Acting White House chief of staff Mick Mulvaney no longer plans to sue in federal court over his House subpoena in the impeachment probe.
Instead, his attorneys told a federal judge Tuesday morning he’s planning to obey the White House and Justice Department’s direction for him not to testify.
Mulvaney’s move on Tuesday ends a maneuver in the courts that Mulvaney began Friday to reposition himself legally after he didn’t show up for his subpoenaed testimony in the House.
On Friday, he tried to jump onto another former national security official’s lawsuit, asking the court for guidance, which surprised and drew opposition from those around former national security adviser John Bolton, another major witness the House had sought to hear from.
The decision also highlights how Mulvaney’s standing among Trump administration officials had been floundering, and how he could become one of the most significant targets of Democrats in the coming weeks after two witnesses told Congress they believe he was a key broker in Trump’s political request from Ukraine.
The lawsuit route is one that could have promised a pause for Mulvaney in political pressure as the House enters into late stages of its impeachment inquiry. It’s possible the lawsuit Mulvaney had wanted to join, which is regarding witness Charles Kupperman, isn’t resolved until mid-December at the earliest.
Mulvaney had attempted to ask the court for help as a way hold off being held in contempt, according to his legal arguments over the past four days. He had claimed that he could not choose between complying with the House subpoena he received and the White House’s instruction that he is immune from testifying.
If he had sued, Mulvaney would have sued the House and asked the judge to decide if the subpoena was valid. “Especially on matters pertaining to national security and foreign affairs, close personal advisors of the President, like [Mulvaney], generally are obligated to follow Presidential orders instructing them to accede to longstanding bipartisan legal positions of the Executive Branch,” he wrote in a draft version of the lawsuit he had shown to the judge on Friday. Mulvaney “is neither authorized nor able to resolve a Constitutional dispute between the Legislative and Executive Branches of our government.”
But Kupperman’s legal team – which also represents Bolton – attacked the President’s chief of staff Monday, saying he was not the same as Kupperman, had already publicly admitted to a quid pro quo and shouldn’t get the same national security protections they seek over their White House work.
The White House, citing legal reasoning from the Justice Department, has insisted witnesses like Mulvaney, Kupperman and others have blanket protection from testifying in the House, citing “absolute immunity” because of their work under the President. But that idea has not been fully tested in courts, and federal judges continue to weigh whether they can referee fights between the House and the executive branch.
“After further consideration, Mr. Mulvaney does not intend to pursue litigation regarding the deposition subpoena issued to him by the U.S. House of Representatives. Rather, he will rely on the direction of the President, as supported by an opinion of the Office of Legal Counsel of the U.S. Department of Justice, in not appearing for the relevant deposition,” his attorneys wrote in a filing Tuesday morning.
“In light of the above representation, Mr. Mulvaney respectfully suggests that there no longer is a need for the status conference set by this Court for this afternoon, and thus that the Court may wish to vacate that conference. Mr. Mulvaney appreciates the time of the Court in considering his motion to intervene, and the opportunity to be heard on that motion.”