TUSCALOOSA, Ala. - Even in a White House of never-befores, this may be one of the more head-spinning: The president's chief of staff is trying to join a lawsuit against the president.
Mick Mulvaney works only about 50 steps from the Oval Office as he runs the White House staff, but rather than simply obey President Donald Trump's order to not cooperate with House impeachment investigators, he sent his lawyers to court late Friday night asking a judge whether he should or not.
To obtain such a ruling, the lawyers asked to join a lawsuit already filed by a former White House official - a lawsuit that names "the Honorable Donald J. Trump" as a defendant along with congressional leaders. The lawyers tried to finesse that by saying in the body of their motion that the defendants they really wanted to sue were the congressional leaders, but their own motion still listed Trump at the top as a defendant because that is the suit they sought to join.
In effect, Mulvaney hopes the court will tell him whether to listen to his own boss, who wants him to remain silent, or to comply with a subpoena from the House, which wants his testimony. That put Mulvaney at odds with some other current White House and administration officials who had simply defied the House, citing the president's order not to cooperate with what he called an illegitimate "witch hunt."
Mulvaney did not explain why he chose a different course, but his decision focused renewed attention on his relationship with Trump; it has been increasingly strained as House Democrats prepare to open public hearings into whether the president should be impeached for high crimes and misdemeanors.
"It's symptomatic of a White House that is more dysfunctional than ever - except now it's not just chaos, the long knives are coming out," said Chris Whipple, the author of "The Gatekeepers," a history of White House chiefs of staff. "Everybody, including the White House chief, seems to be lawyering up."
Whipple could not think of any precedent for a chief of staff going to court rather than obey a president's order. "Given that Mulvaney has been willing to do almost anything for Trump, it's remarkable that he's asking for a second opinion," he said.
The House is investigating Trump for using the power of his office to pressure President Volodymyr Zelenskiy of Ukraine into providing incriminating information about former Vice President Joe Biden and other Democrats at the same time he was holding up $391 million in congressionally approved security assistance. Mulvaney has become a key figure in the case, identified by other witnesses as a facilitator of the pressure campaign and the official who ordered the security aid frozen at Trump's direction.
Mulvaney told reporters last month that the aid was suspended in part to force Ukraine to investigate a conspiracy theory about supposed Ukrainian help for Democrats in the 2016 presidential election, a theory that the president's onetime homeland security adviser, Thomas Bossert, had repeatedly told him was "completely debunked." Hours after Mulvaney's comment to reporters confirming a direct link between the aid and the president's personal political interests, the chief of staff tried to take it back, issuing a statement saying that was not what he meant.
House investigators issued a subpoena to Mulvaney late Thursday, but he failed to show up for a House deposition scheduled for the next morning. Hours later, his lawyers went to court.
Mulvaney initially resisted getting outside legal help after some of his allies told him he did not need it. But as House Republicans have indicated that they may focus on Mulvaney's role in the pressure campaign on Ukraine, possibly blaming him rather than the president, it has become clear that the chief of staff's own interests may be in conflict with the White House on this issue.
That left Mulvaney in the awkward position of not wanting to openly defy the White House counsel but also not wanting to imperil himself with a possible contempt citation for ignoring a subpoena. So far, a dozen current administration officials have testified despite the White House edict, while about 10 have refused to talk or provide documents.
The White House declined to comment on the record Saturday, but an administration official who insisted on anonymity said the legal action Mulvaney's lawyers filed was simply a way to determine whether to comply with the House. Mulvaney, the official said, has as much right as any other American to seek relief in the courts.
A House Democratic aide, likewise declining to be identified, said the committees leading the inquiry would not be deterred and argued that because Mulvaney had discussed the matter in the news media, he had little justification to claim confidentiality when it came to the House proceedings.
Trump has grown increasingly sour on Mulvaney in recent months, according to White House insiders. The president has technically not even made Mulvaney his official chief of staff, leaving an "acting" modifier in front of the title for more than 10 months (another never-before).
Mulvaney was not among the aides who traveled with Trump to Tuscaloosa on Saturday to watch the University of Alabama Crimson Tide take on Louisiana State University in a major college football matchup.
A lawyer for Mulvaney alerted the White House Counsel's Office about the pending filing, and the office raised no objections, according to a person close to Mulvaney. Some observers said Mulvaney's goal may be not to oppose Trump but to help him, and himself: In signaling that he would like the courts to decide whom he should side with, he is turning the decision over to a legal process that may continue well beyond the Democrats' impeachment time frame.
As the president spoke with reporters on Saturday before boarding Air Force One, he had nothing to say about Mulvaney's legal action, instead issuing his ritual denunciation of the House Democrats for pursuing impeachment.
Trump did say he would release as early as Tuesday a rough transcript of his first telephone call with Zelenskiy congratulating him on his April election, which came before the much-debated July 25 call in which the president asked the Ukrainian leader to investigate Biden and other Democrats. "There's never been a president who's been so transparent," Trump said. "This is a witch hunt at the highest level, and it's so bad for our country."
The motion filed by Mulvaney late Friday night sought to include him in a lawsuit by Charles Kupperman, the president's former deputy national security adviser, who has also been subpoenaed by the House. Kupperman is represented by Charles J. Cooper, the same lawyer representing his former boss and longtime friend, John Bolton, who stepped down as the president's national security adviser in September.
Bolton has reached an agreement with Simon & Schuster to write a book about his experiences in the White House - The Associated Press reported that it is worth $2 million - but first will have to resolve whether to testify as well. While he is not a plaintiff in Kupperman's suit, Bolton is in effect waiting for its ruling to determine whether he will cooperate as well.
Bolton may be the most sought-after witness because he resisted the pressure campaign on Ukraine and quarreled with Mulvaney over the matter. The idea that Mulvaney would then lump himself in the same legal fight with Bolton struck many involved in the matter as an odd twist.
"There's no honor among thieves," said Rep. Gerald Connolly, D-Va., who serves on two of the committees leading the impeachment investigation. "This case is filled with ironies."
Neither Mulvaney nor his lawyers asked Kupperman, Bolton or their lawyer to join the suit, nor did they give them advance notice. Bolton and Kupperman now have to decide whether to support or oppose including Mulvaney in their action.
"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," the lawyers, William Pittard and Christopher Muha, wrote in their motion. "For that reason, Mr. Mulvaney seeks to intervene here."
The lawyers noted that Mulvaney "finds himself caught in that division, trapped between the commands of two of its coequal branches - with one of those branches threatening him with contempt." But his situation is even more acute than Kupperman's, the lawyers, added, and not just because he still works in the White House.
"Mr. Mulvaney is both a closer and a more senior advisor to the president than was Mr. Kupperman," they wrote, noting that he has a cabinet-level position. "And, as the acting White House chief of staff, Mr. Mulvaney is among the most regular advisors of the president."
Mulvaney's decision to try to join the lawsuit was also puzzling because House Democrats have withdrawn their subpoena for Kupperman and made clear they do not want to fight a court battle to obtain his testimony or Bolton's.
Cooper, representing Bolton, wrote to the House on Friday that his client possessed evidence important to the investigation but would not testify without a clarifying court ruling. Bolton, Cooper wrote, "was personally involved in many of the events, meetings, and conversations about which you have already received testimony, as well as many relevant meetings and conversations that have not yet been discussed in the testimonies thus far."
This article originally appeared in The New York Times.
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