The Impeachment Report
Page 39
On November 1, the Committees sent a letter to Mr. Eisenberg transmitting a subpoena compelling his appearance at a deposition on November 4.229 On November 4, Mr. Eisenberg’s personal attorney sent a letter to the Committees, stating:
Even if Mr. Eisenberg had been afforded a reasonable amount of time to prepare, the President has instructed Mr. Eisenberg not to appear at the deposition. Enclosed with this letter is the President’s instruction as relayed by Pat A. Cipollone, Counsel to the President, in a letter dated November 3, 2019. We also enclose a letter, also dated November 3, 2019, from Steven A. Engel, Assistant Attorney General for the Office of Legal Counsel at the Department of Justice, to Mr. Cipollone advising that Mr. Eisenberg is “absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.” Under these circumstances, Mr. Eisenberg has no other option that is consistent with his legal and ethical obligations except to follow the direction of his client and employer, the President of the United States. Accordingly, Mr. Eisenberg will not be appearing for a deposition at this time.230
Enclosed was a letter sent on November 3 from Mr. Cipollone to Mr. Eisenberg’s personal attorney stating that “the President directs Mr. Eisenberg not to appear at the Committee’s deposition on Monday, November 4, 2019.”231 Also enclosed was a letter sent on November 3 by Assistant Attorney General Steven A. Engel to the Office of Legal Counsel of the Department of Justice to Mr. Cipollone stating:
You have asked whether the Committee may compel Mr. Eisenberg to testify. We conclude that he is absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.232
Mr. Eisenberg did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Eisenberg’s absence, stating:
Despite his legal obligations to comply, Mr. Eisenberg is not present here today and has therefore defied a duly authorized congressional subpoena. This morning, in an email received at 9:00 a.m., when the deposition was supposed to commence, Mr. Eisenberg’s personal attorney sent a letter to the committee stating that President Trump had, quote, “instructed Mr. Eisenberg not to appear at the deposition,” unquote. The attorney attached correspondence from White House counsel Pat Cipollone and a letter from the Office of Legal Counsel at Department of Justice. The OLC letter informs the White House that Mr. Eisenberg is purportedly, quote, “absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President,” unquote….
Moreover, neither Congress nor the courts recognize a blanket, quote, “absolute immunity,” unquote, as a basis to defy a congressional subpoena. Mr. Eisenberg and the White House, therefore, have no basis for evading a lawful subpoena. As such, the President’s direction to Mr. Eisenberg to defy a lawful compulsory process can 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. As Mr. Eisenberg was informed, the Committees may consider his noncompliance with the subpoena as evidence in a future contempt proceeding. His failure or refusal to appear, moreover, shall constitute evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against the President. The subpoena remains in full force. The committees reserve all of their rights, including the right to raise this matter at a future Intelligence Committee proceeding, at the discretion of the chair of the committee.
Mr. Eisenberg’s nonappearance today adds to a growing body of evidence of the White House seeking to obstruct the White House’s impeachment inquiry. To the extent the White House believes that an issue could be raised at the deposition that may implicate a valid claim of privilege, the White House may seek to assert that privilege with the Committee in advance of the deposition. To date, as has been the case in every other deposition as part of the inquiry, the White House has not done so. Mr. Eisenberg’s failure to appear today also flies in the face of historical precedent. Even absent impeachment proceedings, congressional committees have deposed senior White House officials, including White House counsels and senior White House lawyers.233
Michael Ellis, Senior Associate Counsel to the President and Deputy Legal Advisor, National Security Council
On October 30, the Committees sent a letter to Michael Ellis, a Senior Associate Counsel to the President and the Deputy Legal Advisor at the National Security Council, seeking his appearance at a deposition on November 4.234 On November 2, Mr. Ellis’ personal attorney sent an email to Committee staff stating:
[W]e are in receipt of an opinion from the Office of Legal Counsel providing guidance on the validity of a subpoena under the current terms and conditions and based on that guidance we are not in a position to appear for a deposition at this time.235
This email followed the November 1 Office of Legal Counsel opinion, discussed above, which sought to extend the reach of the President’s earlier direction to defy Congressional subpoenas and provided justification for noncompliance by officials who could not plausibly be considered among the President’s closest advisors.
On November 3, Mr. Ellis’ personal attorney sent another email to Committee staff stating:
[O]ur guidance is that the failure to permit agency counsel to attend a deposition of Mr. Ellis would not allow sufficient protection of relevant privileges and therefore render any subpoena constitutionally invalid. As an Executive branch employee Mr. Ellis is required to follow this guidance.236
On November 3, the Committees sent a letter to Mr. Ellis’ personal attorney transmitting a subpoena compelling his appearance at a deposition on November 4, stating:
Mr. Ellis’ failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute further evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against Mr. Ellis and the President.237
On November 4, Mr. Ellis did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Ellis’ absence, stating:
Other than the White House’s objections to longstanding congressional practice, the committees are aware of no other valid constitutional privilege asserted by the White House to direct Mr. Ellis to defy this subpoena.238
To date, Mr. Ellis has not changed his position or contacted the Committees about compliance with the subpoena.
Preston Wells Griffith, Senior Director for International Energy and Environment, National Security Council
On October 24, the Committees sent a letter to Preston Wells Griffith, the Senior Director for International Energy and Environment at the National Security Council, seeking his appearance at a deposition on November 5.239 On November 4, Mr. Griffith’s personal attorney sent a letter to the Committees stating:
As discussed with Committee counsel, Mr. Griffith respectfully declines to appear for a deposition before the joint Committees conducting the impeachment inquiry, based upon the direction of White House Counsel that he not appear due to agency counsel not being permitted.240
Later that day, the Committees sent a letter to Mr. Griffith’s personal attorney transmitting a subpoena compelling his appearance at a deposition on November 5, stating:
Mr. Griffith’s failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute further evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against Mr. Griffith and the President.241
On November 5, Mr. Griffith did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Griffith’s absence, stating:
Although the committees requested a copy of a
ny written direction from the White House, Mr. Griffith’s counsel has not provided any such documentation to the committees. The White House’s newly invented rationale for obstructing the impeachment inquiry appears based on a legal opinion that was issued by the Department of Justice Office of Legal Counsel just last Friday, November 1. It is noteworthy and telling that OLC issued this opinion after multiple current and former White House, State Department, and Department of Defense officials testified before the committees, both voluntarily and pursuant to subpoena, all without agency counsel present. The White House’s invocation of this self-serving OLC opinion should therefore be seen for what it is: a desperate attempt to staunch the flow of incriminating testimony from the executive branch officials about the President’s abuse of power.242
To date, Mr. Griffith has not changed his position or contacted the Committees about compliance with the subpoena.
Dr. Charles M. Kupperman, Former Deputy Assistant to the President for National Security Affairs, National Security Council
On October 16, the Committees sent a letter to Dr. Charles M. Kupperman, a former Deputy Assistant to the President for National Security Affairs, seeking his appearance at a deposition on October 23.243
On October 25, the Intelligence Committee issued a subpoena compelling Dr. Kupperman to appear at a deposition on October 28.244
Later that day, Dr. Kupperman’s personal attorney sent an email to Committee staff attaching a 17-page complaint in federal court seeking a declaratory judgment as to whether he should comply with the subpoena.245 His counsel wrote:
Pending the courts’ determination as to which Branch should prevail, Dr. Kupperman will not effectively adjudicate the conflict by appearing and testifying before the Committees.246
Enclosed as part of the complaint was a letter sent on October 25 from Mr. Cipollone to Dr. Kupperman’s personal attorney stating that “the President directs Mr. Kupperman not to appear at the Committee’s scheduled hearing on Monday, October 28, 2019.”247 Also enclosed was a letter sent on October 25 from Steven A. Engel, Assistant Attorney General at the Office of Legal Counsel of the Department of Justice, to Mr. Cipollone stating that Dr. Kupperman “is absolutely immune from compelled congressional testimony in his capacity as a former senior advisor to the President.”248
On October 26, the Committees sent a letter to Dr. Kupperman’s personal attorneys, stating:
In light of the direction from the White House, which lacks any valid legal basis, the Committees shall consider your client’s defiance of a congressional subpoena as additional evidence of the President’s obstruction of the House’s impeachment inquiry.249
Later that day, Dr. Kupperman’s personal attorney sent a letter to Committee staff, stating: “The proper course for Dr. Kupperman, we respectfully submit, is to lay the conflicting positions before the Court and abide by the Court’s judgment as to which is correct.”250 On October 27, Dr. Kupperman’s personal attorney sent a letter to Committee staff, writing: “If your clients’ position on the merits of this issue is correct, it will prevail in court, and Dr. Kupperman, I assure you again, will comply with the Court’s judgment.”251
On November 5, the Committees sent a letter to Dr. Kupperman’s personal attorneys withdrawing the subpoena, stating:
The question whether the Executive Branch’s “absolute immunity” theory has any basis in law is currently before the court in Committee on the Judiciary v. McGahn, No. 19-cv-2379 (D.D.C. filed Aug. 7, 2019). In addition to not suffering from the jurisdictional flaws in Dr. Kupperman’s suit, McGahn is procedurally much further along.252
On November 8, Dr. Kupperman’s personal attorney sent a letter to Douglas Letter, the General Counsel of the House of Representatives, stating that Dr. Kupperman stands ready to testify “if the Judiciary resolves the conflict in favor of the Legislative Branch’s position respecting such testimony.”253
On November 25, the district court in McGahn held that “with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist.” The court explained there is “no basis in the law” for a claim of absolute immunity regardless of the position of the aides in question or whether they “are privy to national security matters, or work solely on domestic issues.”254 To date and notwithstanding the ruling in McGahn as it relates to Presidential aides who “are privy to national security matters,” Dr. Kupperman continues to refuse to testify, and his case remains pending in federal court.255
Russell T. Vought, Acting Director, Office of Management and Budget
On October 11, the Committees sent a letter to Russell T. Vought, the Acting Director of OMB, seeking his appearance at a deposition on October 25.256 On October 21, an attorney at OMB sent an email to Committee staff stating:
Per the White House Counsel’s October 8, 2019 letter, the President has directed that “[c]onsistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office, [he] cannot permit his Administration to participate in this partisan inquiry under these circumstances.” Therefore, Acting Director Vought will not be participating in Friday’s deposition.257
That same day, Mr. Vought publicly stated:
I saw some Fake News over the weekend to correct. As the WH letter made clear two weeks ago, OMB officials—myself and Mike Duffey—will not be complying with deposition requests this week. #shamprocess.258
On October 25, the Committees sent a letter transmitting a subpoena compelling Mr. Vought’s appearance at a deposition on November 6.259
On November 4, Jason A. Yaworske, the Associate Director for Legislative Affairs at OMB, sent a letter to Chairman Schiff stating:
The Office of Management and Budget (OMB) reasserts its position that, as directed by the White House Counsel’s October 8, 2019, letter, OMB will not participate in this partisan and unfair impeachment inquiry…. Therefore, Mr. Vought, Mr. Duffey, and Mr. McCormack will not appear at their respective depositions without being permitted to bring agency counsel.260
On November 5, Mr. Vought did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Vought’s absence, stating:
On Monday of this week, OMB reasserted its position that, quote, “as directed by the White House Counsel’s October 8, 2019, letter, OMB will not participate in this partisan and unfair impeachment inquiry,” unquote. OMB argues that the impeachment inquiry lacks basic due process protections and relies on OLC opinion that the committee cannot lawfully bar agency counsel from depositions. 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.261
To date, Mr. Vought has not changed his position or contacted the Committees about compliance with the subpoena.
Michael Duffey, Associate Director for National Security Programs, Office of Management and Budget
On October 11, the Committees sent a letter to Michael Duffey, the Associate Director for National Security Programs at OMB, seeking his appearance at a deposition on October 23.262
On October 21, an attorney at OMB sent an email to Committee staff stating:
Per the White House Counsel’s October 8, 2019 letter, the President has directed that “[c]onsistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office, [he] cannot permit his Administration to participate in this partisan inquiry under th
ese circumstances.” Therefore, Mike Duffey will not be participating in Wednesday’s deposition.263
On October 25, the Committees sent a letter transmitting a subpoena compelling Mr. Duffey to appear at a deposition on November 5, 2019, stating:
Your failure or refusal to appear at the deposition, including at the direction or behest of the President or the White House, shall constitute evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against the President.264
On November 4, Jason A. Yaworske, the Associate Director for Legislative Affairs at OMB, sent a letter to Chairman Schiff stating that, “as directed by the White House Counsel’s October 8, 2019, letter,” Mr. Duffey will not appear at his deposition.265
On November 5, Mr. Duffey did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Duffey’s absence, stating:
This effort by the President to attempt to block Mr. Duffey from appearing can only be interpreted as a further effort by the President and the White House to obstruct the impeachment inquiry and Congress’s lawful and constitutional functions.266
To date, Mr. Duffey has not changed his position or contacted the Committees about compliance with the subpoena.
Brian McCormack, Associate Director for Natural Resources, Energy, and Science, Office of Management and Budget
On October 24, the Committees sent a letter to Brian McCormack, the Associate Director for Natural Resources, Energy, and Science at OMB, seeking his appearance at a deposition on November 4.267
On November 1, the Committees sent a letter transmitting a subpoena compelling Mr. McCormack’s appearance at a deposition on November 4.268