On Oct. 8, 2019, the White House counsel, Pat Cipollone, sent a highly controversial letter to the speaker of the House and several committee chairs, contending that the House’s impeachment inquiry is “constitutionally invalid and a violation of due process.” Accordingly, the letter informs the House that “President Trump and his Administration cannot participate” in the inquiry. It suggests, without quite saying so, that current and possibly former administration officials would be instructed not to cooperate with the House’s investigation, and it asserts that such officials cannot be punished for obeying instructions “not to appear or not to provide particular testimony before Congress based on privileges and immunities of the Executive Branch.”
In little more than two weeks, however, some “nine key figures have testified” before Congress, apparently unconcerned by the Oct. 8 letter. These include mostly career State Department and Pentagon officials, a former White House staffer (Fiona Hill) and a current political appointee (Ambassador to the EU Gordon Sondland). Several other administration officials either have agreed to testify or are considering testifying in upcoming days. And one former White House staffer (Charles Kupperman) has taken the extraordinary step of interpleading Congress and the administration in federal court to determine whether he should comply with a congressional subpoena or the president’s instructions not to appear in response to the subpoena.
These are presumably not the results Cipollone expected when he sent his letter, but in retrospect they seem fairly predictable. To begin with, the administration has little leverage over many of the witnesses in question. This is most obvious with respect to former employees. As a practical matter, it is not clear what the administration could do to these individuals even if there were a plausible basis for believing they had a legal duty not to cooperate with Congress. Moreover, it does not appear that the administration is even claiming that such a general duty exists.
We can see this by looking at discussions between the White House counsel’s office and specific witnesses since the Oct. 8 letter was sent. On Friday, Cipollone wrote to the lawyer for Kupperman, the former assistant to the president and deputy national security adviser, informing him that Kupperman was “absolutely immune from compelled congressional testimony” based on his status as a former senior adviser to the president and further conveyed the president’s directive that Kupperman not appear in response to a congressional subpoena to testify. (On Monday, Kupperman did not appear for that testimony as the House subpoena demanded.) This position on absolute immunity is consistent with long-standing, if legally dubious, executive branch policy, but it applies only to senior White House advisers. There is nothing in Cipollone’s Oct. 25 letter to suggest that Kupperman is prohibited from testifying because the House inquiry is invalid or on any other ground that would be broadly applicable to administration officials.
Similarly, when the White House counsel’s office wrote on Oct. 14 to the lawyer for Fiona Hill, a former staffer for the National Security Council, it emphasized Hill’s “continuing obligation not to reveal classified information or information subject to executive privilege,” but it did not direct Hill to refuse to appear or testify regarding nonprivileged matters. The letter does mention the White House’s position that the impeachment inquiry is invalid, but only in the context of responding to Hill’s counsel’s suggestion that otherwise valid executive privilege claims may fail in the context of impeachment. What’s more, the letter from Hill’s counsel on Oct. 13 to the White House counsel refers to a phone call between the two sides, but the issues raised on the call that the letter discusses concern, once again, only the scope of privileged information.
Some of the president’s allies have suggested the administration should have brought injunctive actions to prevent current and former administration officials from testifying. But this overlooks the distinction between the administration’s claim that these officials are not obligated to testify (because of the alleged invalidity of the impeachment inquiry) and the very different claim that they have a duty not to testify. It is not apparent the administration is even making the latter claim, much less that it wishes to test it in court.
One might think the administration would at least be able to prevent current executive branch employees from cooperating with Congress. No doubt Cipollone expected that his Oct. 8 letter would be understood as a directive that such employees should not testify before Congress in connection with the impeachment inquiry. This message, however, is not necessarily being conveyed to witnesses as clearly as he may have hoped.
For example, on Oct. 22, the deputy secretary of defense wrote to counsel for Laura Cooper, a career Pentagon official who currently serves as deputy assistant secretary of defense for Russia, Ukraine, and Eurasia, regarding a congressional request that Cooper appear for a deposition. The letter puts as much distance as possible between the Defense Department and the White House, emphasizing the former’s view that “the customary process of oversight and accommodation has historically served the interests of congressional oversight committees and the Department well.” It then states the following:
This letter informs you and Ms. Cooper of the Administration-wide direction that Executive Branch personnel “cannot participate in [the impeachment] inquiry under these circumstances.” [citing the Oct. 8 letter] In the event that the Committees issue a subpoena to compel Ms. Cooper’s appearance, you should be aware that the Supreme Court has held, in United States v. Rumely, 345 U.S. 41 (1953), that a person cannot be sanctioned for refusing to comply with a congressional subpoena unauthorized by House Rule or Resolution.
Essentially this paragraph says (1) there is a general directive (not from us) against participating in the impeachment inquiry; (2) this directive applies to voluntary cooperation but may or may not apply if a subpoena is issued; and (3) in the event Cooper receives a subpoena, she (probably) cannot be prosecuted if she chooses not to appear, at least if the White House turns out to be correct that the impeachment inquiry has not been properly authorized. The letter does not say that Cooper is forbidden from appearing in response to a subpoena or that she will suffer any consequences if she chooses to do so. It is hardly surprising that this halfhearted effort failed to dissuade Cooper from testifying when in fact she was subpoenaed.
Had the Oct. 8 letter taken a less extreme and more customary position toward congressional inquiries by offering to engage in a process of negotiation and accommodation, many of the witnesses might have been willing to wait until the administration and the House had worked out a protocol for depositions that protected the vital interests of both sides. By seeking to blow up the entire process, however, Cipollone left each witness on his or her own. And each witness who decides to cooperate puts more pressure on other witnesses to do the same, creating a snowball effect to the benefit of the House and the detriment of the administration.
Even though the administration has not attempted to litigate the position set forth in the Oct. 8 letter, the letter has still hurt the administration in court. In opposing the House Judiciary Committee’s efforts to obtain access to grand jury materials underlying the Mueller report, the Justice Department argued that the committee could obtain much of the information it sought through the negotiation and accommodation process. Chief Judge Howell, in an opinion issued on Oct. 25, rejected these arguments, saying that they “smack of farce.” Citing Cipollone’s Oct. 8 letter, the court found “the reality is that DOJ and the White House have been openly stonewalling the House’s efforts to get information by subpoena and by agreement, and the White House has flatly stated that the Administration will not cooperate with congressional requests for information.”
Now the administration may have to defend the letter more directly due to Kupperman’s turn to the courthouse. Facing a conflict between a congressional subpoena to testify and a presidential directive not to do so, Kupperman has filed suit against the House and the president, asking the court to issue a declaratory judgment as to whether he is obligated to comply with the subpoena or with the presidential directive. (I suggested back in March that witnesses in this situation should consider this option of turning to the courts.)
Kupperman’s suit asks the court to rule on two issues. The first is whether he is absolutely immune from testimonial compulsion by Congress as asserted in Cipollone’s Oct. 25 letter directing him not to testify. This is essentially the same legal issue that is presented in the House’s lawsuit against former White House counsel Don McGahn, which is scheduled for oral argument this week. In the McGahn case, the Justice Department is arguing that the House’s claims are nonjusticiable, in part because the court should defer to the traditional process of negotiation and accommodation between the political branches. Again, however, the Oct. 8 letter will make it difficult for the Justice Department to sustain that argument; the White House has essentially ruled out any accommodation with the impeachment inquiry.
How the courts rule on the immunity issue in the McGahn and Kupperman cases will affect other potential witnesses who have served in senior White House positions. Chief among these is John Bolton, the former national security adviser and Kupperman’s old boss, who could be a central witness in the impeachment inquiry. Kupperman’s lawyers (Chuck Cooper and Michael Kirk) also represent Bolton, and it is reasonable to assume that they are following the same legal strategy.
The second issue raised in Kupperman’s lawsuit is whether the House subpoena requiring him to appear and testify was properly authorized under House rules. This is essentially the same legal issue raised by the Oct. 8 letter, although Kupperman’s lawyers present it in a more nuanced way (and without the political bombast). It will be interesting to see what position the congressional and executive branch defendants take with respect to the justiciability of this issue. The House may argue that the court need not rule on this issue because a potential witness is not entitled to an advisory ruling on the validity of a subpoena, particularly when he has no personal objection to testifying. The Justice Department, conversely, might be tempted to argue that the issue is justiciable (particularly if it thinks the judge is sympathetic), but this would almost certainly be in tension with the positions it has taken in other cases.
Kupperman’s objective (and presumably Bolton’s) is somewhat unclear. He presents his position as entirely neutral, simply seeking to comply with the law as the court determines it. Perhaps this is the case. Perhaps, on the other hand, he really wishes to testify but feels he needs the court’s permission before doing so.
It is also possible this lawsuit is designed to help the administration by providing it with legal cover while the matter is pending, particularly with regard to the issue of the validity of the subpoena (which would affect all witnesses, not just those who served in senior White House positions). The administration could use the pending litigation to discourage witnesses from testifying until there is a final court ruling, which likely will take far longer than the expected time frame of the impeachment inquiry.
Whatever his intent, Kupperman’s lawsuit probably benefits the administration in the short term. Given how badly things have gone since Cipollone sent his Oct. 8 letter, the lawsuit can scarcely make it worse.