The Impeachment Report
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an email received by Ms. Cooper’s staff on July 3 at 4:23 p.m. from the Department of State explaining that the Department of State “had heard the CN [Congressional Notification] is currently being blocked by OMB.”191
The Committees also have good-faith reason to believe that the Department of Defense 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 Energy
On October 10, the Committees sent a letter to Secretary of Energy Rick Perry conveying a subpoena issued by the Intelligence Committee for ten categories of documents in response to reports about his involvement with 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. These reports have also raised significant questions about your efforts to press Ukrainian officials to change the management structure at a Ukrainian state-owned energy company to benefit individuals involved with Rudy Giuliani’s push to get Ukrainian officials to interfere in our 2020 election.192
The subpoena required Secretary Perry to produce responsive documents by October 18. On that day, Melissa F. Burnison, the Assistant Secretary of Energy for Congressional and Intergovernmental Affairs, responded by refusing to produce any documents and reciting many of the same flawed arguments as the White House Counsel:
Pursuant to these concerns, the Department restates the President’s position: “Given 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.”193
To date, Secretary Perry 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 documents that Secretary Perry is withholding that are directly relevant to the impeachment inquiry, including but not limited to:
a document passed directly from Secretary Perry to President Zelensky in a May 2019 meeting with a list of “people he trusts” that President Zelensky could seek advice from on issues of relating to “key Ukrainian energy-sector contacts,” according to David Holmes, the Political Counselor at the U.S. Embassy in Kyiv;194
a June 5 email from Philip Reeker, Acting Assistant Secretary of State, Bureau of European and Eurasian Affairs, to Secretary Perry and others, regarding “Zelenskyy’s visit to Brussels, and the critical—perhaps historic—role of the dinner and engagement Gordon [Ambassador Sondland] coordinated”;195 and
a July 19 email from Secretary Perry in which he states “Mick [Acting Chief of Staff Mick Mulvaney] just confirmed the call being set up for tomorrow by NSC” in reference to a call between President Trump and President Zelensky.196
The Committees also have good-faith reason to believe that the Department of Energy 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.
Rudy Giuliani and His Associates
On September 30, the Committees sent a letter conveying a subpoena issued by the Intelligence Committee to the President’s personal attorney, Rudy Giuliani, compelling the production of 23 categories of documents relating to his actions in Ukraine.197
On October 15, Mr. Giuliani’s counsel responded to the Committees by stating that Mr. Giuliani “will not participate because this appears to be an unconstitutional, baseless, and illegitimate ‘impeachment inquiry.’”198 He also stated: “Mr. Giuliani adopts all the positions set forth in Mr. Cipollone’s October 8, 2019 letter on behalf of President Donald J. Trump.”199
To date, Mr. Giuliani has not produced a single document sought by the Committees and has not indicated any intent to do so going forward.
On September 30, the Committees sent letters to two of Mr. Giuliani’s business associates—Igor Fruman and Lev Parnas—requesting testimony and eleven categories of documents from each.200 The Committees sought documents from Mr. Fruman and Mr. Parnas related to their efforts to influence U.S. elections.
According to press reports, Mr. Parnas and Mr. Fruman reportedly were “assisting with Giuliani’s push to get Ukrainian officials to investigate former vice president Joe Biden and his son as well as Giuliani’s claim that Democrats conspired with Ukrainians in the 2016 campaign.” Press reports also indicate that Mr. Parnas and Mr. Fruman were involved with efforts to press Ukrainian officials to change the management structure at a Ukrainian state-owned energy company, Naftogaz, to benefit individuals involved with Mr. Giuliani’s push to get Ukrainian officials to interfere in the 2020 election.201
On October 3, counsel to Mr. Fruman and Mr. Parnas responded to Committee staff, explaining his clients’ relationship with Mr. Giuliani and President Trump:
Be advised that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice.202
With respect to preparing Mr. Fruman and Mr. Parnas’ response, their counsel wrote: “The amount of time requires is difficult to determine. [sic] but we are happy to keep you advised of our progress and engage in a rolling production of non-privileged documents.”
On October 8, their counsel wrote again to Committee staff, stating:
This is an update. We continue to meet with Mr. Parnas and Mr. Fruman to gather the facts and documents related to the many subjects and persons detailed in your September 30 letter and to evaluate all of that information in light of the privileges we raised in our last letter.203
On October 9, their counsel wrote to Committee staff, stating, “Please be advised that Messrs. Parnas and Fruman agree with and adopt the position of White House Counsel pertaining to Democrat inquiry.”204
On October 10, the Committees transmitted subpoenas compelling Mr. Fruman and Mr. Parnas to produce eleven categories of documents.205 That same day, their counsel responded:
As I did in my recent letter of October 8, 2019, please be advised we were in the formative stages of recovering and reviewing records on October 9 when Messrs. Parnas and Fruman were arrested by the FBI and locked up in Virginia pursuant to Four Count Indictment by a Federal Grand Jury in the Southern District of New York unsealed on October 10, 2019.
Further their records and other belongings, including materials sought by your subpoenas, were seized pursuant warrants [sic] by the FBI in several locations on the 9th or 10th of October.206
To date, Mr. Fruman has not produced a single document in response to his subpoena and has not indicated any intent to do so going forward.
With respect to Mr. Parnas, he obtained new counsel during the course of the impeachment inquiry. His new attorney has asserted that Mr. Parnas will cooperate with the House’s inquiry, stating: “We will honor and not avoid the committee’s requests to the extent they are legally proper, while scrupulously protecting Mr. Parnas’ privileges including that of the Fifth Amendment.”207
In contrast to Mr. Giuliani and Mr. Fruman, Mr. Parnas has begun rolling production of certain records in his possession, custody, or control in response to the subpoena, which the Committees are evaluating. The Committees expect Mr. Parnas’ full compliance with the subpoena.
4. The President’s Refusal to Allow Top Aides to Testify
At President Trump’s direction, twelve current or former Administration officials refused to testify as part of the House’s impeachment inquiry, ten of whom did so in defiance of duly authorized subpoenas. The Presid
ent’s orders were coordinated and executed by the White House Counsel and others, and they prevented testimony from officials from the White House, National Security Council, Office of Management and Budget, Department of State, and Department of Energy.
Overview
No other President in history has issued an order categorically directing the entire Executive Branch not to testify before Congress, including in the context of an impeachment inquiry. President Trump issued just such an order.
As reflected in White House Counsel Pat Cipollone’s October 8 letter, President Trump directed all government witnesses to violate their legal obligations by defying House subpoenas—regardless of their office or position.208 President Trump even extended his order to former officials no longer employed by the federal government. This Administration-wide effort to prevent all witnesses from providing testimony was coordinated and comprehensive.
These witnesses were warned that their refusal to testify “shall constitute evidence that may be used against you in a contempt proceeding” and “may be used as an adverse inference against you and the President.”
Despite the President’s unprecedented commands, the House gathered a wealth of evidence of his conduct from courageous individuals who were willing to follow the law, comply with duly authorized subpoenas, and tell the truth. Nevertheless, the President’s efforts to obstruct witness testimony deprived Congress and the public of additional evidence.
In following President Trump’s orders to defy duly authorized Congressional subpoenas, several Administration officials who, to date, remain under subpoena may have placed themselves at risk of being held in criminal contempt of Congress.209 These witnesses were warned explicitly that their refusal to obey lawful orders to testify “shall constitute evidence that may be used against you in a contempt proceeding” and could also result in adverse inferences being drawn against both them and the President.210
Mick Mulvaney, Acting White House Chief of Staff
On November 5, the Committees sent a letter to Mick Mulvaney, the Acting White House Chief of Staff, seeking his appearance at a deposition on November 8.211 The Committees received no response to this letter.
On November 7, the Intelligence Committee issued a subpoena compelling Mr. Mulvaney’s appearance at a deposition on November 8.212 On November 8, Mr. Mulvaney’s personal attorney sent an email to Committee staff stating that “Mr. Mulvaney will not be attending the deposition today, and he is considering the full range of his legal options.”213
Mr. Mulvaney’s personal attorney provided a letter that was sent on November 8 from Mr. Cipollone, stating that “the President directs Mr. Mulvaney not to appear at the Committee’s scheduled deposition on November 8, 2019.”214 Mr. Mulvaney’s personal attorney also provided a letter sent on November 7 from Steven A. Engel, Assistant Attorney General at the Office of Legal Counsel of the Department of Justice, to Mr. Cipollone, stating, “Mr. Mulvaney is absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.”215
Mr. Mulvaney did not appear at the deposition on November 8, in defiance of the Committees’ subpoena. The Committees met, and Chairman Schiff acknowledged Mr. Mulvaney’s absence, stating:
Neither Congress nor the courts recognize a blanket absolute immunity as a basis to defy a congressional subpoena. Mr. Mulvaney and the White House, therefore, have no legitimate legal basis to evade a duly authorized subpoena. The President’s direction to Mr. Mulvaney to defy our subpoena can, therefore, only be construed as an effort to delay testimony and obstruct the inquiry, consistent with the White House Counsel’s letter dated October 8, 2019.216
Chairman Schiff also explained Mr. Mulvaney’s knowledge of and role in facilitating the President’s conduct:
Mr. Mulvaney’s role in facilitating the White House’s obstruction of the impeachment inquiry does not occur in a vacuum. Over the past several weeks, we have gathered extensive evidence of the President’s abuse of power related to pressuring Ukraine to pursue investigations that would benefit the President personally and politically and jeopardize national security in doing so. Some of that evidence has revealed that Mr. Mulvaney was a percipient witness to misconduct by the President and may have had a role in certain actions under investigation. The evidence shows that Mr. Mulvaney may have coordinated with U.S. Ambassador to the European Union Gordon Sondland, Rudy Giuliani, and others to carry out President Trump’s scheme to condition a White House meeting with President Zelensky on the Ukrainians’ pursuit of investigations of the Bidens, Burisma holdings, and purported Ukrainian interference in the 2016 U.S. Presidential election. In addition, evidence suggests that Mr. Mulvaney may have played a central role in President Trump’s attempt to coerce Ukraine into launching his desired political investigations by withholding nearly $400 million in vital security assistance from Ukraine that had been appropriated by Congress. At a White House press briefing on October 17, 2019, Mr. Mulvaney admitted publicly that President Trump ordered the hold on Ukraine security assistance to further the President’s own personal political interests rather than the national interest….
Based on the record evidence gathered to date, we can only infer that Mr. Mulvaney’s refusal to testify is intended to prevent the Committees from learning additional evidence of President Trump’s misconduct and that Mr. Mulvaney’s testimony would corroborate and confirm other witnesses’ accounts of such misconduct. If the White House had evidence to contest those facts, they would allow Mr. Mulvaney to be deposed. Instead, the President and the White House are hiding and trying to conceal the truth from the American people. Given the extensive evidence the Committees have already uncovered, the only result of this stonewalling is to buttress the case for obstruction of this inquiry.217
To date, Mr. Mulvaney has not changed his position about compliance with the subpoena.218
Robert B. Blair, Assistant to the President and Senior Advisor to the Chief of Staff
On October 24, the Committees sent a letter to Robert B. Blair, an Assistant to the President and the Senior Advisor to Acting Chief of Staff Mulvaney, seeking Mr. Blair’s appearance at a deposition on November 1.219 On November 2, Mr. Blair’s personal attorney sent a letter to the Committees stating:
Mr. Blair has been directed by the White House not to appear and testify at the Committees’ proposed deposition, based on the Department of Justice’s advice that the Committees may not validly require an executive branch witness to appear at such a deposition without the assistance of agency counsel. In light of the clear direction he has been given by the Executive Branch, Mr. Blair must respectfully decline to testify, as you propose, on Monday, November 4, 2019.220
On November 3, the Committees sent a letter to Mr. Blair’s personal attorney transmitting a subpoena compelling Mr. Blair to appear at a deposition on November 4.221
On November 4, Mr. Blair did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Blair’s absence, stating:
Although the committees requested a copy of the correspondence from the White House and Department of Justice, Mr. Blair’s Counsel did not provide it to the Committees. This new and shifting rationale from the White House, like the others it has used to attempt to block witnesses from appearing to provide testimony about the President’s misconduct, has no basis in law or the Constitution and is a serious affront to decades of precedent in which Republicans and Democrats have used exactly the same procedures to depose executive branch officials without agency counsel present, including some of the most senior aides to multiple previous Presidents.222
Unlike President Trump’s directive to Acting Chief of Staff Mulvaney, neither Mr. Blair nor the White House have asserted that Mr. Blair is “absolutely immune” from providing testimony to Congress. To date, Mr. Blair has not changed his position or contacted th
e Committees about compliance with the subpoena.
Ambassador John Bolton, Former National Security Advisor
On October 30, the Committees sent a letter to the personal attorney of Ambassador John Bolton, the former National Security Advisor to President Trump, seeking his appearance at a deposition on November 7.223 Later that day, Ambassador Bolton’s personal attorney sent an email to Committee staff stating, “As you no doubt have anticipated, Ambassador Bolton is not willing to appear voluntarily.”224
On November 7, Ambassador Bolton did not appear for the scheduled deposition. On November 8, Ambassador Bolton’s personal attorney sent a letter to Douglas Letter, the General Counsel of the House of Representatives, suggesting that, if Ambassador Bolton were subpoenaed, he would file a lawsuit and would comply with the subpoena only if ordered to do so by the court. He referenced a lawsuit filed by another former official, Dr. Charles Kupperman, represented by the same attorney and stated:
As I emphasized in my previous responses to letters from the House Chairs, Dr. Kupperman stands ready, as does Ambassador Bolton, to testify if the Judiciary resolves the conflict in favor of the Legislative Branch’s position respecting such testimony.225
To date, Ambassador Bolton has not changed his position or come forward to testify.226
John A. Eisenberg, Deputy Counsel to the President for National Security Affairs and Legal Advisor, National Security Council
On October 30, the Committees sent a letter to John A. Eisenberg, the Deputy Counsel to the President for National Security Affairs and the Legal Advisor at the National Security Council, seeking his appearance at a deposition on November 4.227 The Committees received no response to this letter.228