Did House Democrats “Choose Not To” Call High-Level Trump Administration Officials in Their Impeachment Inquiry?
It’s not that simple.
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Speaking with Fox News’ Chris Wallace on Sunday, Sen. Lindsey Graham argued against calling additional witnesses to testify in the upcoming Senate trial over President Trump’s impeachment. “I'm going to vote against calling the four witnesses requested by Senator Schumer,” Graham said. “They're all covered by executive privilege. They're part of the national security team of the president. They could have been called in the House. They chose not to. Apparently they don't need them to make their case.”
Graham made a similar point about Mike Pompeo, Russell Vought, Mick Mulvaney, and John Bolton earlier in the interview, saying “all of these witnesses were available to the House.”
But were they? It’s complicated.
On October 4, Reps. Adam Schiff, Eliot Engel, and the late Elijah Cummings issued a subpoena to Mick Mulvaney compelling him to turn over documents related to the ongoing impeachment inquiry. Trump’s acting chief of staff refused to comply. On November 5, Reps. Eliot Engel, Adam Schiff, and Carolyn Maloney formally requested he appear before their respective committees on November 8 to testify. Mulvaney did not show up, with his lawyers saying Mulvaney would “rely on the direction of the president … in not appearing for the relevant deposition.”
On October 25, Engel, Schiff, and Maloney subpoenaed Russell Vought, acting director of the Office of Management and Budget, to appear at a deposition in early November. Vought had declined to voluntarily show up before the committees earlier in October, citing an October 8 letter from White House counsel Pat Cipollone decrying the entire impeachment procedure. Vought defied the subpoenas as well.
The House Intelligence and Judiciary committees subpoenaed Deputy National Security Advisor Charles Kupperman to appear before them as part of the impeachment inquiry, only for the White House to invoke “constitutional immunity” in blocking him. Unsure what to do, Kupperman filed a lawsuit asking a judge to determine whether the legislative or executive branch’s desires should prevail. Former National Security Advisor John Bolton did not show up for his scheduled voluntary testimony, but signaled he would also abide by the judge’s decision in the case brought by Kupperman, who had been his deputy. Rather than face a lengthy court battle, however, House Democrats withdrew their subpoena of Kupperman and never issued one to Bolton, leading a judge to dismiss the case in late December. (A similar case involving former White House counsel Don McGahn remains ongoing.)
House Democrats never asked Secretary of State Mike Pompeo to testify in the impeachment inquiry, but they did issue a subpoena to him demanding the State Department produce materials relevant to the impeachment inquiry. Pompeo did not take too kindly to what he deemed “intimidation” and “bullying” from the legislative branch, writing back, “I will not tolerate such tactics, and I will use all means at my disposal to prevent and expose any attempts to intimidate the dedicated professionals whom I am proud to lead and serve alongside at the Department of State.” Several State Department employees—Kurt Volker, Marie Yovanovitch, George Kent, David Holmes, William Taylor, Gordon Sondland—ended up testifying in the impeachment inquiry anyways.
Given all of this, the truthfulness of Graham’s claim—that House Democrats “chose not to” call top impeachment witnesses—varies from official to official. (We told you it was complicated.)
The senator from South Carolina would be correct in saying Democrats “chose not to” seek testimony from Mike Pompeo. But they did make an effort to hear from Mulvaney, Vought, Kupperman, and Bolton—the Trump White House invoked executive privilege and constitutional immunity to block them from testifying. (Jonah Goldberg has a piece exploring the history of executive privilege and how it pertains to impeachment here.)
That being said, House Democrats certainly could have fought harder to extract testimony from the White House. Because the 2020 election is less than a year away, Speaker Nancy Pelosi opted to prioritize the speed of the impeachment process over its thoroughness; had she been willing to wait, a federal judge very well might have determined Kupperman and Bolton were obliged to testify.
But the White House would almost assuredly have challenged such a ruling, extending the inquiry well into the summer or beyond. So while Graham can argue the House should have slowed down and pursued additional legal channels to capture all relevant information, House Democrats can argue the Trump administration’s stonewalling, so close to an election, made that option untenable.
Photograph of Lindsey Graham by Mark Wilson/Getty Images.
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Y'all need to get your web monkeys to build in a time-limited edit function for your commenters. Please.
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This is right as far as it goes in explaining the history and the procedural complications. But it's missing the big point as to why, overall, the Dems are ENTIRELY WRONG.
Executive privilege, like most other evidentiary privileges, attaches not to people, but to particular communications, and indeed, even to PARTS of particular communications. The participants' status may be critically important to deciding whether there's any chance of the privilege being successfully asserted; a cabinet officer's discussions with the POTUS are more likely to qualify than, say, the fourth deputy assistant undersecretary's discussions with a student intern volunteering at the State Department. But much of what even a cabinet secretary and a POTUS say to one another doesn't qualify, because, for example, it's simply relating something told to one of them by someone else. If the question to John Bolton is, "Did you tell Trump what the Ukrainian ambassador had said to you the previous night?" then the answer to that question may be nonprivileged, even though the remainder of Bolton's and Trump's conversation ABOUT Bolton's communication with the ambassador IS privileged.
Moreover, executive privilege, like other evidentiary privileges, is only a QUALIFIED privilege and not an absolute one. In the seminal and still most important SCOTUS decision on executive privilege, Nixon's conversations with Haldeman and other senior WH staff, as recorded on the famous WH tapes, about what instructions were to be given to the CIA regarding what it should say to the FBI about the Watergate break-ins actually qualified for executive privilege, because these were indeed very high-level officials discussing matters of official policy in secret — but the SCOTUS held that Special Prosecutor Jaworski had made a sufficient showing to OVERCOME the privilege.
And under the Nixon tapes case, it's clearly the Judicial Branch of government that makes the call as to whether and when an otherwise valid assertion of executive privilege may be overcome.
That means — and this is the key to analyzing the whole set of arguments by the Dems — that in order to properly test the applicability of executive privilege to the potential testimony of someone like John Bolton, then as a practical matter, there has to be a decision-maker of the Judicial Branch, meaning (probably) a federal district judge, or perhaps a magistrate or special —master appointed by said judge — to make real-time on-the-spot rulings on the privilege assertion as to each such communication. In exceptional cases, rather than comply with the district judge's (or his/her proxy's decision), the Executive may choose to seek immediate appellate remedies via mandamus, probably to the D.C. Circuit, but potentially to the SCOTUS.
Is all that cumbersome? Yes, very. Could the federal courts, in an appropriate case, expedite matters sufficiently to get a meaningful and sufficiently final court decision even with the 2020 elections on the horizon? Well, of course they can. Recall that the entirety of the Bush v. Gore litigation, which involved not just the SCOTUS but also the Eleventh Circuit and the Florida Supreme Court, was resolved within a matter of weeks between Nov. 7, 2000 (election day) and Dec. 12, 2000 (the day of the final SCOTUS decision). The Dems' whining excuses about indefinite court delays are therefore horsesh!t: Either they'd get the expedited reviews they seek, or else they couldn't have shown circumstances sufficient to persuade the courts to grant such expediting, but the idea that no timely judicial resolution was possible is just a bald-faced lie.
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