The Impeachment Report
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To date, Acting Director Vought 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 Acting Director Vought is withholding that are directly relevant to the impeachment inquiry, including but not limited to:
a June 19 email from OMB Associate Director of National Security Programs Michael Duffey to DOD Deputy Comptroller Elaine McCusker regarding the fact that “the President had seen a media report and he had questions about the assistance” and expressing “interest in getting more information from the Department of Defense,” specifically a “description of the program”;146
a July 12 email from White House Assistant to the President and Senior Advisor to the Chief of Staff Robert Blair to Associate Director Duffey explaining that the “President is directing a hold on military support for Ukraine” and not mentioning any other country or security assistance package;147 and
an August 7 memorandum drafted in preparation for Acting Director Vought’s attendance at a Principals Committee meeting on Ukrainian security assistance, which included a recommendation to lift the military assistance hold.148
The Committees also have good-faith reason to believe that the Office of Management and Budget 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.
Department of State
On September 9, the Committees sent a letter to Secretary of State Mike Pompeo requesting six categories of documents in response to reports that “President Trump and his personal attorney appear to have increased pressure on the Ukrainian government and its justice system in service of President Trump’s reelection campaign” and “the State Department may be abetting this scheme.”149 The Committees requested that Secretary Pompeo produce responsive documents by September 16. The Secretary did not provide any documents or response by that date.
On September 23, the Committees sent a follow-up letter asking Secretary Pompeo to “inform the Committees by close of business on Thursday, September 26, 2019, whether you intend to fully comply with these requests or whether subpoenas will be necessary.”150 The Secretary did not provide any documents or respond by that date.
On September 27, the Committees sent a letter to Secretary Pompeo conveying a subpoena for documents issued by Rep. Eliot Engel, the Chairman of the Committee on Foreign Affairs, compelling the production of documents by October 4.151
Since Secretary Pompeo had failed to respond, the Committees also sent separate letters to six individual State Department employees seeking documents in their possession and requesting that they participate in depositions with the Committees.152
On October 1, Secretary Pompeo responded to the Committees for the first time. He objected to the Committees seeking documents directly from State Department employees after he failed to produce them, claiming inaccurately that such a request was “an act of intimidation and an invitation to violate federal records laws.”153 He also claimed that the Committees’ inquiry was “an attempt to intimidate, bully, and treat improperly the distinguished professionals of the Department of State.”154
To the contrary, Deputy Assistant Secretary George Kent, one of the State Department professionals from whom the Committees sought documents and testimony, testified that he “had not felt bullied, threatened, and intimidated.”155 Rather, Mr. Kent said that the language in Secretary Pompeo’s letter, which had been drafted by a State Department attorney without consulting Mr. Kent, “was inaccurate.”156 Mr. Kent explained that, when he raised this concern, the State Department attorney “spent the next 5 minutes glaring at me” and then “got very angry.” According to Mr. Kent, the official “started pointing at me with a clenched jaw and saying, What you did in there, if Congress knew what you were doing, they could say that you were trying to sort of control, or change the process of collecting documents.”157
With respect to his own compliance with the subpoena for documents, Secretary Pompeo wrote that he “intends to respond to that subpoena by the noticed return date of October 4, 2019.”158
Later on October 1, the Committees sent a letter to Deputy Secretary of State John J. Sullivan in light of new evidence that Secretary Pompeo participated on President Trump’s call with President Zelensky on July 25. The Committees wrote:
We are writing to you because Secretary Pompeo now appears to have an obvious conflict of interest. He reportedly participated personally in the July 25, 2019 call, in which President Donald Trump pressed President Volodymyr Zelensky of Ukraine to investigate the son of former Vice President Joseph Biden immediately after the Ukrainian President raised his desire for United States military assistance to counter Russian aggression.
If true, Secretary Pompeo is now a fact witness in the impeachment inquiry. He should not be making any decisions regarding witness testimony or document production in order to protect himself or the President. Any effort by the Secretary or the Department to intimidate or prevent witnesses from testifying or withhold documents from the Committees shall constitute evidence of obstruction of the impeachment inquiry.159
The following day, at a press conference in Italy, Secretary Pompeo publicly acknowledged that he had been on the July 25 call between Presidents Trump and Zelensky.160
On October 7, Committee staff met with State Department officials who acknowledged that they had taken no steps to collect documents in response to the September 9 letter, but instead had waited for the September 27 subpoena before beginning to search for responsive records. During that conversation, the Committees made a good-faith attempt to engage the Department in the constitutionally-mandated accommodations process. The Committees requested, on a priority basis, “any and all documents that it received directly from Ambassador Sondland,” as well as “documents—especially those documents identified by the witnesses as responsive—related to Ambassador Yovanovitch and DAS [Deputy Assistant Secretary] Kent.” The depositions of these witnesses—Ambassador Sondland, Ambassador Yovanovitch, and Mr. Kent—were scheduled for the days shortly after that October 7 meeting. The Department’s representatives stated that they would take the request back to senior State Department officials, but never provided any further response.161
To date, Secretary Pompeo has not produced a single document sought by the Committees and has not indicated any intent to do so going forward. In addition, the Department has ordered its employees not to produce documents in their personal possession. For example, on October 14, the Department sent a letter to Mr. Kent’s personal attorney warning that “your client is not authorized to disclose to Congress any records relating to official duties.”162
Moreover, the Department appears to have actively discouraged its employees from identifying documents responsive to the Committees’ subpoena. Mr. Kent testified in his deposition that he informed a Department attorney about additional responsive records that the Department had not collected, including an email from Assistant Secretary of State for Consular Affairs David Risch, who “had spoken to Rudy Giuliani several times in January about trying to get a visa for the corrupt former prosecutor general of Ukraine, Viktor Shokin.”163 The Department attorney “objected to [Mr. Kent] raising of the additional information” and “made clear that he did not think it was appropriate for [Mr. Kent] to make the suggestion.”164 Mr. Kent responded that what he was “trying to do was make sure that the Department was being fully responsive.”165
Certain witnesses defied the President’s directive and produced the substance of key documents. For example, Ambassador Sondland attached ten exhibits to his written hearing statement.166 These exhibits contained replicas of emails and WhatsApp messages between Ambassador Sondland and high-level Trump Administration officials, including Secretary Pompeo, Secretary
Perry, Acting Chief of Staff Mick Mulvaney, and former National Security Advisor John Bolton.167 The exhibits also contained a replica of a WhatsApp message between Ambassador Sondland and Mr. Yermak.168
Earlier in the investigation, Ambassador Kurt Volker had produced key text messages with Ambassador Taylor, Ambassador Sondland, President Zelensky’s senior aide, Andriy Yermak, Mr. Giuliani, and others very soon after the Committees requested them and prior to Mr. Cipollone’s letter on October 8 conveying the President’s directive not to comply.169
The Department also prevented Ambassador Sondland—a current State Department employee—from accessing records to prepare for his testimony. As described above, federal law imposes fines and up to five years in prison for anyone who corruptly or by threats “impedes or endeavors to influence, obstruct, or impede” the “due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House.”170 Ambassador Sondland explained that the Department’s actions directly impeded his testimony:
I have not had access to all of my phone records, State Department emails, and other State Department documents. And I was told I could not work with my EU Staff to pull together the relevant files. Having access to the State Department materials would have been very helpful to me in trying to reconstruct with whom I spoke and met, when, and what was said….
My lawyers and I have made multiple requests to the State Department and the White House for these materials. Yet, these materials were not provided to me. They have also refused to share these materials with this Committee. These documents are not classified and, in fairness, should have been made available.171
He testified, “I have been hampered to provide completely accurate testimony without the benefit of those documents.”172 Ambassador Sondland also stated:
Despite repeated requests to the White House and the State Department, I have not been granted access to all of the phone records, and I would like to review those phone records, along with any notes and other documents that may exist, to determine if I can provide more complete testimony to assist Congress.173
On November 22, the Department produced 99 pages of emails, letters, notes, timelines, and news articles to a non-partisan, nonprofit ethics watchdog organization pursuant to a court order in a lawsuit filed under the Freedom of Information Act (FOIA).174 This handful of documents was limited to a narrow window of time and specific people, but it clearly indicates that the Department is withholding documents that are responsive to the Committees’ requests.
For example, the Department’s FOIA production contains an email from the Office Manager to the Secretary of State to “S_All” sent on March 26 which states that “S is speaking with Rudy Giuliani.”175 It also contains a March 27 email in which Madeleine Westerhout, the Personal Secretary to President Trump, facilitates another phone call between Rudy Giuliani and Secretary Pompeo.176 These documents are directly responsive to the September 27 subpoena for “all documents and communications, from January 20, 2017 to the present, relating or referring to: Communications between any current or former State Department officials or employees and Rudolph W. Giuliani, including any text messages using personal or work-related devices.”177
Witnesses who testified before the Committees have identified multiple additional documents that Secretary Pompeo is withholding that are directly relevant to the impeachment inquiry, including but not limited to:
a cable on August 29 from Bill Taylor, the Chargé d’Affaires for U.S. Embassy in Kyiv, Ukraine, at the recommendation of National Security Advisor John Bolton, sent directly to Secretary Pompeo “describing the folly I saw in withholding military aid to Ukraine at a time when hostilities were still active in the east and when Russia was watching closely to gauge the level of American support for the Ukrainian Government” and telling Secretary Pompeo “that I could not and would not defend such a policy”;178
WhatsApp messages and emails that Ambassador Sondland replicated and provided as exhibits to the Intelligence Committee showing key communications between Ambassador Sondland and high-level Trump Administration officials, including Secretary Pompeo, Secretary Perry, Acting Chief of Staff Mick Mulvaney, and National Security Advisor John Bolton, as well as President Zelensky’s senior aide, Andriy Yermak;179
notes and memoranda to file from Mr. Kent, Ambassador Taylor, and others, including Ambassador Taylor’s “little notebook” in which he would “take notes on conversations, in particular when I’m not in the office,” such as meetings with Ukrainians or when out and receiving a phone call,” as well as his “small, little spiral notebook” of calls that took place in the office;180
emails among Philip Reeker, Acting Assistant Secretary of State, Bureau of European and Eurasian Affairs; David Hale, Under Secretary of State for Political Affairs; Mr. Kent; and others regarding the unsuccessful effort to issue a public statement in support of Ambassador Yovanovitch, including the “large number of emails related to the press guidance and the allegations about the Ambassador” from the “late March timeframe.”181
The Committees also have good-faith reason to believe that the Department of State 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.
Department of Defense
On October 7, the Committees sent a letter to Secretary of Defense Mark Esper conveying a subpoena issued by the Intelligence Committee for 14 categories of documents in response to reports that the President directed a freeze of hundreds of millions of dollars in military aid appropriated by Congress to help Ukraine counter Russian aggression. The Committees wrote:
Officials at the Departments of State and Defense reportedly were “puzzled and alarmed” after learning about the White House’s directive. Defense Department officials reportedly “tried to make a case to the White House that the Ukraine aid was effective and should not be looked at in the same manner as other aid,” but “those arguments were ignored.”182
The subpoena required Secretary Esper to produce responsive documents by October 15. On October 13, Secretary Esper stated in a public interview that the Department would comply with the Intelligence Committee’s subpoena:
Q:
Very quickly, are you going to comply with the subpoena that the House provided you and provide documents to them regarding to the halt to military aid to Ukraine?
A:
Yeah we will do everything we can to cooperate with the Congress. Just in the last week or two, my general counsel sent out a note as we typically do in these situations to ensure documents are retained.
Q:
Is that a yes?
A:
That’s a yes.
Q:
You will comply with the subpoena?
A:
We will do everything we can to comply.183
On October 15, however, Assistant Secretary of Defense for Legislative Affairs Robert R. Hood responded by refusing to produce any documents and reciting many of the same legally unsupportable arguments as the White House Counsel:
In light of these concerns, and in view of the President’s position as expressed in the White House Counsel’s October 8 letter, and without waiving any other objections to the subpoena that the Department may have, the Department is unable to comply with your request for documents at this time.184
To date, Secretary Esper has not produced a single document sought by the Committees and has not indicated any intent to do so going forward, notwithstanding his public promise to “do everything we can to comply.”185
Witnesses who testifie
d before the Committees have identified multiple additional documents that Secretary Esper is withholding that are directly relevant to the impeachment inquiry, including but not limited to:
DOD staff readouts from National Security Council meetings at the principal, deputy, or sub-deputy level relating to Ukraine, including military assistance;186
an email from Secretary Esper’s Chief of Staff, to Laura K. Cooper, Deputy Assistant Secretary of Defense for Russia, Ukraine, and Eurasia, in late July “asking for follow-up on a meeting with the President,” including information on whether “U.S. industry [is] providing any of this equipment,” “international contributions” to Ukraine, and “who gave this funding”;187
fact sheets and other information provided by Ms. Cooper in response to the email request;188
an email sent to Ms. Cooper’s staff on July 25 at 2:31 p.m.—the same day as President’s Trump’s call with Ukrainian President Zelensky—stating that the Ukrainian Embassy was inquiring about the status of military aid, suggesting that Ukrainian officials were concerned about the status of the military aid much earlier than ever previously acknowledged by the Executive Branch;189
an email sent to Ms. Cooper’s staff on July 25 at 4:25 p.m. stating that the Ukrainian Embassy and The Hill newspaper had become aware of the situation with the military assistance funding;190 and