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Testimony shows limits of executive privilege in impeachment inquiry

President Donald Trump stands during a Presidential Medal

President Donald Trump stands during a Presidential Medal of Freedom ceremony for auto racing great Roger Penske in the Oval Office of the White House on Thursday in Washington.  Credit: AP/Alex Brandon

WASHINGTON — President Donald Trump’s refusal to cooperate in the House Democrats’ impeachment inquiry hasn’t slowed down the fast-moving probe. The investigation has picked up speed and widened in scope as a succession of State Department and White House officials have come forward with testimony.

The willingness of those officials to testify, over Trump’s objections, has undercut the president’s strategy of stymying investigations by denying access to documents and key administration officials. While other congressional oversight investigations into Trump’s finances and political dealings have been stalled for months as the president’s legal team argues that executive privilege prevents political appointees from coming forward, the argument has not been enough to keep longtime civil servants from complying with the House inquiry.

Legal analysts said the current and former officials who have testified have exposed the limits of the White House’s ability to corral officials behind Trump’s blanket defiance of congressional subpoenas. The president can threaten to fire political appointees, but career civil servants such as those at the State Department are afforded some level of protection from retaliatory action, said legal analysts.

“We’re seeing the White House, basically, having it’s bluff called,” said Gregory Brower, a former director for the FBI’s Office of Congressional Affairs, and former deputy general counsel for the bureau, now a lawyer in private practice.

Brower said the executive privilege argument has worked in keeping political appointees such as former White House Counsel Don McGahn from agreeing to testify in part because “the political appointees are afraid to lose their job or afraid to fall out of favor with the White House or the Republican establishment. But your typical employee who does have Civil Service protection against whistleblower reprisal or other improper actions, and just feels duty bound to tell the truth, they’re cooperating.”

The White House has contended, among other things, that the inquiry is not legitimate because the full House hasn't voted for it and that Trump is being denied due process.

Since White House Counsel Pat Cipollone issued a letter to House Democratic leaders on Oct. 9 declaring the White House would not cooperate with the inquiry, a steady flow of high-profile witnesses have either voluntarily, or under the order of a subpoena, testified before lawmakers, behind closed doors, about their knowledge of Trump’s push to have Ukraine investigate a Democratic rival, Joe Biden, ahead of the 2020 election.

Those who have testified include former White House foreign affairs adviser Fiona Hill, European Union Ambassador Gordon Sundland, former Ambassador to Ukraine Marie L. Yovanovitch, Deputy Secretary of State George Kent, and Michael McKinley, a former aide to Secretary of State Mike Pompeo.

As other Trump loyalists have refused to comply with congressional subpoenas — including Trump’s personal attorney Rudy Giuliani and Secretary of State Mike Pompeo — the Democrats leading the probe contend their defiance only helps bolster the case for an impeachment charge against Trump on obstruction.

“We will consider defiance of subpoenas as evidence of the President’s effort to obstruct the impeachment inquiry, and we may also use that obstruction as additional evidence of the wrongfulness of the President’s underlying misconduct,” House Intelligence Committee Chairman Adam Schiff (D-California), said in a letter updating the House Democratic Caucus on the inquiry last week.

Some Democrats have argued that whether or not Giuliani, Pompeo and other Trump associates comply with the subpoenas, the congressional committees leading the probe have sufficient evidence to build a case for impeachment. They point to the memo of a transcript released by the White House of Trump’s July 24 call with Ukrainian President Volodymyr Zelensky. During the call, Trump after discussing U.S. military aid to Ukraine, asks Zelensky for a “favor” — to investigate a debunked theory about the Democratic National Committee’s hacked emails, and to investigate former Vice President Joe Biden and his son Hunter.

Rep. Jim Himes (D-Connecticut), a member of the House Intelligence Committee, told CBS’s “Face the Nation” he believed the impeachment inquiry could proceed without the testimony of Giuliani and others.

“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 … it comes from the administration. It comes from the chief of staff. It comes from the transcript. So we have a lot of what we need,” Himes said.

Other House Democrats have advocated for holding those who do not comply with the inquiry subpoenas in contempt of Congress, but legal analysts say that maneuver could simply prolong the inquiry that Democratic leaders had initially wanted to wrap up by the time Congress recesses for Thanksgiving.

Jens David Ohlin, vice dean at Cornell Law School, said that “although Congress can go to federal court to ask a judge to enforce a subpoena that is being ignored, that move takes time, and in the end, the House may simply decide to use the White House refusal as another justification for impeachment.”

“The House doesn’t want to get bogged down in a lengthy inquiry, so I would expect the impeachment process in the House to last a matter of weeks, not months, and it will conclude with the case being sent to the Senate for trial,” Ohlin said. “The reason the House wants to move quickly is because the essential facts are not much in doubt. Trump said what he said during the phone call with the Ukrainian president, and the Democrats consider Trump’s behavior on the call to be a betrayal of national trust for personal benefit. You don’t need months of hearings to read a transcript or a phone call. After years of debate over whether Trump is fit or unfit for office, we are bearing down on decision time.”

Trump, and congressional Republicans, have argued the president’s legal team should have the right to cross-examine witnesses, call witnesses, and present evidence during the inquiry stage, but legal experts note that an impeachment inquiry is a political proceeding, not a criminal proceeding, and as such there is no Constitutional requirement for the House to open its inquiry to the president’s legal team before a possible impeachment vote.

“The Constitution says the House has the sole power to impeach so that already tells us a lot,” said Michael J. Gerhardt, author of “Impeachment: What Everyone Needs to Know.” “The president has no role in this process. He doesn’t get to dictate to the House anything, nor does anybody else that is subject to impeachment.”

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