[We’re headed for a separation of powers showdown between
Congress and the president that will ultimately end up in the Supreme
Court. ] [[link removed]]

TRUMP’S ORDER TO DEFY SUBPOENAS IS ITSELF GROUNDS FOR IMPEACHMENT
 
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Marjorie Cohn
November 8, 2019
Truthout
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_ We’re headed for a separation of powers showdown between Congress
and the president that will ultimately end up in the Supreme Court. _

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The Constitution gives Congress the “sole Power of Impeachment.”
Yet President Donald Trump has ordered all of his current and former
senior advisers to defy congressional subpoenas
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to testify in the impeachment inquiry. Trump is claiming the
subpoenaed witnesses have “absolute immunity” against civil or
criminal liability for refusal to provide testimony. However,
“absolute immunity” is a creation of the Department of Justice’s
Office of Legal Counsel. No court, statute or constitution has ever
recognized it.

Some subpoenaed witnesses have obeyed Trump’s command and refused to
testify. But others have defied him and testified before the
committees of the House of Representatives gathering evidence during
the impeachment process.

The committees are investigating a July 25, 2019, phone call between
Trump and Ukra
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President
[[link removed]]Volodymyr
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Zelensky
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In that call, Trump made $400 million in military aid, Javelin
missiles and a meeting between the two presidents all contingent on
Zelensky investigating the 2016 hacking of the Democratic National
Committee and digging up dirt on Joe Biden and his son, Hunter.

This quid pro quo, which several witnesses have already documented,
could provide the basis for an article of impeachment for abuse of
power by Trump. The cover-up of the call, which was attempted by
moving the records of it to a secret server, could be the foundation
for a second article of impeachment for obstruction of justice. And
the presidential orders to witnesses to disobey subpoenas to testify
in the impeachment inquiry could constitute a third article of
impeachment for obstruction of the impeachment inquiry
[[link removed]].

The Constitutionality of Trump’s Refusal Order Is Being Tested in
the Courts

On October 25, Charles Kupperman, deputy to former national security
adviser John Bolton, was subpoenaed to testify before the House
Permanent Select Committee on Intelligence (HPSCI). But the same day,
Kupperman filed a lawsuit
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against the House of Representatives; Trump; Speaker of the House
Nancy Pelosi; Adam Schiff, Chairman of the HPSCI; Eliot Engel,
Chairman of the House Committee on Foreign Affairs; and Carolyn
Maloney, Acting Chair of the House Committee on Oversight and Reform.

However, “absolute immunity” is a creation of the Department of
Justice’s Office of Legal Counsel. No court, statute or constitution
has ever recognized it.

In his complaint, Kupperman asked the U.S. District Court for the D.C.
Circuit to resolve the conflict between the legislative and executive
branches and decide whether he must testify.

On October 26, Schiff, Engel and Maloney sent a letter to
Kupperman’s lawyers
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stating that the subpoena was still in force and the committees would
consider Kupperman’s “defiance of a congressional subpoena as
additional evidence of the President’s obstruction of the House’s
impeachment inquiry.” Such defiance, they wrote, “may also cause
the Committees to draw an adverse inference against the President,
including” that Kupperman’s “testimony would have corroborated
other evidence . . . showing that the President abused the power of
his office by attempting to press another nation to assist his own
personal political interests, and not the national interest.”

Moreover, the three committee chairs noted
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If such an abuse of authority by the President to muzzle current and
former officials from disclosing to Congress evidence of his own
misconduct were to stand, it would inflict obvious and grave damage to
the House’s capacity to carry out its core Article I functions under
the Constitution, including its impeachment inquiry into the
President’s actions. This would fundamentally alter the separation
of powers that forms the bedrock of American democracy.

On November 6, concerned about the delay Kupperman’s lawsuit would
cause, the House of Representatives withdrew the subpoena
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The House suggested that Kupperman abide by the decision in a pending
lawsuit against former White House counsel Don McGahn. The McGahn
litigation will, in all likelihood, resolve Kupperman’s dilemma
about whether he is legally bound to testify.

The same legal issues Kupperman raised are at issue in a suit filed by
the House Judiciary Committee
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to enforce its April 22 subpoena of McGahn to testify before Congress
about efforts by Trump to obstruct Special Counsel Robert Mueller’s
Russia investigation. In its complaint
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the Judiciary Committee said McGahn was “the most important witness,
other than the president, to the key events” that could form the
basis for obstruction of justice by Trump. McGahn told Mueller that
Trump ordered him to fire Mueller. When McGahn threatened to resign,
Trump backed down. After Trump’s firing order became public, Trump
tried to get McGahn to falsify evidence and deny it had happened.

The presidential orders to witnesses to disobey subpoenas to testify
in the impeachment inquiry could constitute a third article of
impeachment.

Citing the Office of Legal Counsel’s position that a sitting
president cannot be indicted, Mueller did not conclude whether Trump
committed obstruction of justice, although he set forth 10 possible
grounds for obstruction. The Mueller report said
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that if the Special Counsel’s office “had confidence after a
thorough investigation of the facts that the President clearly did not
commit obstruction of justice, [it] would so state.” Mueller left it
to Congress to address Trump’s obstruction of justice through the
impeachment process, stating that the “Constitution requires a
process other than the criminal justice system to formally accuse a
President of wrongdoing.”

During the October 31 oral argument in the McGahn case, U.S. District
Judge Ketanji Brown Jackson appeared highly skeptical
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the White House’s claim that current and former top presidential
advisers have absolute immunity from congressional subpoenas. Jackson
said she would issue a ruling as early as possible.

“Absolute Immunity” Is Not Supported by the Constitution, Case Law
or Statute

Trump’s assertion of “absolute immunity” is not supported by the
U.S. Constitution or any judicial opinion or federal statute. It
reflects only the opinion of the Department of Justice’s Office of
Legal Counsel (OLC), which is itself a part of the executive branch.
Since the 1970s, the OLC has taken the position
[[link removed]]that
“the President and his immediate advisers are absolutely immune from
testimonial compulsion by a Congressional committee.”

“Absolute immunity,” as defined by the OLC, is broader than
executive privilege. Absolute immunity would relieve a witness from
testifying at all. Executive privilege, on the other hand, prevents
witnesses from answering specific questions relating to confidential
communications. Trump has not invoked executive privilege regarding
McGahn’s testimony.

The only court to address absolute immunity rejected it. The issue
arose in the 2008 case of _Committee on the Judiciary v. Miers_
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which was brought by the House Judiciary Committee against President
George W. Bush’s former White House counsel Harriet Miers for
defying a subpoena to testify about the termination of nine U.S.
attorneys. The federal district court decided in favor of the House
Judiciary Committee, stating, “Clear precedent and persuasive policy
reasons confirm that the Executive cannot be the judge of its own
privilege and hence Ms. Miers is not entitled to absolute immunity
from compelled congressional process.” (The court in that case left
open the possibility that it might reach a different result if
national security or foreign affairs were at issue.) Nevertheless, the
_Miers_ case has no precedential value since it was settled before an
appellate court could rule on the issue.

Damaging Testimony Despite Presidential Ban

Those who have already testified, notwithstanding Trump’s order to
defy subpoenas, have given damning testimony against him. Here are
summaries of some testimonies already provided by key witnesses:

–Lt. Col. Alexander Vindman, top Ukraine expert on the National
Security Council, listened in on the July 25 call. He then twice
complained
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to John Eisenberg, deputy White House counsel for national security
affairs, expressing his alarm at Trump’s attempt to get Zelensky to
sully his political opponents.

–William Taylor, acting ambassador to Ukraine, testified
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it was his “clear understanding” that U.S. aid would be withheld
until Ukraine began to investigate Joe Biden.

–Gordon Sondland, U.S. ambassador to the European Union, initially
said he “never” thought there were preconditions on the assistance
to Ukraine, but later contradicted his former testimony
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–Kurt Volker, former State Department envoy to Ukraine, testified
that he wasn’t aware of a quid pro quo
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but said that Trump’s personal lawyer, Rudy Giuliani, pressured
Ukrainian officials to state publicly that they would investigate
Trump’s political rivals.

–John Sullivan, deputy secretary of state and Trump’s nominee for
U.S. ambassador to Russia, testified that Trump’s requests to
Zelensky were improper
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–Timothy Morrison, a senior National Security Council aide who
resigned on the eve of his scheduled testimony, testified
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that he was on a call between Trump and Sondland, during which Trump
denied seeking a quid pro quo but proceeded to “insist” that
Zelensky publicly announce investigations into the Bidens and other
Democrats.

–Fiona Hill, Trump’s former top adviser on Russia, testified
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that Sondland, Giuliani and acting White House chief of staff Mick
Mulvaney were leading a dangerous shadow foreign policy. She said
there was “wrongdoing”
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in U.S. foreign policy.

Several witnesses have obeyed Trump’s command and refused to
testify. They include John Eisenberg, who is a material witness to the
cover-up surrounding the July 25 call. After Vindman expressed his
concern about the call, Eisenberg ordered the records of the call
transferred to a top-secret computer server used only for the most
sensitive government information. Eisenberg is refusing to comply with
a subpoena
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to testify.

Other subpoenaed witnesses who have refused to testify
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Mike Ellis, Eisenberg’s deputy; Robert Blair, senior adviser to
Mulvaney; Russell Vought, acting director of the Office of Management
and Budget; and Brian McCormack, associate director of the White House
budget office.

This may prove to be one of the pivotal separation of powers cases of
our time.

Meanwhile, on November 1, the Office of Legal Counsel issued a
guidance
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stating that subpoenaed executive branch witnesses need not testify in
impeachment inquiries “about matters that potentially involve
information protected by executive privilege without the assistance of
agency counsel.” Witnesses who are testifying before congressional
committees in the impeachment inquiry may be accompanied by personal
attorneys, but not government ones.

Whether senior presidential advisers enjoy “absolute immunity” if
they refuse to comply with a congressional subpoena to testify at an
impeachment inquiry will invariably be decided by the Supreme Court.
Judge Jackson’s decision in the McGahn case will be appealed to the
Court of Appeals and then to the Supreme Court. This may prove to be
one of the pivotal separation of powers cases of our time.

_Marjorie Cohn [[link removed]] is professor emerita at
Thomas Jefferson School of Law, former president of the National
Lawyers Guild, deputy secretary general of the International
Association of Democratic Lawyers and a member of the advisory board
of Veterans for Peace. Her most recent book is Drones and Targeted
Killing: Legal, Moral, and Geopolitical Issues
[[link removed]]._

Thanks to the author for sending this to xxxxxx.

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