The Committees have released transcripts of all interviews and depositions conducted during the investigation. As these transcripts make clear, all Members of all three Committees—including 47 Republican Members of Congress—had the opportunity to ask questions, and these transcripts are now available to the President and his counsel. These same procedures were supported by Acting White House Chief of Staff Mick Mulvaney when he served as a Member of the Oversight Committee and by Secretary of State Mike Pompeo when he served as a Member of the Benghazi Select Committee. In fact, some of the same Members and staff currently conducting depositions as part of the present impeachment inquiry participated directly in depositions during the Clinton, Bush, and Obama Administrations.95 The Intelligence Committee also held public hearings with 12 of these witnesses.
Agency Attorneys Can Be (And Should Be) Excluded from Depositions: According to Mr. Cipollone, “it is unconstitutional to exclude agency counsel from participating in congressional depositions.”96 Mr. Cipollone cites no case law to support his position—because there is none. Instead, he relies on a single opinion from the Trump Administration’s Office of Legal Counsel and ignores the ample legal authority and historical precedent that clearly support the Committees’ actions. For example, the Constitution expressly delegates to Congress the authority to “determine the Rules of its Proceedings,”97 which includes the power to determine the procedures used for gathering information from witnesses whether via interview, staff deposition, or in a public hearing.98 The basis for the rule excluding agency counsel is straightforward: it prevents agency officials who are directly implicated in the abuses Congress is investigating from trying to prevent their own employees from coming forward to tell the truth to Congress. The rule protects the rights of witnesses by allowing them to be accompanied in depositions by personal counsel. Agency attorneys have been excluded from Congressional depositions of Executive Branch officials for decades, under both Republicans and Democrats, including Chairmen Dan Burton, Henry Waxman, Darrell Issa, Jason Chaffetz, Trey Gowdy, Kevin Brady, and Jeb Hensarling, among others.99
Congress Can Exercise Its Broad Oversight Authority: According to Mr. Cipollone, “you simply cannot expect to rely on oversight authority to gather information for an unauthorized impeachment inquiry that conflicts with all historical precedent and rides roughshod over due process and the separation of powers.”100 But, of course, the present impeachment inquiry does neither. Moreover, the Supreme Court has made clear that Congress’ “power of inquiry” is “as penetrating and farreaching as the potential power to enact and appropriate under the Constitution.”101 The subject matter of the impeachment inquiry implicates the House’s impeachment-specific as well as legislative and oversight authorities and interests. The activity under investigation, for instance, relates to a broad array of issues in which Congress has legislated and may legislate in the future, including government ethics and transparency, election integrity, appropriations, foreign affairs, abuse of power, bribery, extortion, and obstruction of justice. In fact, Members of Congress have already introduced legislation on issues related to the impeachment inquiry.102 The House does not forfeit its Constitutional authority to investigate and legislate when it initiates an impeachment inquiry.103 Congress passed sweeping legislative reforms following the scandal over the Watergate break-in and President Nixon’s resignation.104
“Confidentiality Interests” Do Not Eliminate Congress’ Authority: According to Mr. Cipollone, the Administration would also not comply with the Committees’ demands for documents and testimony because of unspecified Executive Branch “confidentiality interests.”105 There is no basis in the law of executive privilege for declaring a categorical refusal to respond to any House subpoena. In an impeachment inquiry, the House’s need for information and its Constitutional authority are at their greatest, and the Executive’s interest in confidentiality must yield. Only the President can assert executive privilege, yet he has not done so in the House’s impeachment inquiry. Prior to asserting executive privilege, the Executive Branch is obligated to seek to accommodate the legitimate informational needs of Congress, which, as discussed below, it has not done.106 In any event, much of the information sought by the Committees would not be covered by executive privilege under any theory,107 and the privilege—where validly asserted on a particularized basis and not outweighed by the legitimate needs of the impeachment inquiry—would protect any legitimate Executive Branch interest in confidentiality.108
President’s Top Aides Are Not “Absolutely Immune”: According to Mr. Cipollone, the President’s top aides are “absolutely immune” from being compelled to testify before Congress.109 This extreme position has been explicitly and repeatedly rejected by Congress—which has received testimony from senior aides to many previous Presidents—and by federal courts. In 2008, a federal court rejected an assertion by President George W. Bush that White House Counsel Harriet Miers was immune from being compelled to testify, noting that the President had failed to identify even a single judicial opinion to justify his claim.110 On November 25, 2019, another federal judge rejected President Trump’s claim of absolute immunity for former White House Counsel Don McGahn, concluding: “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” and that “Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.”111 Mr. Cipollone’s position, adopted by President Trump, has thus been repudiated by Congress and the courts, and is not salvaged by Executive Branch legal opinions insisting upon a wholly fictional ground for non-compliance. In ordering categorical defiance of House subpoenas, President Trump has confirmed the unlimited breadth of his position and his unprecedented view that no branch of government—even the House—is empowered to investigate whether he may have committed constitutional offenses.
In addition to advancing specious legal arguments, President Trump has made no effort to accommodate the House’s interests in conducting the impeachment inquiry. For example, the Committees first requested documents from the White House on September 9, but the White House disregarded the request.112 The Committees made a second request on September 24, but the White House again ignored the request.113 Finally, on October 4, the Committees transmitted a subpoena for the documents.114 However, on October 18, the White House Counsel sent a letter stating that “the White House cannot comply with the October 4 subpoena.”115
Since then, there has been no evidence of a willingness by the President to produce any of the documents covered by the subpoena to the White House. The State Department made passing references to potentially engaging in an “accommodations” process in response to its September 27 subpoena.116 However, there has been no effort to do so, and departments and agencies have not produced any documents in response to subpoenas issued as part of the House impeachment inquiry. The President also made no apparent effort to accommodate the House’s need for witness testimony and instead continued to flatly refuse to allow Executive Branch officials to testify.
3. The President’s Refusal to Produce Any and All Subpoenaed Documents
Pursuant to the President’s orders, the White House, federal departments and agencies, and key witnesses refused to produce any documents in response to duly authorized subpoenas issued pursuant to the House’s impeachment inquiry.
Overview
Following President Trump’s categorical order, not a single document has been produced by the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense, or the Department of Energy in response to 71 specific, individualized requests or demands for records in their possession, custody, or control. The subpoenas to federal departments and agencies remain in full fo
rce and effect. These agencies and offices also blocked many current and former officials from producing records directly to the Committees.
Certain witnesses defied the President’s sweeping, categorical, and baseless order and identified the substance of key documents. Other witnesses identified numerous additional documents that the President and various agencies are withholding that are directly relevant to the impeachment inquiry.
The President’s personal attorney, Mr. Giuliani, although a private citizen, also sought to rely on the President’s order, as communicated in Mr. Cipollone’s letter on October 8, to justify his decision to disobey a lawful subpoena for documents.
The White House
On September 9, the Committees sent a letter to White House Counsel Pat Cipollone seeking six categories of documents in response to reports indicating that, “for nearly two years, the President and his personal attorney, Rudy Giuliani, appear to have acted outside legitimate law enforcement and diplomatic channels to coerce the Ukrainian government into pursuing two politically-motivated investigations under the guise of anti-corruption activity.”117 The Committees asked the White House to voluntarily produce responsive documents by September 16.118 The White House did not provide any response by that date.
On September 24, the Committees sent a follow-up letter requesting that the White House produce the documents by September 26.119 Again, the White House did not provide any documents or respond by that date.
Having received no response from the White House, then-Chairman Elijah E. Cummings sent a memorandum to Members of the Committee on Oversight and Reform, which has jurisdiction over the Executive Office of the President, explaining that he was preparing to issue a subpoena in light of the White House’s non-compliance and non-responsiveness. He wrote:
Over the past several weeks, the Committees tried several times to obtain voluntary compliance with our requests for documents, but the White House has refused to engage with—or even respond to—the Committees.120
On October 4, the Committees sent a letter to Acting White House Chief of Staff Mick Mulvaney transmitting a subpoena issued by Chairman Cummings compelling the White House to produce documents by October 18.121
As discussed above, on October 8, the White House Counsel sent a letter to Speaker Pelosi and the Committees stating that “President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.”122 The White House Counsel also sent a letter on October 18, confirming that “the White House cannot comply with the October 4 subpoena to Acting Chief of Staff Mulvaney.”123
To date, the White House has not produced a single document in response to the subpoena.124 Instead, the White House has released to the public only two documents—call records from the President’s phone calls with President Zelensky on April 21 and July 25.125
Witnesses who testified before the Committees have identified multiple additional documents that the President is withholding that are directly relevant to the impeachment inquiry, including but not limited to:
briefing materials for President Trump’s call with President Zelensky on July 25 prepared by Lt. Col. Alexander S. Vindman, Director for Ukraine at the National Security Council;126
notes relating to the July 25 call taken by Lt. Col. Vindman and Tim Morrison, the former Senior Director for Europe and Russia on the National Security Council;127
an August 15 “Presidential decision memo” prepared by Lt. Col. Vindman and approved by Mr. Morrison conveying “the consensus views from the entire deputies small group” that “the security assistance be released”;128
National Security Council staff summaries of conclusions from meetings at the principal, deputy, or sub-deputy level relating to Ukraine, including military assistance;129
call records between President Trump and Ambassador Gordon Sondland, United States Ambassador to the European Union;130
National Security Council Legal Advisor John Eisenberg’s notes and correspondence relating to discussions with Lt. Col. Vindman regarding the July 10 meetings in which Ambassador Sondland requested investigations in exchange for a White House meeting;131
the memorandum of conversation from President Trump’s meeting in New York with President Zelensky on September 25;132 and
as explained below, emails and other messages between Ambassador Sondland and senior White House officials, including Acting Chief of Staff Mick Mulvaney, Senior Advisor to the Chief of Staff Rob Blair, and then-National Security Advisor John Bolton, among other high-level Trump Administration officials.133
The Committees also have good-faith reason to believe that the White House is in possession of and continues to withhold significantly more documents and records responsive to the subpoena and of direct relevance to the impeachment inquiry.
The Committees have closely tracked public reports that the White House is in possession of other correspondence and records of direct relevance to the impeachment inquiry. On November 24, for instance, a news report revealed that the White House had conducted a confidential, internal records review of the hold on military assistance in response to the Committees’ inquiry. The review reportedly “turned up hundreds of documents that reveal extensive efforts to generate an after-the-fact justification for the decision and a debate over whether the delay was legal.”134
Office of the Vice President
On October 4, the Committees sent a letter to Vice President Mike Pence seeking 13 categories of documents in response to reports that he and his staff were directly involved in the matters under investigation. The Committees wrote:
Recently, public reports have raised questions about any role you may have played in conveying or reinforcing the President’s stark message to the Ukrainian President. The reports include specific references to a member of your staff who may have participated directly in the July 25, 2019, call, documents you may have obtained or reviewed, including the record of the call, and your September 1, 2019, meeting with the Ukrainian President in Warsaw, during which you reportedly discussed the Administration’s hold on U.S. security assistance to Ukraine.135
The Committees asked the Vice President to produce responsive documents by October 15.136 On that date, Matthew E. Morgan, Counsel to the Vice President, responded to the Committees by refusing to cooperate and reciting many of the same baseless arguments as the White House Counsel. He wrote:
[T]he purported “impeachment inquiry” has been designed and implemented in a manner that calls into question your commitment to fundamental fairness and due process rights…. Never before in history has the Speaker of the House attempted to launch an “impeachment inquiry” against a President without a majority of the House of Representatives voting to authorize a constitutionally acceptable process.137
To date, the Vice President has not produced a single document sought by the Committees and has not indicated any intent to do so going forward.
Witnesses who testified before the Committees have identified multiple additional documents that the Vice President is withholding that are directly relevant to the impeachment inquiry, including but not limited to:
notes taken by Jennifer Williams, Special Advisor to the Vice President for Europe and Russia, during the call between President Trump and President Zelensky on July 25;138
notes taken by Lt. Gen. Keith Kellogg, National Security Advisor to the Vice President, during the call between President Trump and President Zelensky on July 25;139
materials regarding the July 25 call that were placed in the Vice President’s briefing book that same day; 140
the memorandum of conversation from Vice President Pence’s call with President Zelensky on September 18;141 and
briefing materials prepared for Vice President Pence’s meeting with President Zelensky September
1 in Warsaw, Poland.142
The Committees also have good-faith reason to believe that the Office of the Vice President is in possession of and continues to withhold significantly more documents and records responsive to their request and of direct relevance to the impeachment inquiry.
Office of Management and Budget
On October 7, the Committees sent a letter to Russell Vought, Acting Director of the Office of Management and Budget (OMB), conveying a subpoena issued by the Intelligence Committee for nine categories of documents in response to public reports that the President directed OMB to freeze hundreds of millions of dollars in military assistance appropriated by Congress to help Ukraine counter Russian aggression. The Committees wrote:
According to multiple press reports, at some point in July 2019, President Trump ordered Acting Chief of Staff and Office of Management and Budget (OMB) Director Mick Mulvaney to freeze the military aid to Ukraine, and Mr. Mulvaney reportedly conveyed the President’s order “through the budget office to the Pentagon and the State Department, which were told only that the administration was looking at whether the spending was necessary.”143
The subpoena compelled Acting Director Vought to produce responsive documents by October 15.144 On that day, OMB Associate Director for Legislative Affairs Jason Yaworske responded by refusing to produce any documents and reciting many of the same baseless arguments as the White House Counsel:
[T]he President has advised that “[g]iven that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.”…President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.145
The Impeachment Report Page 36