white house

White House officials spurn demand to testify in impeachment probe

Robert Blair

Four senior White House officials refused to testify Monday to House impeachment investigators, a sign Democrats have exhausted their best leads for evidence against President Donald Trump.

Those witnesses, including the White House’s top national security lawyer John Eisenberg, blew off subpoenas to testify, underscoring the likelihood Democrats are already sitting on the evidence they’ll have for impeachment as they move toward public hearings. And many of them say it’s more than enough.

All that remains before those hearings begin is a cluster of high-profile witnesses closely connected to Trump who seem likelier to battle Congress to a stalemate than submit to questioning that might boost Democrats’ impeachment inquiry.

National Security Council lawyer Michael Ellis, national security aide Robert Blair and budget official Brian McCormack also refused to appear for their scheduled depositions Monday, a major victory for a White House that has largely failed to prevent senior officials from across the administration from showing up.

Testimony in recent weeks has revealed Eisenberg to be at the center of the events driving Democrats' impeachment inquiry. A handful of witnesses — including Trump’s top Russia and Ukraine aides on the NSC — told impeachment investigators they raised concerns to Eisenberg about Trump’s posture toward Ukraine, most notably his efforts to pressure the country’s leaders to investigate his political rivals.

As he resists Congress' subpoena, Eisenberg is being represented by attorney William Burck, who also handled legal matters for former White House counsel Don McGahn as well as former senior Trump advisers Steve Bannon and Reince Priebus, in their testimony to former special counsel Robert Mueller. In a letter to lawmakers on Monday, Burck said the subpoena of Eisenberg provided "insufficient and unreasonable" notice to prepare and said his client could not defy Trump's order against testifying anyway.

However, Burck also noted that questions about whether a congressional subpoena can force senior White House aides to testify are pending before a federal judge — a matter brought by another impeachment inquiry target, former deputy national security adviser Charles Kupperman. Burck said Eisenberg would abide by the ruling reached in the final resolution of that case.

In support of Eisenberg's position, the Justice Department issued a legal opinion declaring he is "absolutely immune" from testifying, even in an impeachment inquiry, and that allowing him to talk to Congress could jeopardize the separation of powers. "This testimonial immunity applies in an impeachment inquiry just as it applies in a legislative oversight inquiry," Assistant Attorney General Steven Engel wrote, adding, "[T]he commencement of an impeachment inquiry only heightens the need to safeguard the separation of powers."

Ellis' attorney, Paul Butler, similarly rejected the demands the House issued in its subpoena, but he added Ellis would consider complying if the House relented on its rules forbidding agency lawyers from sitting in on the depositions to monitor for questions of privilege — a proposition unlikely to get off the ground in the House, which responded that limits on agency lawyers were intended to prevent the targets of the investigation from learning the details of the House's inquiries.

In fact, the resistance by the White House to further testimony may feed Democrats' consideration of an article of impeachment against Trump based on obstruction of Congress.

"We may infer by the White House obstruction here that their testimony would be further incriminating of the president," said Rep. Adam Schiff (D-Calif.), who is leading the impeachment probe. "I will say this. It's quite obvious and we fully expected this. We have seen a series of shifting, ever-changing rationales for this campaign of obstruction."

Schiff added he wants to question Eisenberg about the decision to stash a transcript of Trump's July 25 call with Ukrainian President Volodymyr Zelensky — the heart of Democrats' impeachment probe — on a highly classified server meant for code word-level intelligence. "I think we can infer that the reason they don’t want the public to hear from Mr. Eisenberg is that it would tend to corroborate allegations against the president. That's the very reason we want to bring him in," Schiff said.

Though the White House has largely stood by as senior national security and State Department officials have defied orders and provided damaging, closed-door testimony against Trump, this week those in Trump’s inner circle closed ranks around their boss and left Democrats looking ahead to the highly anticipated public phase of impeachment, which could begin as soon as next week.

“I think that the following week is likely to be when we will start having hearings,” Rep. Jackie Speier (D-Calif.), a member of the House Intelligence Committee, said Sunday on CBS’ “Face the Nation.”

“I think we've had a lot of star witnesses to tell you the truth,” Speier added.

Democratic investigators believe they already have a persuasive, thoroughly supported case against the president. They say documents and testimony portray a campaign by Trump, with the aid of his personal lawyer Rudy Giuliani, to pressure Zelensky — who was elected to his post in April — to open two investigations into Trump’s political rivals.

That campaign was allegedly aided by threats to withhold military aid and refuse a White House visit from Zelensky, even as his country is desperately beating back Russian aggression in its Donbass region. In short, Democrats say they’re convinced Trump leveraged the unmatched power of his office to squeeze an ally to interfere in the 2020 election on his behalf.

The sudden drought of testimony hasn’t fazed Democrats, who believe the depositions they’ve conducted with a dozen current and former Trump administration figures — including two current members of the National Security Council — so far provide more than enough evidence. That’s because Democrats also believe their best evidence came at the outset: the transcript of a July 25 call between Trump and Zelensky, released by the White House in September, that appears to confirm the most damaging elements of the testimony they have received.

“One of the shocking things about this investigation is that all of the facts that are out there that support this notion that military aid was withheld that a White House meeting was withheld — you know, it comes from the administration,” Rep. Jim Himes (D-Conn.), an Intelligence Committee member, said Sunday on CBS’ “Face the Nation.”

Trump has maintained that his phone call with Zelensky was “perfect.” On Twitter Monday morning, Trump said there was “no reason to call witnesses to analyze my words and meaning.”

Impeachment investigators are likely to spend this week demanding testimony from that last group of recalcitrant witnesses, including Eisenberg and former national security adviser John Bolton, who was cited by a slew of officials as a witness to some of the most crucial events in the Ukraine timeline.

Though investigators don’t expect these officials to appear, they’re building a paper trail to show they made every possible attempt to secure testimony, and haven’t ruled out going to court to enforce their subpoenas — a process that could take weeks or months.

On Monday, impeachment investigators revealed a letter to Blair and Ellis in which they slammed the officials’ rationale for refusing to testify.

“This argument has no merit,” Democrats replied in a letter signed by Schiff, Eliot Engel and Carolyn Maloney, the leaders of the impeachment probe. The three lawmakers noted that acting White House chief of staff Mick Mulvaney and Secretary of State Mike Pompeo — both former Republican members of Congress — supported identical deposition procedures when they served in the House and conducted investigations of the Obama White House.

Democrats also began to release the transcripts of their closed-door depositions this week, a sign the fact-finding phase of their probe is nearing an end.

Caitlin Oprysko contributed reporting for this report.