Kerry W. Kircher: Trump’s unprecedented fight to withhold information
House leaders have left a long list of subpoenas for dead: Acting White House Chief of Staff Mick Mulvaney refused to testify about his knowledge of Trump’s decision to withhold military aid to Ukraine. So did Robert Blair, a top Mulvaney aide who listened to the July 25 call in which Trump asked Ukrainian President Volodymyr Zelensky for the “favor” of announcing a criminal investigation into a domestic political rival, Joe Biden; John Eisenberg, a National Security Council lawyer who put a summary of the call on a top-secret computer server; Michael Ellis, Eisenberg’s deputy; State Department counselor T. Ulrich Brechbuhl, who was also on the July 25 call; Brian McCormack, former chief of staff to Energy Secretary Rick Perry; Russell T. Vought, acting director of the Office of Management and Budget; and a White House budget official named Michael Duffey. The House also requested the testimony of former Deputy National Security Adviser Charles Kupperman, but withdrew the subpoena on the curious rationale that Kupperman’s lawsuit seeking clarification on his subpoena obligations could slow down the impeachment investigation.
Subpoenas for documents also remain unanswered and unenforced. Defense Secretary Mark T. Esper, Secretary of State Mike Pompeo, Perry, and Trump’s lawyer Rudy Giuliani have all rebuffed requests. Meanwhile, none of these witnesses has been subpoenaed to testify before the House Intelligence Committee—nor has former National Security Adviser John Bolton—despite their deep knowledge of the president’s role in the Ukraine affair.
There’s no reason House Democrats could not have pursued lawsuits to compel compliance with all of the subpoenas while at the same time maintaining the brisk pace of the impeachment inquiry thus far. Courts can move quickly—but only if asked.
Democrats might be betting that widespread defiance of subpoenas at the president’s behest bolsters the case for an article of impeachment for obstruction of justice. Another concern might be that, even if courts rule swiftly and consistently that former and current employees lack blanket immunity from testifying, some might still show up and refuse to speak on the basis of executive privilege—leaving Congress empty-handed despite protracted litigation.
Nevertheless, the House should fight hard for access to the full story about the president’s Ukraine shenanigans, and not let the executive branch win by default. Some current and former executive-branch officials, including Ambassador Gordon Sondland and former National Security Counsel expert Fiona Hill, have testified in spite of White House efforts to stonewall Congress. Others, including former Ambassador Marie Yovanovitch, have done so despite intimidating tweets from the president of the United States. Aggressive litigation on all subpoenas would persuade more witnesses to do the same, while showing support for the courageous people who have already complied.