On Tuesday, Rudy Giuliani announced that he would not comply with a congressional subpoena for records related to his and Donald Trump’s efforts to pressure Ukraine’s government to launch investigations of Trump’s political rivals. The subpoena also seeks records related to allegations that Trump and his associates may have made American military aid to the country and a meeting between Trump and Ukraine’s president conditional on providing dirt.
“If they enforce it, then we will see what happens,” the president’s personal attorney told ABC News in what amounted to the most direct challenge to Congress’ weeks-old impeachment inquiry.
As Giuliani’s promise to disobey the subpoena was being issued to the House Intelligence Committee, though, that same committee was interviewing Deputy Assistant Secretary of State for European and Eurasian Affairs George Kent. Kent gave his testimony despite the administration’s repeated claims that executive branch employees and former employees were forbidden from participating in the impeachment inquiry.
The interview with Kent—who reportedly testified that he had issued a warning about Giuliani’s “disinformation” campaign as far back as March—followed depositions from former foreign policy officials Kurt Volker and Fiona Hill, as well as current State Department employee and former Ambassador to Ukraine Marie Yovanovitch. Later this week, other former and current State Department employees—including a former top aide to Secretary of State Mike Pompeo and the current U.S. ambassador to the European Union, who was at the center of the military aid negotiation—are scheduled to testify.
The White House and State Department’s position that officials may not cooperate in the impeachment probe was reiterated on Monday in a letter Hill’s attorneys received from the White House counsel’s office attempting to limit the former national security official’s testimony. The letter, written by deputy counsel to the president Michael M. Purpura, purported to tell Hill that she was under a “continuing obligation not to reveal classified information or information subject to executive privilege,” including “diplomatic communications.” The letter concluded, “[t]o be clear, Dr. Hill is not authorized to reveal or release any classified information or any information subject to executive privilege.”
Despite these efforts to restrict Hill’s testimony, she reportedly testified directly about diplomatic communications, including a July 10 meeting with senior Ukrainian officials in which U.S. Ambassador to the EU Gordon Sondland allegedly raised the prospect of Ukraine investigating Joe Biden. (Hill also reportedly testified that former National Security Adviser John Bolton went “ballistic” over this conversation, viewed Sondland and White House chief of staff Mick Mulvaney as participating in a metaphorical “drug deal,” and ordered Hill to tell the National Security Council’s top lawyer about the conversation.)
One might think that after violating a direct order from a White House lawyer, Hill would face immediate consequences. But nothing has happened to her. The same goes for current State Department employees Yovanovitch and Kent, who both reportedly testified in defiance of instructions from the State Department not to do so. As of Tuesday, neither had been reported to face any professional consequences for directly defying their boss, Pompeo, by disregarding his direct orders and testifying against the president.
Ultimately, Hill, Yovanovitch, and Kent—along with Volker, the former U.S. ambassador to NATO—have all called Pompeo’s bluff.
It’s worth examining Pompeo’s demands and their legitimacy, since it reveals the extent to which he has lost control over his subordinates as well as the absurdity of the White House’s efforts to obstruct the investigation.
Pompeo previously said that his employees and former employees were not permitted to testify before congressional investigators without administration counsel present. In an Oct. 1 letter, Pompeo told one of the investigating committees that five such officials who had been scheduled for voluntary depositions would not be permitted to participate in the inquiry. “[T]he 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,” Pompeo wrote. The House issued subpoenas, and three of the employees in question—Kent, Yovanovitch, and Volker—have all testified without administration counsel, and the two others—Sondland and State Department counselor T. Ulrich Brechbuhl—are scheduled to do the same.
It’s unclear if Pompeo is ignoring his own order for these officials not to testify without administration counsel, or if he has recognized that enforcing his order by punishing employees who had complied with a lawful subpoena might prove difficult. But the administration has not dropped its demand that testimony be limited. Purpura’s letter, for instance, lamented that administration counsel would not be allowed to attend Hill’s testimony “to ensure that she does not breach her obligations with respect to privileged information.” But those laments did not stop her from testifying, and there have been no consequences.
In the cases of Yovanovitch and Kent, Pompeo could presumably attempt to fire them for disregarding his orders. That, too, has not yet happened.
That’s because Pompeo’s empty threats, along with the administration’s bluster demanding total obstruction of Congress’ impeachment inquiry, are based on radical legal theories that would place the president above the law and that most resemble Fox News rants with the thinnest veneer of legalese.
Exhibit A in these efforts was White House counsel Pat Cipollone’s letter last week informing Congress that the administration would not cooperate in Congress’ impeachment inquiry because it was “unconstitutional,” “constitutionally illegitimate,” and “lack[ing] any legitimate constitutional foundation.”
As impeachment scholar Frank Bowman wrote after the letter was released, the Constitution is very clear that the president doesn’t get to demand how he is impeached. Article I, Section 2, Clause 5 of the Constitution says that the “House of Representatives … shall have the sole Power of Impeachment.” In previous judicial impeachments, the Supreme Court has ruled that the “sole power” language, as it pertains to the Senate’s power to try impeachments, means that the Senate has the power to set its own impeachment trial procedures and that legal challenges to those procedures are nonjusticiable. As Bowman notes, this implies that House impeachment procedures also cannot be decided by the courts:
Indeed, the Constitution’s explicit commitment that the House has the “sole power of impeachment” leads to the same conclusion: The procedures are, in essence, for the House to decide. … [T]he White House letter is neither more nor less than a list of invalid excuses to defy the legislative branch in its exercise of a power expressly granted by the Constitution.
For his part, Giuliani cited Cipollone’s letter in promising to defy Congress’ impeachment subpoena and the law. Congress will now have to consider how it might want to enforce its subpoena power, as Giuliani has challenged it to do.
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