The Impeachment Report

  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. McCormack will not appear at his deposition.269

  On November 4, Mr. McCormack did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. McCormack’s absence, stating:

  At approximately 11:30 a.m. today, committee staff received via email a letter from the Associate Director for Legislative Affairs at OMB. The letter states that, quote, “As directed by the White House counsel’s October 8, 2019, letter,” unquote, OMB will not participate in the House’s impeachment inquiry. The letter further states that, based on the advice of the Office of Legal Counsel that, quote, “the committee cannot lawfully bar agency counsel from these depositions,” unquote, Mr. McCormack will not appear at his deposition today without agency counsel present. As Mr. McCormack was informed, the committees may consider his noncompliance with a 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.270

  To date, Mr. McCormack has not changed his position or contacted the Committees about compliance with the subpoena.

  T. Ulrich Brechbuhl, Counselor, Department of State

  On September 13, the Committees sent a letter to Secretary of State Mike Pompeo seeking transcribed interviews with Counselor T. Ulrich Brechbuhl and other officials.271 The Committees received no direct, substantive response to this letter.

  On September 27, the Committees sent a letter informing Secretary Pompeo that Mr. Brechbuhl’s deposition was being scheduled on October 8, stating:

  On September 13, the Committees wrote to request that you make State Department employees available for transcribed interviews. We asked you to provide, by September 20, dates by which the employees would be made available for transcribed interviews. You failed to comply with the Committees’ request.272

  That same day, the Committees sent a letter directly to Mr. Brechbuhl seeking his appearance at a deposition on October 8.273

  On October 1, Secretary Pompeo sent a letter to the Committees stating, “Based on the profound procedural and legal deficiencies noted above, the Committee’s requested dates for depositions are not feasible.”274

  Later that day, the Committees sent a letter to Deputy Secretary of State John J. Sullivan stating that the State Department “must immediately halt all efforts to interfere with the testimony of State Department witnesses before Congress.”275

  On October 2, Mr. Brechbuhl’s personal attorney sent an email to Committee staff stating:

  My law firm is in the process of being formally retained to assist Mr. Brechbuhl in connection with this matter. It will take us some time to complete those logistics, review the request and associated request for documents, and to meet with our client to insure he is appropriately prepared for any deposition. It will not be possible to accomplish those tasks before October 8, 2019. Thus, as I am sure that you can understand, Mr. Brechbuhl will not be able to appear on that date as he requires a sufficient opportunity to consult with counsel. Moreover, given the concerns expressed in Secretary Pompeo’s letter of October 1, 2019, to Chairman Engel, any participation in a deposition would need to be coordinated with our stakeholders.276

  On October 8, Committee staff sent an email to Mr. Brechbuhl’s personal attorney stating: “The Committees have agreed to reschedule Mr. Brechbuhl’s deposition to Thursday, October 17. Please confirm that Mr. Brechbuhl intends to appear voluntarily.”277 On October 9, Committee staff sent an email to Mr. Brechbuhl’s personal attorney asking him to “confirm by COB today whether Mr. Brechbuhl intends to appear voluntarily.”278 Later that day, Mr. Brechbuhl’s personal attorney sent an email to Committee staff stating, “I am still seeking clarification from the State Department regarding this deposition.”279

  On October 25, the Committees sent a letter to Mr. Brechbuhl’s personal attorney transmitting a subpoena compelling Mr. Brechbuhl’s appearance at a deposition on November 6.280

  On November 5, Mr. Brechbuhl’s personal attorney sent a letter to the Committees stating:

  Mr. Brechbuhl respects the important Constitutional powers vested in the United States Congress. And, indeed, he would welcome the opportunity to address through testimony an existing inaccuracy in the public record—the false claim that Mr. Brechbuhl in any way personally participated in the telephone call between President Trump and President Zelensky that occurred on July 25, 2019. However, Mr. Brechbuhl has received a letter of instruction from the State Department, directing that he not appear. The State Department letter of instruction asserts significant Executive Branch interests as the basis for direction not to appear and also asserts that the subpoena Mr. Brechbuhl received is invalid. The letter is supported by analysis from the United States Department of Justice. We are also aware that litigation has recently been initiated in the United States District Court for the District of Columbia that may bear on resolving the significant issues now arising between the Committees and the President. Given these circumstances, Mr. Brechbuhl is not able to appear on November 6, 2019.281

  On November 6, Mr. Brechbuhl did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Brechbuhl’s absence, stating:

  The committees requested a copy of the State Department’s letter and the Department of Justice analysis, but Mr. Brechbuhl’s attorney has not responded. While the letter from Mr. Brechbuhl’s attorney provides only vague references to unidentified executive branch interests and a DOJ analysis as the basis for the State Department’s blocking of Mr. Brechbuhl’s testimony, the Department’s latest obstruction of this inquiry appears to be predicated on the opinion issued by the Department of Justice Office of Legal Counsel just last Friday, November 1, well after the subpoena was issued to Mr. Brechbuhl. It is noteworthy and telling that the OLC issued this opinion only after multiple State Department officials testified in this inquiry, both voluntarily and pursuant to subpoena, all without agency counsel present. Indeed, this morning, the third-highest-ranking official at the State Department, Under Secretary David Hale, appeared and has begun testifying in accordance with his legal obligations pursuant to a subpoena.282

  The Committees sent Mr. Brechbuhl’s personal attorney two separate inquiries asking him to provide a copy of the “letter of instruction” that Mr. Brechbuhl claimed to have received from the State Department directing him to defy a congressional subpoena.283 Mr. Brechbuhl’s personal attorney furnished the Committees with a copy of the letter on December 2. The State Department’s letter to Mr. Brechbuhl is dated November 4, 2019.284

  To date, Mr. Brechbuhl has not changed his position or contacted the Committees about compliance with the subpoena.

  Secretary Rick Perry, Department of Energy

  On November 1, the Committees sent a letter to Secretary of Energy Rick Perry seeking his appearance at a deposition on November 6, 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.285

  On November 5, an attorney at the Department of Energy sent a letter to the Committees stating:

  Please be advised that the Secretary will not appear on Wednesday, November 6, 2019, at 2:00 pm for a deposition to be conducted jointly by the Permanent Select Committee on Intelligence, the Committee on Foreign Affairs, and the Committee on Oversight and Reform.286

  To date, Secretary Perry has not changed his position
or come forward to testify.

  5. The President’s Unsuccessful Attempts to Block Key Witnesses

  Despite President Trump’s explicit orders that no Executive Branch employees should cooperate with the House’s impeachment inquiry and efforts by federal agencies to limit the testimony of those who did, multiple key officials complied with duly authorized subpoenas and provided critical testimony at depositions and public hearings. These officials adhered to the rule of law and obeyed lawful subpoenas.

  Overview

  Despite President Trump’s orders that no Executive Branch employees should cooperate with the House’s impeachment inquiry, multiple key officials complied with duly authorized subpoenas and provided critical testimony at depositions and public hearings. These officials not only served their nation honorably, but they fulfilled their oath to support and defend the Constitution of the United States.

  In addition to the President’s broad orders seeking to prohibit all Executive Branch employees from testifying, many of these witnesses were personally directed by senior political appointees not to cooperate with the House’s impeachment inquiry. These directives frequently cited or enclosed copies of Mr. Cipollone’s October 8 letter conveying the President’s order not to comply.

  For example, the State Department, relying on President Trump’s order, attempted to block Ambassador Marie Yovanovitch from testifying, but she fulfilled her legal obligations by appearing at a deposition on October 11 and a hearing on November 15. More than a dozen current and former officials followed her courageous example by testifying at depositions and public hearings over the course of the last two months. The testimony from these witnesses produced overwhelming and clear evidence of President Trump’s misconduct, which is described in detail in Section I of this report.

  Ambassador Marie Yovanovitch, Former U.S. Ambassador to Ukraine, Department of State

  On September 13, the Committees sent a letter to Secretary of State Mike Pompeo seeking a transcribed interview with Ambassador Marie Yovanovitch and other State Department officials.287 The Committees received no direct, substantive response to this letter.

  On September 27, the Committees sent a letter informing Secretary Pompeo that Ambassador Yovanovitch’s deposition was being scheduled on October 2, stating:

  On September 13, the Committees wrote to request that you make State Department employees available for transcribed interviews. We asked you to provide, by September 20, dates by which the employees would be made available for transcribed interviews. You failed to comply with the Committees’ request.288

  Also on September 27, the Committees sent a letter directly to Ambassador Yovanovitch seeking her appearance at a deposition on October 2.289

  On October 1, Secretary Pompeo sent a letter to the Committees stating:

  Therefore, the five officials subject to your letter may not attend any interview or deposition without counsel from the Executive Branch present to ensure that the Executive Branch’s constitutional authority to control the disclosure of confidential information, including deliberative matters and diplomatic communications, is not impaired.290

  After further discussions with Ambassador Yovanovitch’s counsel, her deposition was rescheduled for October 11. On October 10, Brian Bulatao, the Under Secretary of State for Management, sent a letter to Ambassador Yovanovitch’s personal attorney directing Ambassador Yovanovitch not to appear for her deposition and enclosing Mr. Cipollone’s October 8 letter stating that President Trump and his Administration would not participate in the House’s impeachment inquiry. Mr. Bulatao’s letter stated:

  Accordingly, in accordance with applicable law, I write on behalf of the Department of State, pursuant to the President’s instruction reflected in Mr. Cipollone’s letter, to instruct your client (as a current employee of the Department of State), consistent with Mr. Cipollone’s letter, not to appear before the Committees under the present circumstances.291

  That same day, October 10, when asked whether he intended to block Ambassador Yovanovitch from testifying the next day, President Trump stated: “You know, I don’t think people should be allowed. You have to run a country, I don’t think you should be allowed to do that.”292

  On the morning of Ambassador Yovanovitch’s deposition on October 11, the Committees sent a letter to her personal attorney transmitting a subpoena compelling her appearance, stating:

  In light of recent attempts by the Administration to direct your client not to appear voluntarily for the deposition, the enclosed subpoena now compels your client’s mandatory appearance at today’s deposition on October 11, 2019.293

  Later on October 11, Ambassador Yovanovitch’s personal attorney sent a letter to Mr. Bulatao, stating:

  In my capacity as counsel for Ambassador Marie Yovanovitch, I have received your letter of October 10, 2019, directing the Ambassador not to appear voluntarily for her scheduled deposition testimony on October 11, 2019 before the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on Oversight and Reform in connection with the House of Representatives’s impeachment inquiry. Just this morning, the Ambassador received a subpoena issued by the House Permanent Select Committee on Intelligence, requiring her to appear for the deposition as scheduled. Although the Ambassador has faithfully and consistently honored her professional duties as a State Department employee—including at all times following her abrupt termination as U.S. Ambassador to Ukraine—she is unable to obey your most recent directive. As the recipient of a duly issued congressional subpoena, Ambassador Yovanovitch is, in my judgment, legally obligated to attend the depositions as scheduled.294

  Ambassador Yovanovitch participated in the deposition on October 11, in compliance with the Committees’ subpoena.295 During her deposition, Ambassador Yovanovitch’s personal attorney confirmed that “she received a direction by the Under Secretary to decline to appear voluntarily.”296

  On November 15, the Committees transmitted a subpoena to Ambassador Yovanovitch compelling her to testify at a public hearing of the Intelligence Committee that same day.297 Ambassador Yovanovitch complied with the Committees’ subpoena and testified at the public hearing. During the hearing, Chairman Schiff acknowledged Ambassador Yovanovitch’s compliance, stating:

  Ambassador, I want to thank you for your decades of service. I want to thank you, as Mr. Maloney said, for being the first one through the gap. What you did in coming forward and answering a lawful subpoena was to give courage to others that also witnessed wrongdoing, that they, too, could show the same courage that you have, that they could stand up, speak out, answer questions, they could endure whatever threats, insults may come their way. And so in your long and distinguished career you have done another great public service in answering the call of our subpoena and testifying before us today.298

  Ambassador Gordon Sondland, U.S. Ambassador to the European Union, Department of State

  On September 27, 2019, the Committees sent a letter informing Secretary Pompeo that Ambassador Gordon Sondland’s deposition was being scheduled on October 10.299 That same day, the Committees sent a letter directly to Ambassador Sondland seeking his appearance at the deposition.300 On October 1, Secretary Pompeo sent a letter to the Committees stating that Ambassador Sondland “may not attend” the deposition.301

  After further discussions with Ambassador Sondland’s personal attorney, his deposition was rescheduled for October 8. On October 7, Mr. Bulatao sent a letter to Ambassador Sondland’s personal attorney, stating:

  Based on consultations with the White House, the State Department hereby instructs your client, Ambassador Gordon Sondland, not to appear tomorrow for his voluntary deposition based on the Executive Branch confidentiality interests remaining to be addressed, including, in particular, the Committee’s refusal to permit agency counsel to appear.302

  On October 8, Ambassad
or Sondland’s personal attorney sent an email to the Committees stating:

  I am incredibly disappointed to report that, overnight, the State Department advised that it will direct Ambassador Sondland not to appear before the Committee this morning. While we have not yet gotten written confirmation of that direction, we wanted to advise you of this development at the earliest opportunity. As the sitting US Ambassador to the EU and employee of the State Department, Ambassador Sondland is required to follow this direction. I hope that whatever concerns the Department has can be resolved promptly and that Ambassador Sondland’s testimony can be scheduled at the earliest opportunity. I am very sorry for the inexcusably late notice, but we are sharing this with you as soon as it was confirmed to us. Ambassador Sondland is personally disappointed that he will not be able to answer the Committee’s questions this morning.303

  On October 8, the Committees sent a letter to Ambassador Sondland transmitting a subpoena compelling his appearance at a deposition on October 16, stating:

  The Committees have not received any communication directly from the White House or the State Department about this matter. In light of Secretary Pompeo’s direct intervention to block your appearance before our Committees, we are left with no choice but to compel your appearance at a deposition pursuant to the enclosed subpoena.304

  On October 14, the Committees sent a letter to Ambassador Sondland stating:

  We hereby write to memorialize our agreement with your counsel, Mr. Robert Luskin, Esq., to adjourn the date and time of your document production and deposition to October 17, 2019, at 9:30 a.m. at the Capitol, HVC-304.305