Secretary of State Mike Pompeo sent a blistering letter on Tuesday, telling the House of Representatives that he intended to block State Department employees from cooperating with the House’s impeachment inquiry because the House, in his view, was being overly aggressive in its investigative approach. He followed his letter with equally pugnacious comments to the press, telling reporters in Rome on Wednesday that he “won’t tolerate folks on Capitol Hill bullying and intimidating State Department employees. That’s unacceptable and it’s not something that I’m going to permit to happen.”
Setting aside the obvious and well-noted hypocrisy of Pompeo’s crocodile tears over congressional “bullying” given his approach to oversight on the Benghazi Select Committee, Pompeo’s letter sends an important signal about the Trump administration’s evolving approach to the impeachment inquiry.
It is important to remember that just a few short weeks ago, congressional Democrats and legal analysts were wringing their hands over the administration’s successful campaign to block testimony and document production in response to congressional subpoenas. Former White House Counsel Don McGahn and others have not faced questioning because the Trump administration is asserting they are “absolutely immune” from congressional testimony. The House Judiciary Committee is still fighting for documents cited in Special Counsel Robert Mueller’s report. A stalemate had emerged and the White House was winning.
But, the White House decision to turn over the whistleblower complaint and call transcript marked a stark departure from that approach. Coming on the heels of the House formally launching an impeachment inquiry, it felt as though the move to impeachment changed the administration’s calculus.
The result has been a disaster for President Donald Trump and several of his advisors. Thus, it should be no surprise that the Trump administration now seems to be reverting to its previous strategy of total obstruction based on maximalist interpretations of executive authority. Pompeo’s letter is the first example, but it will certainly not be the last.
As Mike Stern ably explains, Pompeo’s letter is based, at least in part, on legal objections to the House’s requests for testimony and documents. He complains about the form of the deposition requests, the barring of agency counsel at depositions, and requests for witnesses to produce documents directly to the House. These are technical objections that traditionally have been worked out in good faith between Congress and the executive branch through the so-called “accommodations process.” In return for longer deadlines and other concessions from Congress, past administrations would mobilize resources to provide documents and witnesses in an orderly fashion.
But Pompeo’s letter lacks even a token gesture to the accommodations process. There is no acknowledgment of Congress’ legitimate interests, no pledge to cooperate, no olive branch of compromise or negotiation. It is an aggressive assertion of technical and atmospheric objections that the House committees have fairly interpreted as a total rejection of their inquiry. Indeed, rather than offering to mobilize resources to support the House’s inquiry on mutually agreeable terms, there is speculation that Pompeo has been doing the opposite: searching for ways to enforce his policy of obstruction by punishing employees who do not fall in line. He appears to be taking a page out of Trump’s playbook–refusing to compromise in any way, refusing to recognize the fundamental system of checks and balances, and placing himself and his agency above the law.
Once announced, the House’s impeachment inquiry got off to a fast start. Speed has been its friend. The cascade of news and disclosures matches the severity of the moment, especially when contrasted with the trickle of news surrounding the Mueller investigation. Based on Pompeo’s letter, it looks like the administration recognizes that slowing things down is its best way to survive. It is going to try to use the “accommodations process” to sync up with witnesses, review documents before Congress sees them, and spin in the press.
The next question is what the House should do about it. If the first nine months of 2019 are any guide, the House cannot rely on heated rhetoric and angry letters to compel compliance. Moving to an impeachment inquiry may maximize its constitutional power, but doing so has not actually solved the House’s document-production and testimony problems.
The House committees first response has been to accuse Pompeo of obstructing, including interfering with witnesses. Moreover, they assert that they will draw adverse inferences from the perceived obstruction: If Pompeo won’t produce evidence in response to their inquiries, they will assume their allegations are correct. In other words, they are matching an executive branch power move with a power move of their own.
The House’s response could be a game-changer because it gives investigators a path forward in the face of obstruction. If they are willing to draw adverse inferences despite lacking all of the evidence, the administration’s blocking strategy isn’t the last word.
But it would be a shame if that’s were things ended. We should aspire to good, constructive oversight based on evidence. Moreover, Pompeo isn’t the only player here. No doubt there are many State Department employees who would like to speak to Congress and there are others who would commit resources to responding to document requests. A scorched earth impeachment process puts these people in the middle and could force them to balance their obligations to follow State Department rules against their oaths to the Constitution. Pompeo asserts that he is protecting State Department personnel from the House, but the best way to do that is to find an accommodation that doesn’t require them to pick obstruction or punishment. Indeed, early reports suggest Pompeo may have gone so far in that direction that the State Department inspector general is rushing to Capitol Hill to report potential violations of whistleblower laws that bar retribution against people for cooperating with Congress.
On the State Department side of the ledger, it would be far better if Pompeo reached out to the House and offered to cooperate–to provide witnesses on a negotiated timetable, to produce documents quickly and under terms that protect sensitive information or legitimate privileges.
As for the House, some flexibility on the terms of depositions and document productions could be appropriate, at least if it feels it can trust the accommodations are being met in good faith. And it should carefully consider how far it is willing to take its adverse inference strategy. If, as one would expect, there are witnesses and documents the House really needs to conduct its impeachment inquiry, it may need to resort to litigation. But if the House decides to sue, it should strongly consider changing the tactics it has used to date. It may be time to consider emergency litigation–seeking temporary restraining orders and preliminary injunctions–to shorten lawsuit timetables from months to days or weeks.
An emergency litigation posture would match the severity of the moment, would put the House back in the driver’s seat after the administration’s retreat to total obstruction tactics, and, ultimately would send the signal that the House will not take no for an answer. The stakes are too high to let Pompeo’s response to the inquiry be the last word.