On September 27, 2019, three House committees (Foreign Affairs, Intelligence, and Oversight and Reform) wrote to Secretary of State Mike Pompeo informing him that “[p]ursuant to the House of Representatives’ impeachment inquiry” the committee had scheduled the depositions of five State Department officials who “have direct knowledge of the subject matters of [that] inquiry.” The letter explained that the committees “are investigating the extent to which President Trump jeopardized national security by pressing Ukraine to interfere with our 2020 election and by withholding security assistance provided by Congress to help Ukraine counter Russian aggression.”

Of the five named officials, one (Kurt Volker) resigned the same day that the committees’ letter was sent. Another, Marie “Masha” Yovanovitch, was removed as U.S. ambassador to Ukraine earlier this year though she may remain at least technically a State Department employee. The other three (Deputy Assistant Secretary George Kent, Counselor T. Ulrich Brechbuhl, and Ambassador Gordon Sondland) still work at the State Department.

The committees informed Secretary Pompeo that “[t]he failure of any of these Department employees to appear for their scheduled depositions shall constitute evidence of obstruction of the House’s impeachment inquiry.” They also enclosed copies of the “House Deposition Rules,” which presumably consisted of the House rule adopted this Congress (Section 103(a) of House Resolution 6) authorizing each standing committee to take staff depositions and the implementing regulations promulgated by the Rules Committee.

Secretary Pompeo responded by letter on Tuesday and he is not happy. He accuses the committees of “an attempt to intimidate, bully, and treat improperly” the five current and former Department officials in question. He also complains that the committee’s statement regarding “evidence of obstruction” is “unfounded” and states there “is no legal basis for such a threat.” He also raises several legal and procedural issues regarding the scheduled depositions. These are as follows.

Are the committees merely requesting the voluntary appearances of these witnesses?

Pompeo argues that because the committees did not issue subpoenas, they are not utilizing compulsory process but simply requesting the voluntary appearance of the witnesses. However, the House rule provides that committee chairs “may order the taking of depositions, including pursuant to subpoena, by a member or counsel of such committee.” This implies that subpoenas are not necessary for conducting depositions (though of course that could refer only to voluntary depositions). Moreover, the standing House rules provide that each committee may “require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary.” Thus, it is arguable that the committees are empowered to require the attendance of witnesses without issuing a subpoena.

However, because it is the invariable practice of the House to issue subpoenas when a committee wishes to compel testimony or document production, it is curious that this was not done here. It seems that the committees may be trying to underscore that they are not relying on the ordinary criminal contempt process (which is effectively useless against the executive branch). Instead, the committees have declared that they will draw an adverse inference from the failure of the witnesses to appear and testify (or to produce documents). This point is made more explicit in the committee chairs’ public statement in response to Pompeo’s letter, in which they state they will infer “that any withheld documents and testimony would reveal information that corroborates the whistleblower complaint.”

This seems like a smart strategy for the House, but only up to a point. Ultimately, it is not enough for the House to draw an adverse inference; it must convince the Senate to do so. If all of the witnesses refuse to appear based upon Pompeo’s objections, it may be difficult to persuade the Senate to draw an adverse inference. On the other hand, if some of the State Department current and former employees (most likely those no longer under the Department’s control) appear and provide damaging testimony, while others fail to appear at all, the argument for drawing an adverse inference will be stronger.

In that respect, the House strategy may be working. Volker appears willing to testify on Thursday, and resigned last week in part because he reportedly felt that “he couldn’t be effective in mounting his own defense if he was still beholden to the administration’s supervision.” So the stage appears set for some information to come from the State Department Five.

It should also be noted that the House could, at least in theory, compel the attendance of witnesses in a different manner. In Barry v. U.S. ex rel. Cunningham, 279 U.S. 597 (1929), the Supreme Court upheld the Senate’s warrant of arrest to compel a witness to testify in an election case. The witness argued that this action was void because no subpoena had been previously served upon him. The Court rejected this argument, noting that “in exercising the power to judge elections … the Senate acts as a judicial tribunal, and the authority to require the attendance of witnesses is a necessary incident of the power to adjudge, in no wise inferior under like circumstances to that exercised by a court of justice.” Thus, like a court, the Senate “has power in the exercise of a sound discretion to issue a warrant of arrest without a previous subpoena, where there is good reason to believe that otherwise the witness will not be forthcoming.” The House’s “sole power of impeachment” is similarly a judicial function and would support the issuance of an arrest warrant in the exercise of its “sound discretion.”

Could the House be attempting to build a record for the issuance of an arrest warrant here? It seems unlikely that the House would attempt to arrest current State Department officials. But one could imagine it sending the Sergeant at Arms to bring in former officials, particularly if they are actually friendly witnesses who merely need the cover of compulsory process. If these witnesses do not wish to challenge the House’s exercise of its authority, it is doubtful that the State Department would have any basis for doing so.

Do agency lawyers have a constitutional right to participate in congressional depositions?

According to Secretary Pompeo, the answer is yes. He relies on an Office of Legal Counsel opinion from earlier this year, in which OLC concluded that excluding agency counsel from depositions “would impair the President’s constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch’s communications with Congress.” By contrast, the House regulations allow witnesses to “be accompanied at a deposition by personal, nongovernmental counsel to advise them of their rights,” but provide that “other persons, including counsel for government agencies, may not attend.”

Congressional and administration lawyers have long argued about this issue, and these disputes have been handled on a case by case basis. Sometimes agency lawyers have been allowed to attend depositions or interviews of agency employees, other times not. If there is no reason to believe they will be obstructive or have the effect of intimidating the witnesses, it seems reasonable to allow them to attend for the purpose of protecting government privileges or other interests. Unfortunately, given the administration’s not very veiled threats against the CIA whistleblower who triggered the Ukraine investigation, there seems to be good reason for excluding them in this case. The committee chairs also argue that Pompeo’s personal involvement in the matters they are investigating constitutes a conflict of interest and an additional reason why agency counsel should not be permitted to monitor the State Department witnesses while they testify.

OLC’s current position that it would be “unconstitutional” to exclude agency counsel from depositions seems far-fetched at best. No doubt executive branch lawyers prefer to be present when current or even former employees are interviewed or deposed by congressional investigators. (The House and Senate Counsel’s offices feel the same way when the FBI or other executive branch investigators want to interview congressional staff.) Constitutionalizing this preference, however, is wholly without legal support and in considerable tension with federal whistleblower laws. OLC’s attempt to extend this supposed principle to former employees is particularly bizarre. Whatever continuing obligations former government employees may have with regard to privileged information surely do not extend to requiring them to invite an agency lawyer along whenever they speak with Congress.

What’s more, even if OLC’s position were correct in the context of ordinary congressional oversight, it would make no sense in an impeachment inquiry into the president’s conduct. See Michael J. Gerhardt, The Federal Impeachment Process 115 (1996) (Allowing the president to “withhold information from Congress on the basis of an asserted privilege” would undercut the purpose of impeachment because “he could then hinder the only constitutionally authorized process by which Congress may hold him accountable for his conduct.”). For the president to claim a constitutional right to monitor the communications of potential adverse witnesses with Congress is blatantly inconsistent with the impeachment process.

Can the committees request documents directly from State Department officials?

Secretary Pompeo complains that it was improper for the committees to ask the State Department officials to produce certain documents because “[t]he requested records constitute the property of the Department of State and are subject to restrictions on the unauthorized disclosure of classified information and various Executive Branch privileges.” Since producing these documents without authorization could subject the officials to various civil and criminal penalties, he contends, by asking for them the committees have “engaged in an act of intimidation and an invitation to violate federal records laws.”

For the president to claim a constitutional right to monitor the communications of potential adverse witnesses with Congress is blatantly inconsistent with the impeachment process.

This seems a bit overwrought, though I have not seen the document requests in question. I am not aware of any prohibition on issuing a subpoena to a witness demanding the production of relevant documents in her custody or control, even though such documents may belong to an organization which could assert privileges with respect to them. And, of course, if Pompeo is correct in his assertion that the committees were merely requesting voluntary cooperation, his complaint is even more difficult to understand.

No doubt the current State Department officials are obligated by department regulations to clear any document production through the chain of command, and I do not think that the committees would have any authority to prevent them from doing so. Thus, if the Department orders the officials not to produce certain documents, the committees probably have no recourse against the officials themselves and would have to take the matter up with Pompeo. But it is not the committees’ job to protect the Department’s hierarchy.

The more interesting question is what happens if former Department officials have responsive documents. Presumably they should not have any classified documents (though, as we know, things happen). But if they have privileged documents (or, more precisely, documents the Department claims as privileged), it is not clear what happens. If they choose to follow the Department’s instructions, there is probably not much the committees could do about it as a practical matter (other than take it up with Pompeo). If they choose to produce the documents to Congress, on the other hand, the Department would have to seek a court order preventing them from doing so.

At the end of the day, the outcome of this dispute will probably turn on whether Volker and any of the other four individuals has a story that they want to tell to Congress. If so, Pompeo’s letter will be just so much bluster.


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