy Pelosi is the Speaker of the House of Representatives. She is

sued in her official capacity.

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12.

Defendant House Permanent Select Committee on Intelligence is a committee of

Defendant United States House of Representatives.
13.

Defendant Adam B. Schiff is the Chairman of the House Permanent Select

Committee on Intelligence. He is sued in his official capacity.
14.

Defendant House Committee on Foreign Affairs is a committee of Defendant

United States House of Representatives.
15.

Defendant Eliot L. Engel is the Chairman of the House Committee on Foreign

Affairs. He is sued in his official capacity.
16.

Defendant House Committee on Oversight and Reform is a committee of

Defendant United States House of Representatives.
17.

Defendant Carolyn B. Maloney is the Acting Chair of the House Committee on

Oversight and Reform. She is sued in her official capacity.
18.

Defendant Donald J. Trump is the President of the United States. He is sued in his

official capacity.
FACTUAL ALLEGATIONS
19.

Intervenor-Plaintiff has served as the Director of the Office of Management and

Budget since February 16, 2017. Since January 2, 2019, Intervenor-Plaintiff also has served as
the Acting White House Chief of Staff. In both capacities, Intervenor-Plaintiff serves as a
member of President Trump’s Cabinet and as a close personal advisor to President Trump.
Among Intervenor-Plaintiff’s many duties as Acting White House Chief of Staff and Director of
the Office of Management and Budget is advising the President with respect to national security
policy, as well as coordinating the implementation of national security policy among the relevant

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Executive Branch agencies, including but not limited to the Department of State, the Department
of Defense, and the Office of Management and Budget.
20.

On November 7, 2019, Defendant Schiff, through Committee counsel, sent to

Intervenor-Plaintiff an electronic message, “as part of to the House of Representatives’
impeachment inquiry, … transmitting a subpoena that compels [Intervenor-Plaintiff] to appear”
for a deposition at 9:00 a.m. on November 8, 2019. Although the subpoena apparently was
signed by Defendant Schiff on Monday, November 4, 2019, Committee counsel did not send the
subpoena to Intervenor-Plaintiff—or alert him to its existence—until 6:36 p.m. on Thursday,
November 7, 2019. Exhibit A at 1.
21.

Committee counsel’s electronic message explained that the “subpoena is being

issued by the Permanent Select Committee on Intelligence under the Rules of the House of
Representatives in exercise of its oversight and legislative jurisdiction and after consultation with
the Committee on Foreign Affairs and the Committee on Oversight and Reform.” Id.
22.

The electronic message described the subject and scope of the investigation as

follows: “The deposition transcript shall be collected as part of the House’s impeachment inquiry
and shared among the Committees, as well as with the Committee on the Judiciary as
appropriate.” Id.
23.

Because the subpoena seeks testimony concerning Intervenor-Plaintiff’s service

as a senior confidential advisor to the President, Intervenor-Plaintiff provided the White House
Counsel with a copy of the subpoena, and requested that the White House Counsel notify him of
the President’s position on the subpoena.
24.

On November 8, 2019, the White House Counsel transmitted a letter to counsel

for Intervenor-Plaintiff, asserting the “constitutional immunity of current and former senior

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 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 9 of 24

advisers to the President” and instructing Intervenor-Plaintiff not to appear and testify in
response to the subpoena. Exhibit B at 2. The White House Counsel stated that the Office of
Legal Counsel of the Department of Justice had “advised [him] that [Intervenor-Plaintiff] is
absolutely immune from compelled congressional testimony with respect to matters related to his
service as a senior adviser to the President.” Id. at 1. The White House Counsel enclosed the
opinion of the Office of Legal Counsel, and it is included as part of Exhibit B hereto.
25.

The White House Counsel further informed Intervenor-Plaintiff’s counsel that, “in

order to protect the prerogatives of the Office of the President today and in the future, and in
response to your request, the President directs Mr. Mulvaney not to appear at the Committee’s
scheduled deposition on Friday, November 8, 2019.” Id. at 2.
26.

Intervenor-Plaintiff is not aware of any Supreme Court decision establishing that

the congressional subpoena controls here, as the House Defendants have insisted.
27.

Indeed, for nearly a half century, OLC consistently has opined that “‘the President

and his immediate advisers are absolutely immune from testimonial compulsion by a
Congressional committee’ on matters related to their official duties.” Memorandum for the
Counsel to the President from Steven A. Engel, Assistant Attorney General, Office of Legal
Counsel, Re: Testimonial Immunity Before Congress of Former Counsel to the President, 43 Op.
O.L.C., slip op. at *1 (May 20, 2019) (“Engel Opinion”) (quoting Memorandum for All Heads of
Offices, Divisions, Bureaus and Boards of the Department of Justice, from John M. Harmon,
Acting Assistant Attorney General, Office of Legal Counsel, Re: Executive Privilege at 5 (May
23, 1977)). OLC has reaffirmed this position more than a dozen times over the course of the last
nine administrations of both political parties. See Engel Opinion at 3 n.1 (citing OLC opinions
from the administrations of every President since President Nixon).

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28.

The Executive Branch apparently has refused, with few exceptions, to permit

close White House advisors to the President to testify before Congress since the 1940s, when the
Executive Office of the President was created. See id. at 7. OLC articulated the legal basis for
testimonial immunity of close Presidential advisors in 1971 in a Memorandum authored by thenAssistant Attorney General William H. Rehnquist. See Memorandum for John D. Ehrlichman,
Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney
General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel
Appearance or Testimony of “White House Staff” (Feb. 5, 1971). Assistant Attorney General
Rehnquist defined the scope of the immunity as follows:
The President and his immediate advisers — that is, those who
customarily meet with the President on a regular or frequent basis
— should be deemed absolutely immune from testimonial
compulsion by a congressional committee. They not only may not
be examined with respect to their official duties, but they may not
even be compelled to appear before a congressional committee.
Id. at 7.
29.

Both in his capacity as the Acting White House Chief of Staff and as the Director

of the Office of Management and Budget, Intervenor-Plaintiff met with and advised President
Trump directly on a frequent and regular basis and implemented President Trump’s plans.
30.

The Rehnquist Memorandum repeatedly, and apparently without exception, has

been reaffirmed in opinions by heads of OLC from both political parties. See, e.g., Letter to
Phillip E. Areeda, Counsel to the President, from Antonin Scalia, Assistant Attorney General,
Office of Legal Counsel (Sept. 25, 1974) (enclosing a Memorandum); Letter Opinion for the
Counsel for the President from Christopher H. Schroeder, Acting Assistant Attorney General,
Office of Legal Counsel, Re: Immunity of the Counsel to the President from Compelled
Congressional Testimony, 20 Op. O.L.C. 308 (1996); Memorandum Opinion for the Counsel to
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the President from Karl R. Thompson, Acting Assistant Attorney General, Office of Legal
Counsel, Re: Immunity of the Assistant to the President and Director of the Office of Political
Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C., slip op *1 (July 15, 2014)
(“Thompson Memorandum”).
31.

OLC’s rationale for this immunity begins with the premise that “[t]he President is

a separate branch of government. He may not compel congressmen to appear before him. As a
matter of separation of powers, Congress may not compel him to appear before it.” Engel
Opinion at 4 (quoting Memorandum for Edward C. Schmults, Deputy Attorney General, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel at 2 (July 29, 1982)).
OLC has reasoned that the testimonial immunity enjoyed by the President himself necessarily
must extend to his close confidential advisors whose only function is to advise and assist the
President in carrying out his duties: “For the President’s absolute immunity to be fully
meaningful, and for these separation of powers principles to be adequately protected, the
President’s immediate advisers likewise must have absolute immunity from congressional
compulsion to testify about matters that occur during the course of discharging their official
duties.” Thompson Memorandum, 38 Op. O.L.C., slip op. at *2. Absent testimonial immunity
against Congressional process, according to OLC, the President’s “strong interests in
confidentiality, as well as the President’s ability to obtain sound and candid advice” would be
impaired. Engel Opinion, 43 Op. O.L.C., slip op. at *5.
32.

On the other hand, what apparently is the only judicial decision to address the

question has concluded that the President’s close advisors do not enjoy absolute immunity from
Congressional process. In Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C.
2008), the House Committee on the Judiciary brought suit against Counsel to the President

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 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 12 of 24

Harriet Miers and White House Chief of Staff Joshua Bolten to enforce its subpoenas for
testimony and documents relating to the termination of nine United States Attorneys. District
Judge Bates explained that Supreme Court authority on this question “powerfully suggests that
such advisors do not enjoy absolute immunity.” Id. at 99. The district court pointed out, see id. at
100–03, that in Harlow v. Fitzgerald, the Supreme Court held that senior presidential advisors do
not enjoy absolute immunity from civil suits based on official acts, even where the Court
previously had held that the President himself is absolutely immune from civil suits based on
official acts. See 457 U.S. 800 (1982); see also Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).
The court emphasized the narrow scope of its decision, holding “only that Ms. Miers (and other
senior presidential advisors) do not have absolute immunity from compelled congressional
process in the context of this particular subpoena dispute.” Miers, 558 F. Supp. 2d at 105–06.
33.

The district court in Miers further concluded that the Counsel to the President was

not entitled to absolute or qualified immunity at least in part because the inquiry did not “involve
the sensitive topics of national security or foreign affairs.” Id. at 105. National security and
foreign affairs are at the heart of the information that the House Defendants seek from
Intervenor-Plaintiff in connection with the House’s impeachment inquiry.
34.

The district court’s decision in Miers was stayed pending appeal. See Comm. on

the Judiciary of the U.S. House of Representatives v. Miers, 542 F.3d 909, 910–11 (D.C. Cir.
2008) (per curiam). The case settled, and the appeal was dismissed before any further action was
taken by the court of appeals. Comm. on the Judiciary of the U.S. House of Representatives v.
Miers, No. 08-5357, 2009 WL 3568649, at *1 (D.C. Cir. Oct. 14, 2009). Subsequent OLC
decisions from both the Obama Administration and the Trump Administration have “respectfully
disagree[d] with the district court’s conclusion in Miers and adhere[d] to this Office’s long-

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 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 13 of 24

established position that the President’s immediate advisers are absolutely immune from
compelled congressional testimony.” Engel Opinion, 43 Op. O.L.C., slip op. at *14 (citing
Thompson Memorandum, 38 Op. O.L.C., slip op. at *5–9).
35.

In short, there apparently is no controlling judicial authority that definitively

undermines the Executive Branch’s consistent bipartisan conclusion that close personal advisors
of the President are bound to abide by the President’s assertions of immunity, even in the face of
congressional subpoenas for testimony. Especially on matters pertaining to national security and
foreign affairs, close personal advisors of the President, like Intervenor-Plaintiff, generally are
obligated to follow Presidential orders instructing them to accede to longstanding bipartisan legal
positions of the Executive Branch. There exists, to Intervenor-Plaintiff’s knowledge, no
controlling authority otherwise, notwithstanding the House Defendants’ threats against
Intervenor-Plaintiff.
CLAIM FOR RELIEF
COUNT I
Declaratory Judgment
36.

Intervenor-Plaintiff incorporates by reference and realleges the preceding

paragraphs, as if set forth fully herein.
37.

Intervenor-Plaintiff is bound by his oath of office to abide by the lawful

constitutional commands of both the President and the House of Representatives.
38.

More particularly, Intervenor-Plaintiff has a duty to abide by a lawful

constitutional assertion of immunity by the President and a lawful instruction by the President
that he decline to testify before Congress concerning his official duties as a close advisor to the
President. Intervenor-Plaintiff likewise has a general duty to comply with a lawful, constitutional
subpoena issued to him by a duly-authorized committee of the U.S. House of Representatives.
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 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 14 of 24

39.

The House Defendants assert that Intervenor-Plaintiff is lawfully obligated to

comply with the subpoena they issued to him, and it is a federal criminal offense to willfully fail
“to give testimony or to produce papers” in response to a lawful subpoena issued by “any
committee of either House of Congress, … punishable by a fine … and imprisonment in a
common jail for not less than one month nor more than twelve months.” 2 U.S.C. § 192.
40.

President Trump, the head of Intervenor-Plaintiff’s branch of the government,

asserts that Intervenor-Plaintiff is lawfully obligated to abide by the President’s assertion of
immunity from Congressional process and his instruction that Intervenor-Plaintiff not appear and
testify in response to the subpoena.
41.

Intervenor-Plaintiff has, at a minimum, reasonable cause to believe that the

President’s assertion of immunity on behalf of Intervenor-Plaintiff, and order that IntervenorPlaintiff not attend the relevant deposition, is and are valid and binding on Intervenor-Plaintiff.
42.

The House Defendants threaten to take action against Intervenor-Plaintiff for

acceding to a longstanding, bipartisan legal position, as adopted here by the President.
43.

Intervenor-Plaintiff is neither authorized nor able to resolve a Constitutional

dispute between the Legislative and Executive Branches of our government; instead, “[i]t is
emphatically the province and the duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
44.

Accordingly, Intervenor-Plaintiff is “an interested party seeking” a declaration of

his “rights and other legal relations” with the House Defendants. See 28 U.S.C. § 2201(a).
Intervenor-Plaintiff seeks only to be insulated from adverse action by the House Defendants
based on his having followed the President’s order at a time before the Judicial Branch had
definitely resolved the questions at issue.

- 13 -

 Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 15 of 24

PRAYER FOR RELIEF
WHEREFORE, Intervenor-Plaintiff respectfully prays that this Court:
A.

Pursuant to 28 U.S.C. §§ 2201 and 2202, enter declaratory relief as follows:
1.

Declare whether the House Defendants may compel Intervenor-Plaintiff to
testify where the President has instructed him, as a close personal advisor,
not to do so on grounds of immunity.

2.

Declare that the House Defendants may not take adverse action against
Intervenor-Plaintiff based on his decision to follow the President’s
directive to assert that immunity at a time when the Judicial Branch had
not definitively resolved the question.

B.

Expedite its consideration and resolution of this case in light of the pending

impeachment proceedings.
C.

Grant such other and further relief as may be just and proper under the

circumstances.
DATED: November 8, 2019

Respectfully submitted,
/s/ William Pittard
William Pittard (DC Bar No. 482949)
Christopher C. Muha (DC Bar No. 987116)
KAISERDILLON PLLC
1099 14th Street NW – 8th Floor West
Washington, DC 20005
T: (202) 640-2850
F: (202) 280-1034
wpittard@kaiserdillon.com
cmuha@kaiserdillon.com
Attorneys for John Michael Mulvaney

- 14 -

 Case Document 26-3 Filed 11/08/19 Page 16 of 24

Exhibit A

Case 1:19-cv-03224-RJL Document 26-3 Filed 11/08/19 Page 17 of 24

From: Noble, Daniel 
  
Sent: Thursday, November 7, 2019 6:36 PM 
To: Mulvaney, Mick M. EOP/WHO 
 
Cc: Bergreen, Timothy <
; Bitar, Maher 
; Goldman, 
; Wirkkala, Rheanne 
Daniel 
 Mitchell, Nicolas 
 Rapallo, Dave 
; Grooms, Susanne Sachsman 
; Kenny, Peter 
; Carey, Laura 
 Bair, James 
; Purpura, Michael M. EOP/WHO 
 
Subject: Subpoena ‐ House Impeachment Inquiry 
  
Mr. Mulvaney, 
  
Please see the attached subpoena commanding you to appear for a deposition as part of the House of Representatives’ 
impeachment inquiry at the previously noticed date, time, and location:  November 8, at 9:00 a.m. in HVC‐304, The 
Capitol.   
  
This subpoena is being issued by the Permanent Select Committee on Intelligence under the Rules of the House of 
Representatives in exercise of its oversight and legislative jurisdiction and after consultation with the Committee on 
Foreign Affairs and the Committee on Oversight and Reform.  The deposition transcript shall be collected as part of the 
House’s impeachment inquiry and shared among the Committees, as well as with the Committee on the Judiciary as 
appropriate.  Your failure or refusal to comply with the subpoena, including at the direction or behest of the President, 
shall constitute further evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse 
inference against you and the President.  Moreover, your failure to appear shall constitute evidence that may be used 
against you in a contempt proceeding. 
  
Attached for your reference are the House deposition regulations and HPSCI’s Rules of Procedure. 
  
Please confirm receipt. 
  
Sincerely, 
  
  
  
Daniel S. Noble 
Senior Investigative Counsel (Majority) 
House Permanent Select Committee on Intelligence  
The Capitol (HVC‐304) 
Desk:  
 
Cell:  
 
Secure:  
 
  

1

 Case Document 26-3 Filed 11/08/19 Page 18 of 24

SUBPOENA

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE
CONGRESS OF THE UNITED STATES OF AMERICA

To file 3mm mama Muwweq

You are hereby commanded to be and appear before the
Permanent Select Committee on Intelligence

 

of the House of Representatives of the United States at the place, date, and time speci?ed below.

to produce the things identi?ed on the attached schedule touching matters of inquiry committed to said
committee or subcommittee; and you are not to depart without leave of said committee or subcommittee. .

 

Place of production:

 

 

 

 

Date: Time:

 

to testify at a deposition touching matters of inquiry committed to said committee or subcommittee;
and yOu are not to depart without leave of said committee or subcommittee.

 

Place oftestimony: REV-MANN SELECT op .S. Ckf?mgw

Date: 8L20M Time: 0? :ooAM

 

 

 

 

to testify at a hearing touching matters of inquiry committed to said committee or subcommittee; and
you are not to depart without leave of said committee or subcommittee.

 

Place of testimony:

 

Date Time:

 

 

 

 

T0 The US. Marshals Service, or any authorized Member or congressional staff

to serve and make return.

 

Witness my hand and the seal of the House of Representatives of the United States, at
- 

the city of Washington, DC. this day f'hairman or Auth rized Member

Clerk 

 

 
 
 

 

Case Document 26-3 Filed 11/08/19 Page 19 of 24

PROOF OF SERVICE

 

 

 

Subpoena for
?l?l'lE HDNOMBLE gem mm 
Address

 

 

before the Permanent Select Committee on Intelligence

 

 

US. House of Representatives
1 16th Congress

 

 

 

 

Served by (print name) Maher Bitar
Title General Counsel

Manner of service Electronic Mail

 

Date 

Signature of Server 


I

Address Permanent Select ?mmittee on Intelligence, HVC-304, US. Capitol

 

 

 

 

Case Document 26-3 Filed 11/08/19 Page 20 of 24

Exhibit 

Case Document 26-3 Filled 11/08/19 Page 21 of 24

HOUSE
WASHINGTON

November 8, 2019

Mr. William Pittard
KaiserDillon PLLC

1099 14th Street, NW.
Washington, DC. 20005

Dear Mr. Pittard:

I write in response to your request regarding the subpoena issued to your client, Mick
Mulvaney, by the Permanent Select Committee on Intelligence of the United States House of
Representatives (the ?Committee?) on November 7, 2019. The subpoena directs Mr. Mulvaney to
appear to testify at a deposition at 9:00 am. on November 8, 2019.

The Department of Justice (the ?Department?) has advised me that Mr. Mulvaney is
absolutely immune from compelled congressional testimony with respect to matters related to his
service as a senior adviser to the President. See Letter to Pat A. Cipollone, Counsel to the
President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel (Nov. 7,
2019). The Department has long taken the position?across administrations of both political
parties?that ?the President and his immediate advisers are absolutely immune from testimonial
compulsion by a Congressional committee.? Immunity of the Former Counsel to the President
??0m Compelled Congressional Testimony, 31 Op. O.L.C. 191,191 (2007) (quoting Assertion of
Executive Privilege with Respect to Clemency Decision, 23 'Op. O.L.C. 1, 4 (1999) (opinion of
Attorney General Janet Reno)); Immunity of the Counsel to the President from Compelled
Congressional Testimony, '20 Op. O.L.C. 308, 308 (1996). That immunity arises from the
President?s position as head of the Executive Branch and from Mr. Mulvaney? position as a senior
adviser to the PreSident, speci?cally Assistant to the President and Acting White House Chief of
Staff. 

"As the Department?s letter states, Mr. Mulvaney quali?es as a senior presidential adviser
entitled to immunity. The Department?s opinions on this topic have consistently recognized that
this immunity extends to immediate advisers ??Who customarily meet with the President on a
regular or frequent basis,? and upon whom the President relies directly for candid and sound
advice.? Immunity of the Assistant to the President and Director of the Office of Political Strategy
and Outreach from Congressional Subpoena, 38 Op. O.L.C. at *2 (June 15, 2014) (quoting
Memorandum from William H. Rehnquist, Assistant Attorney General, Of?ce of Legal Counsel,
Re: Power of Congressional Committee to Compel Appearance or Testimony of ?White House
Staff at 7 (Feb. 5, 1971)). Accordingly, "Mr. Mulvaney cannot be compelled to appear before the
Committee because ?[s]ubjecting a senior presidential advisor to the congressional subpoena
power would be akin to requiring the President himself to appear before Congress on matters

Case Document 26-3 Filed 11/08/19 Page 22 of '24

Mr. William Pittard, Esq.
Page 2

relating to the performance of his constitutionally assigned executive functions.? Assertion of
Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. at 5. The constitutional
immunity of current and former senior advisers to the President exists to protect the institution of
the Presidency and, as stated by former Attorney General Reno, ?may not be overborne by
competing congressional interests.? 1d.

Accordingly, in order to protect the prerogatives of the Of?ce of President today and in the
future, and in response to your request, the President directs Mr. Mulvaney not to appear at the
Committee?s scheduled deposition on November 8, 2019. This long-standing principle is ?rmly
rooted in the Constitution?s separation of powers and protects the core functions of the Presidency,
and this of?ce is adhering to this well?established precedent in order to allow future Presidents to
effectively execute the responsibilities of the Of?ce of President. I also attach the letter opinion
provided by the Department regarding Mr. Mulvaney?s immunity. I

Thank you for your attention to this matter. Please do not hesitate to contact me or Mike
Purpura if you have any Questions. 

 
   

Counsel to the President" .

Case Document 26-3 Filed 11/08/19 Page 23 of 24

U.S. Department of Justice

Of?ce of Legal Counsel

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530
November 7, 2019

Pat A. Cipollone
Counsel to the President
The White House
Washington, DC 20500

Dear Mr. Cipollone:

On November 7, 2019, the Permanent Select Committee on Intelligence of the House of
Representatives issued a subpoena seeking to compel Mick Mulvaney, Assistant to the President
and Acting White House Chief of Staff, to testify at a deposition on Friday, November 8. The
Committee subpoenaed Mr. Mulvaney as part of its impeachment inquiry into the conduct of the
President. See H.R. Res. 660, 116th Cong. (2019). You have asked whether the Committee may
compel him to testify. We conclude that Mr. Mulvaney is absolutely immune from compelled
congressional testimony in his capacity as a senior adviser to the President.

The Executive Branch has taken the position for decades that ?Congress may not
constitutionally compel the President?s senior advisers to testify about their of?cial duties.?
Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C.
at *1 (May 20, 2019). The immunity applies to those ?immediate advisers . . . who
customarily meet with the President on a regular or frequent basis.? Memorandum for John D.
Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist,
Assistant Attorney General, Of?ce of Legal Counsel, Re: Power of Congressional Committee to
Compel Appearance or Testimony of ?White House Staff? at 7 (Feb. 5, 1971) (?Rehnquist
Memorandum?). We recently advised you that this immunity applies in an impeachment inquiry
just as in a legislative oversight inquiry. See Letter for Pat A. Cipollone, Counsel to the
President, from Steven A. Engel, Assistant Attorney General, Of?ce of Legal Counsel at 2 (Nov.
3, 2019). ?Even when impeachment proceedings are underway,? we explained, ?the President
must remain able to continue to discharge the duties of his of?ce. The testimonial immunity of
the President?s senior advisers remains an important limitation to protect the independence and
autonomy of the President himself.? Id.

This immunity applies in connection with the Committee?s subpoena for Mr. Mulvaney?s
testimony. The Committee intends to question Mr. Mulvaney about matters related to his of?cial
duties at the White House?speci?cally the President?s conduct of foreign relations with
Ukraine. See Letter for Mick Mulvaney from Adam B. Schiff, Chairman, House Permanent
Select Committee on Intelligence, et al. (Nov. 5, 2019). And Mr. Mulvaney, as Acting Chief of
Staff, is a ?top presidential In re Sealed Case, 121 F.3d 729, 757 (DC. Cir. 1997),
who works closely with the President in supervising the staff within the Executive Of?ce of the
President and managing the advice the President receives. See David B. Cohen Charles E.
Waleott, White House Transition Project, Report 2017-21, The O?ice of Chief of Sta? 15?26

   
  

Case Document 26-3 Filed 11/08/19 Page 24 of 24

(2017). Mr. Mulvaney meets with and advises the President on a daily basis about the most
9 Quali?es as an ?immediate