The Impeachment Report

  96 Letter from Pat A. Cipollone, Counsel to the President, The White House, to House Speaker Nancy Pelosi, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs, and Chairman Elijah E. Cummings, Committee on Oversight and Reform (Oct. 8, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-10.08.2019.pdf). On November 1, 2019, after the House approved H. Res. 660, the Administration continued to press this spurious claim, with the Office of Legal Counsel issuing an opinion asserting that “Congressional committees participating in an impeachment inquiry may not validly compel executive branch witnesses to testify about matters that potentially involve information protected by executive privilege without the assistance of agency counsel.” Department of Justice, Office of Legal Counsel, Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context (Nov. 1, 2019) (online at www.justice.gov/olc/file/1214996/download). As discussed in this section, this position is entirely unsupported by judicial precedent and erroneous.

  97 U.S. Const., Art. I, sec. 5, cl. 2.

  98 The regulations that govern House depositions state: “Only members, Committee staff designated by the chair or ranking minority member, an official reporter, the witness, and the witness’s counsel are permitted to attend. Observers or counsel for other persons, including counsel for government agencies, may not attend.” 116th Congress Regulations for Use of Deposition Authority, Congressional Record, H1216 (Jan. 25, 2019) (online at www.congress.gov/116/crec/2019/01/25/CREC-2019-01-25-pt1-PgH1216-2.pdf).

  99 Committee on Oversight and Reform, Committee Depositions in the House of Representatives: Longstanding Republican and Democratic Practice of Excluding Agency Counsel (Nov. 5, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Committee%20Depositions%20in%20the%20House%20of%20Representatives_Longstanding%20Republican%20and%20Democratic%20Practice%20of%20Excluding%20Agency%20Counsel.pdf).

  100 Letter from Pat A. Cipollone, Counsel to the President, The White House, to House Speaker Nancy Pelosi, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs Committee, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform (Oct. 8, 2019).

  101 Barenblatt v. United States, 360 U.S. 109 (1959).

  102 See, e.g., S. 2537 (requiring an investigation by the State Department Inspector General into the withholding of aid to Ukraine, directing the President to immediately obligate previously appropriated funds, and authorizing funds to counter Russian influence); H.R. 3047 (providing support to Ukraine to defend its independence, sovereignty, and territorial integrity).

  103 In re Application of the Committee on the Judiciary, United States House of Representatives, 2019 U.S. Dist. LEXIS 184857 (D.D.C. 2019), quoting Trump v. Mazars United States, 2019 U.S. App. LEXIS 30475 (D.D.C. 2019) (“Nothing ‘in the Constitution or case law…compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process.’”).

  104 See, e.g., the 1974 Amendments to the Freedom of Information Act, P.L. 93-502; Ethics in Government Act of 1978, P.L. 95-52; Presidential Records Act of 1978, P.L. 95-591; Federal Election Campaign Act Amendments of 1974, P.L. 93-443.

  105 Letter from Pat A. Cipollone, Counsel to the President, The White House, to House Speaker Nancy Pelosi, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs Committee, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform (Oct. 8, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-10.08.2019.pdf); Letter from Pat A. Cipollone, Counsel to the President, The White House, to Acting Chairwoman Carolyn Maloney, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence Chairman Eliot L. Engel, Chairman, House Committee on Foreign Affairs (Oct. 18, 2019).

  106 United States v. American Tel. & Tel. Co., 567 F.2d 121 (D.C. Cir. 1977) (“Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”).

  107 For example, on November 22, 2019, the Department of State produced to a private party 99 pages of emails, letters, notes, timelines, and news articles under a court order pursuant to the Freedom of Information Act. State Department Releases Ukraine Documents to American Oversight, American Oversight (Nov. 22, 2019) (online at www.americanoversight.org/state-department-releases-ukraine-documents-to-american-oversight).

  108 Even if the President were to make a colorable assertion of executive privilege, which he has not, the Supreme Court has held that the privilege is not absolute. In the context of a grand jury subpoena, the Supreme Court found that the President’s “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” United States v. Nixon, 418 U.S. 683 (1974). Similarly, the D.C. Circuit has held that executive privilege is a “qualified” privilege and that “courts must balance the public interests at stake in determining whether the privilege should yield in a particular case, and must specifically consider the need of the party seeking privileged evidence.” In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). As described above, Congress’ need for information during an impeachment inquiry is particularly “compelling.” In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F. Supp. 1219 (D.D.C. 1974) (“[I]t should not be forgotten that we deal in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United States. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.”).

  109 See, e.g., Letter from Pat A. Cipollone, Counsel to the President, The White House, to William Pittard, Counsel to Mick Mulvaney, Acting Chief of Staff, The White House (Nov. 8, 2019) (asserting that Acting Chief of Staff Mick Mulvaney “is absolutely immune from compelled congressional testimony with respect to matters related to his service as a senior advisor to the President” and that “[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions”).

  110 Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) (“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.”).

  111 Committee on the Judiciary v. McGahn, Case No. 1:19-cv-02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019). As of this report, an appeal is pending in the U.S. Court of Appeals for the D.C. Circuit. No. 19-5331 (D.C. Cir.).

  112 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Pat A. Cipollone, Counsel to the President, The White House (Sept. 9, 2019) (online at https://intelligence.house.gov/uploadedfiles/ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf).

  113 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. C
ummings, House Committee on Oversight and Reform, to Pat A. Cipollone, Counsel to the President, The White House (Sept. 24, 2019) (online at https://intelligence.house.gov/uploadedfiles/2019-09-24.eec_engel_schiff_to_cipollone-wh_re_potus_ukraine.pdf).

  114 Letter from Chairman Elijah E. Cummings, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Eliot L. Engel, House Committee on Foreign Affairs, to Pat A. Cipollone, Counsel to the President, The White House (Oct. 4, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-04.EEC%20Engel%20Schiff%20to%20Mulvaney-WH%20re%20Subpoena.pdf).

  115 Letter from Pat A. Cipollone, Counsel to the President, The White House, to Acting Chairwoman Carolyn Maloney, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Eliot L. Engel, House Committee on Foreign Affairs, (Oct. 18, 2019).

  116 Email from Bureau of Legislative Affairs, Department of State, to Committee Staff (Oct. 2, 2019).

  117 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Pat A. Cipollone, Counsel to the President, The White House (Sept. 9, 2019) (online at https://intelligence.house.gov/uploadedfiles/ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf).

  118 Id.

  119 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Pat A. Cipollone, Counsel to the President, The White House (Sept. 24, 2019).

  120 Memorandum from Chairman Elijah E. Cummings to Members of the House Committee on Oversight and Reform, Notice of Intent to Issue Subpoenas (Oct. 2, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-02.COR%20WH%20Subpoena%20Memo%20and%20Schedule.pdf).

  121 Letter from Chairman Elijah E. Cummings, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Eliot L. Engel, House Committee on Foreign Affairs, to Pat A. Cipollone, Counsel to the President, The White House (Oct. 4, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-04.EEC%20Engel%20Schiff%20to%20Mulvaney-WH%20re%20Subpoena.pdf).

  122 Letter from Pat A. Cipollone, Counsel to the President, The White House, to Speaker Nancy Pelosi, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform (Oct. 8, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-10.08.2019.pdf).

  123 Letter from Pat A. Cipollone, Counsel to the President, The White House, to Acting Chairwoman Carolyn Maloney, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Eliot L. Engel, House Committee on Foreign Affairs, (Oct. 18, 2019).

  124 On September 13, the Intelligence Committee issued a subpoena pursuant to its oversight authority to the Acting Director of National Intelligence to compel the production of a complaint submitted by an Intelligence Community whistleblower, as well as other records. The Intelligence Committee issued this subpoena before Speaker Pelosi announced on September 24 that the Intelligence Committee and other committees would be continuing their work under the umbrella of the impeachment inquiry being conducted by the Judiciary Committee. As a result, this subpoena should not be conflated with subpoenas issued as part of the impeachment inquiry. See Letter from Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, to Joseph Maguire, Acting Director of National Intelligence, Office of the Director of National Intelligence (Sept. 13, 2019).

  125 The White House, Memorandum of Telephone Conversation (Apr. 21, 2019) (online at http://cdn.cnn.com/cnn/2019/images/11/15/4-21-19.trump-zelensky.call.pdf); The White House, Memorandum of Telephone Conversation (July 25, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf).

  126 Vindman-Williams Hearing Tr. at 31-32.

  127 Vindman Dep. Tr. at 53; Morrison Dep. Tr. at 19-20.

  128 Vindman Dep. Tr. at 186-187; Morrison Dep. Tr. at 166-167.

  129 See, e.g., Cooper Dep. Tr. at 42-43.

  130 Sondland Hearing Tr. at 78-79.

  131 Vindman Dep. Tr. at 36-37.

  132 Holmes Dep. Tr. at 31.

  133 House Permanent Select Committee on Intelligence, Opening Statement of Ambassador Gordon Sondland, Department of State, Impeachment, 116th Cong. (Nov. 20, 2019).

  134 The review reportedly uncovered “early August email exchanges between acting chief of staff Mick Mulvaney and White House budget officials seeking to provide an explanation for withholding the funds after the president had already ordered a hold in mid-July on the nearly $400 million in security assistance.” The review also reportedly included interviews with “some key White House officials involved in handling Ukraine aid and dealing with complaints and concerns in the aftermath of the call between Trump and Zelensky.” White House Review Turns Up Emails Showing Extensive Effort to Justify Trump’s Decision to Block Ukraine Military Aid, Washington Post (Nov. 24, 2019) (online at www.washingtonpost.com/politics/white-house-review-turns-up-emails-showing-extensive-effort-to-justify-trumps-decision-to-block-ukraine-military-aid/2019/11/24/2121cf98-0d57-11ea-bd9d-c628fd48b3a0_story.html).

  135 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Vice President Michael Pence, Office of the Vice President (Oct. 4, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-04.EEC%20Engel%20Schiff%20%20re%20Request%20to%20VP%2010-04-19%20Letter%20and%20Schedule.pdf).

  136 Id.

  137 Letter from Matthew E. Morgan, Counsel to the Vice President, Office of the Vice President, to Chairman Elijah E. Cummings, House Committee on Oversight and Reform, Chairman Eliot L. Engel, House Committee on Foreign Affairs, and Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence (Oct. 15, 2019).

  138 Vindman-Williams Hearing Tr. at 61.

  139 Williams Dep. Tr. at 129.

  140 Vindman-Williams Hearing Tr. at 15.

  141 Vindman-Williams Hearing Tr. at 23-24.

  142 Williams Dep. Tr. at 74-75.

  143 Letter from Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Acting Director Russell T. Vought, Office of Management and Budget (Oct. 7, 2019) (online at https://intelligence.house.gov/uploadedfiles/2019-10-07.eec_engel_schiff_to_vought-_omb_re_subpoena.pdf).

  144 Id.

  145 Letter from Jason Yaworske, Associate Director for Legislative Affairs, Office of Management and Budget, to Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence (Oct. 15, 2019).

  146 Sandy Dep. Tr. at 23-26.

  147 Sandy Dep. Tr. at 36-41.

  148 Sandy Dep. Tr. at 57-60, 62-63.

  149 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Secretary Michael R. Pompeo, Department of State (Sept. 9, 2019) (online at https://intelligence.house.gov/uploadedfiles/ele_schiff_cummings_letter_to_sec_pompeo_on_ukraine.pdf).

  150 Letter from Chairman Eliot L. Engel, House Committee on Foreign
Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Secretary Michael R. Pompeo, Department of State (Sept. 23, 2019).

  151 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Secretary Michael R. Pompeo, Department of State (Sept. 27, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-09-27.EEC%20Engel%20Schiff%20%20to%20Pompeo-%20State%20re%20Document%20Subpoena.pdf).

  152 Letter from Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Elijah E. Cummings, House Committee on Oversight and Reform, and Chairman Eliot L. Engel, House Committee on Foreign Affairs, to Ambassador Gordon Sondland, Department of State (Oct. 8, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-08.EEC%20Engel%20Schiff%20to%20Sondland%20re%20Subpoena.pdf); Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Ambassador William Taylor, Department of State (Oct. 4, 2019); Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Counselor T. Ulrich Brechbuhl, Department of State (Sept. 27, 2019) (online at https://intelligence.house.gov/uploadedfiles/20190927_-_eec_engel_schiff_to_brechbuhl_re_individual_deposition_request.pdf); Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Deputy Assistant Secretary George P. Kent, Department of State (Sept. 27, 2019); Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Ambassador Kurt Volker, Department of State (Sept. 27, 2019); Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Ambassador Marie Yovanovitch, Department of State (Sept. 27, 2019).