Narrative
The President 's Refusal to Allow Top Aides to Testify
At President Trump 's direction, twelve current or former Administration officials refused to testify as part of the House 's impeachment inquiry, ten of whom did so in defiance of duly authorized subpoenas. The President 's orders were coordinated and executed by the White House Counsel and others, and they prevented testimony from officials from the White House, National Security Council, Office of Management and Budget, Department of State, and Department of Energy.
Overview
No other President in history has issued an order categorically directing the entire Executive Branch not to testify before Congress, including in the context of an impeachment inquiry. President Trump issued just such an order.
As reflected in White House Counsel Pat Cipollone 's October 8 letter, President Trump directed all government witnesses to violate their legal obligations by defying House subpoenas-- regardless of their office or position. President Trump even extended his order to former officials no longer employed by the federal government. This Administration-wide effort to prevent all witnesses from providing testimony was coordinated and comprehensive.
These witnesses were warned that their refusal to testify" shall constitute evidence that may be used against you in a contempt proceeding'' and" may be used as an adverse inference against you and the President.''
Despite the President 's unprecedented commands, the House gathered a wealth of evidence of his conduct from courageous individuals who were willing to follow the law, comply with duly authorized subpoenas, and tell the truth. Nevertheless, the President 's efforts to obstruct witness testimony deprived Congress and the public of additional evidence.
In following President Trump 's orders to defy duly authorized Congressional subpoenas, several Administration officials who, to date, remain under subpoena may have placed themselves at risk of being held in criminal contempt of Congress. These witnesses were warned explicitly that their refusal to obey lawful orders to testify" shall constitute evidence that may be used against you in a contempt proceeding'' and could also result in adverse inferences being drawn against both them and the President.
Mick Mulvaney, Acting White House Chief of Staff
On November 5, the Committees sent a letter to Mick Mulvaney, the Acting White House Chief of Staff, seeking his appearance at a deposition on November 8. The Committees received no response to this letter.
On November 7, the Intelligence Committee issued a subpoena compelling Mr. Mulvaney 's appearance at a deposition on November 8. On November 8, Mr. Mulvaney 's personal attorney sent an email to Committee staff stating that" Mr. Mulvaney will not be attending the deposition today, and he is considering the full range of his legal options.''
Mr. Mulvaney 's personal attorney provided a letter that was sent on November 8 from Mr. Cipollone, stating that" the President directs Mr. Mulvaney not to appear at the Committee 's scheduled deposition on November 8, 2019.'' Mr. Mulvaney 's personal attorney also provided a letter sent on November 7 from Steven A. Engel, Assistant Attorney General at the Office of Legal Counsel of the Department of Justice, to Mr. Cipollone, stating," Mr. Mulvaney is absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.''
Mr. Mulvaney did not appear at the deposition on November 8, in defiance of the Committees ' subpoena. The Committees met, and Chairman Schiff acknowledged Mr. Mulvaney 's absence, stating:
Neither Congress nor the courts recognize a blanket absolute immunity as a basis to defy a congressional subpoena. Mr. Mulvaney and the White House, therefore, have no legitimate legal basis to evade a duly authorized subpoena. The President 's direction to Mr. Mulvaney to defy our subpoena can, therefore, only be construed as an effort to delay testimony and obstruct the inquiry, consistent with the White House Counsel 's letter dated October 8, 2019.
Chairman Schiff also explained Mr. Mulvaney 's knowledge of and role in facilitating the President 's conduct:
Mr. Mulvaney 's role in facilitating the White House 's obstruction of the impeachment inquiry does not occur in a vacuum. Over the past several weeks, we have gathered extensive evidence of the President 's abuse of power related to pressuring Ukraine to pursue investigations that would benefit the President personally and politically and jeopardize national security in doing so. Some of that evidence has revealed that Mr. Mulvaney was a percipient witness to misconduct by the President and may have had a role in certain actions under investigation. The evidence shows that Mr. Mulvaney may have coordinated with U.S. Ambassador to the European Union Gordon Sondland, Rudy Giuliani, and others to carry out President Trump 's scheme to condition a White House meeting with President Zelensky on the Ukrainians ' pursuit of investigations of the Bidens, Burisma holdings, and purported Ukrainian interference in the 2016 U.S. Presidential election. In addition, evidence suggests that Mr. Mulvaney may have played a central role in President Trump 's attempt to coerce Ukraine into launching his desired political investigations by withholding nearly$ 400 million in vital security assistance from Ukraine that had been appropriated by Congress. At a White House press briefing on October 17, 2019, Mr. Mulvaney admitted publicly that President Trump ordered the hold on Ukraine security assistance to further the President 's own personal political interests rather than the national interest.... Based on the record evidence gathered to date, we can only infer that Mr. Mulvaney 's refusal to testify is intended to prevent the Committees from learning additional evidence of President Trump 's misconduct and that Mr. Mulvaney 's testimony would corroborate and confirm other witnesses ' accounts of such misconduct. If the White House had evidence to contest those facts, they would allow Mr. Mulvaney to be deposed. Instead, the President and the White House are hiding and trying to conceal the truth from the American people. Given the extensive evidence the Committees have already uncovered, the only result of this stonewalling is to buttress the case for obstruction of this inquiry.
To date, Mr. Mulvaney has not changed his position about compliance with the subpoena.
Robert B. Blair, Assistant to the President and Senior Advisor to the Chief of Staff
On October 24, the Committees sent a letter to Robert B. Blair, an Assistant to the President and the Senior Advisor to Acting Chief of Staff Mulvaney, seeking Mr. Blair 's appearance at a deposition on November 1. On November 2, Mr. Blair 's personal attorney sent a letter to the Committees stating:
Mr. Blair has been directed by the White House not to appear and testify at the Committees ' proposed deposition, based on the Department of Justice 's advice that the Committees may not validly require an executive branch witness to appear at such a deposition without the assistance of agency counsel. In light of the clear direction he has been given by the Executive Branch, Mr. Blair must respectfully decline to testify, as you propose, on Monday, November 4, 2019.
On November 3, the Committees sent a letter to Mr. Blair 's personal attorney transmitting a subpoena compelling Mr. Blair to appear at a deposition on November 4.
On November 4, Mr. Blair did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Blair 's absence, stating:
Although the committees requested a copy of the correspondence from the White House and Department of Justice, Mr. Blair 's Counsel did not provide it to the Committees. This new and shifting rationale from the White House, like the others it has used to attempt to block witnesses from appearing to provide testimony about the President 's misconduct, has no basis in law or the Constitution and is a serious affront to decades of precedent in which Republicans and Democrats have used exactly the same procedures to depose executive branch officials without agency counsel present, including some of the most senior aides to multiple previous Presidents.
Unlike President Trump 's directive to Acting Chief of Staff Mulvaney, neither Mr. Blair nor the White House have asserted that Mr. Blair is" absolutely immune'' from providing testimony to Congress. To date, Mr. Blair has not changed his position or contacted the Committees about compliance with the subpoena.
Ambassador John Bolton, Former National Security Advisor
On October 30, the Committees sent a letter to the personal attorney of Ambassador John Bolton, the former National Security Advisor to President Trump, seeking his appearance at a deposition on November 7. Later that day, Ambassador Bolton 's personal attorney sent an email to Committee staff stating," As you no doubt have anticipated, Ambassador Bolton is not willing to appear voluntarily.''
On November 7, Ambassador Bolton did not appear for the scheduled deposition. On November 8, Ambassador Bolton 's personal attorney sent a letter to Douglas Letter, the General Counsel of the House of Representatives, suggesting that, if Ambassador Bolton were subpoenaed, he would file a lawsuit and would comply with the subpoena only if ordered to do so by the court. He referenced a lawsuit filed by another former official, Dr. Charles Kupperman, represented by the same attorney and stated:
As I emphasized in my previous responses to letters from the House Chairs, Dr. Kupperman stands ready, as does Ambassador Bolton, to testify if the Judiciary resolves the conflict in favor of the Legislative Branch 's position respecting such testimony.
To date, Ambassador Bolton has not changed his position or come forward to testify.
John A. Eisenberg, Deputy Counsel to the President for National Security Affairs and Legal Advisor, National Security Council
On October 30, the Committees sent a letter to John A. Eisenberg, the Deputy Counsel to the President for National Security Affairs and the Legal Advisor at the National Security Council, seeking his appearance at a deposition on November 4. The Committees received no response to this letter.
On November 1, the Committees sent a letter to Mr. Eisenberg transmitting a subpoena compelling his appearance at a deposition on November 4. On November 4, Mr. Eisenberg 's personal attorney sent a letter to the Committees, stating:
Even if Mr. Eisenberg had been afforded a reasonable amount of time to prepare, the President has instructed Mr. Eisenberg not to appear at the deposition. Enclosed with this letter is the President 's instruction as relayed by Pat A. Cipollone, Counsel to the President, in a letter dated November 3, 2019. We also enclose a letter, also dated November 3, 2019, from Steven A. Engel, Assistant Attorney General for the Office of Legal Counsel at the Department of Justice, to Mr. Cipollone advising that Mr. Eisenberg is" absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.'' Under these circumstances, Mr. Eisenberg has no other option that is consistent with his legal and ethical obligations except to follow the direction of his client and employer, the President of the United States. Accordingly, Mr. Eisenberg will not be appearing for a deposition at this time.
Enclosed was a letter sent on November 3 from Mr. Cipollone to Mr. Eisenberg 's personal attorney stating that" the President directs Mr. Eisenberg not to appear at the Committee 's deposition on Monday, November 4, 2019.'' Also enclosed was a letter sent on November 3 by Assistant Attorney General Steven A. Engel to the Office of Legal Counsel of the Department of Justice to Mr. Cipollone stating:
You have asked whether the Committee may compel Mr. Eisenberg to testify. We conclude that he is absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.
Mr. Eisenberg did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Eisenberg 's absence, stating:
Despite his legal obligations to comply, Mr. Eisenberg is not present here today and has therefore defied a duly authorized congressional subpoena. This morning, in an email received at 9:00 a.m., when the deposition was supposed to commence, Mr. Eisenberg 's personal attorney sent a letter to the committee stating that President Trump had, quote," instructed Mr. Eisenberg not to appear at the deposition,'' unquote. The attorney attached correspondence from White House counsel Pat Cipollone and a letter from the Office of Legal Counsel at Department of Justice. The OLC letter informs the White House that Mr. Eisenberg is purportedly, quote," absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President,'' unquote....
Moreover, neither Congress nor the courts recognize a blanket, quote," absolute immunity,'' unquote, as a basis to defy a congressional subpoena. Mr. Eisenberg and the White House, therefore, have no basis for evading a lawful subpoena. As such, the President 's direction to Mr. Eisenberg to defy a lawful compulsory process can only be construed as an effort to delay testimony and obstruct the inquiry, consistent with the White House counsel 's letter dated October 8, 2019. As Mr. Eisenberg was informed, the Committees may consider his noncompliance with the subpoena as evidence in a future contempt proceeding. His failure or refusal to appear, moreover, shall constitute evidence of obstruction of the House 's impeachment inquiry and may be used as an adverse inference against the President. The subpoena remains in full force. The committees reserve all of their rights, including the right to raise this matter at a future Intelligence Committee proceeding, at the discretion of the chair of the committee.
Mr. Eisenberg 's nonappearance today adds to a growing body of evidence of the White House seeking to obstruct the White House 's impeachment inquiry. To the extent the White House believes that an issue could be raised at the deposition that may implicate a valid claim of privilege, the White House may seek to assert that privilege with the Committee in advance of the deposition. To date, as has been the case in every other deposition as part of the inquiry, the White House has not done so. Mr. Eisenberg 's failure to appear today also flies in the face of historical precedent. Even absent impeachment proceedings, congressional committees have deposed senior White House officials, including White House counsels and senior White House lawyers.
Michael Ellis, Senior Associate Counsel to the President and Deputy Legal Advisor, National Security Council
On October 30, the Committees sent a letter to Michael Ellis, a Senior Associate Counsel to the President and the Deputy Legal Advisor at the National Security Council, seeking his appearance at a deposition on November 4. On November 2, Mr. Ellis ' personal attorney sent an email to Committee staff stating:
[ W] e are in receipt of an opinion from the Office of Legal Counsel providing guidance on the validity of a subpoena under the current terms and conditions and based on that guidance we are not in a position to appear for a deposition at this time.
This email followed the November 1 Office of Legal Counsel opinion, discussed above, which sought to extend the reach of the President 's earlier direction to defy Congressional subpoenas and provided justification for noncompliance by officials who could not plausibly be considered among the President 's closest advisors.
On November 3, Mr. Ellis ' personal attorney sent another email to Committee staff stating:
[ O] ur guidance is that the failure to permit agency counsel to attend a deposition of Mr. Ellis would not allow sufficient protection of relevant privileges and therefore render any subpoena constitutionally invalid. As an Executive branch employee Mr. Ellis is required to follow this guidance.
On November 3, the Committees sent a letter to Mr. Ellis ' personal attorney transmitting a subpoena compelling his appearance at a deposition on November 4, stating:
Mr. Ellis ' failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute further evidence of obstruction of the House 's impeachment inquiry and may be used as an adverse inference against Mr. Ellis and the President.
On November 4, Mr. Ellis did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Ellis ' absence, stating:
Other than the White House 's objections to longstanding congressional practice, the committees are aware of no other valid constitutional privilege asserted by the White House to direct Mr. Ellis to defy this subpoena.
To date, Mr. Ellis has not changed his position or contacted the Committees about compliance with the subpoena.
Preston Wells Griffith, Senior Director for International Energy and Environment, National Security Council
On October 24, the Committees sent a letter to Preston Wells Griffith, the Senior Director for International Energy and Environment at the National Security Council, seeking his appearance at a deposition on November 5. On November 4, Mr. Griffith 's personal attorney sent a letter to the Committees stating:
As discussed with Committee counsel, Mr. Griffith respectfully declines to appear for a deposition before the joint Committees conducting the impeachment inquiry, based upon the direction of White House Counsel that he not appear due to agency counsel not being permitted.
Later that day, the Committees sent a letter to Mr. Griffith 's personal attorney transmitting a subpoena compelling his appearance at a deposition on November 5, stating:
Mr. Griffith 's failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute further evidence of obstruction of the House 's impeachment inquiry and may be used as an adverse inference against Mr. Griffith and the President.
On November 5, Mr. Griffith did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Griffith 's absence, stating:
Although the committees requested a copy of any written direction from the White House, Mr. Griffith 's counsel has not provided any such documentation to the committees. The White House 's newly invented rationale for obstructing the impeachment inquiry appears based on a legal opinion that was issued by the Department of Justice Office of Legal Counsel just last Friday, November 1. It is noteworthy and telling that OLC issued this opinion after multiple current and former White House, State Department, and Department of Defense officials testified before the committees, both voluntarily and pursuant to subpoena, all without agency counsel present. The White House 's invocation of this self-serving OLC opinion should therefore be seen for what it is: a desperate attempt to staunch the flow of incriminating testimony from the executive branch officials about the President 's abuse of power.
To date, Mr. Griffith has not changed his position or contacted the Committees about compliance with the subpoena.
Dr. Charles M. Kupperman, Former Deputy Assistant to the President for National Security Affairs, National Security Council
On October 16, the Committees sent a letter to Dr. Charles M. Kupperman, a former Deputy Assistant to the President for National Security Affairs, seeking his appearance at a deposition on October 23.
On October 25, the Intelligence Committee issued a subpoena compelling Dr. Kupperman to appear at a deposition on October 28.
Later that day, Dr. Kupperman 's personal attorney sent an email to Committee staff attaching a 17-page complaint in federal court seeking a declaratory judgment as to whether he should comply with the subpoena .245 His counsel wrote:
Pending the courts ' determination as to which Branch should prevail, Dr. Kupperman will not effectively adjudicate the conflict by appearing and testifying before the Committees.
Enclosed as part of the complaint was a letter sent on October 25 from Mr. Cipollone to Dr. Kupperman 's personal attorney stating that" the President directs Mr. Kupperman not to appear at the Committee 's scheduled hearing on Monday, October 28, 2019.'' Also enclosed was a letter sent on October 25 from Steven A. Engel, Assistant Attorney General at the Office of Legal Counsel of the Department of Justice, to Mr. Cipollone stating that Dr. Kupperman" is absolutely immune from compelled congressional testimony in his capacity as a former senior advisor to the President.''
On October 26, the Committees sent a letter to Dr. Kupperman 's personal attorneys, stating:
In light of the direction from the White House, which lacks any valid legal basis, the Committees shall consider your client 's defiance of a congressional subpoena as additional evidence of the President 's obstruction of the House 's impeachment inquiry.
Later that day, Dr. Kupperman 's personal attorney sent a letter to Committee staff, stating:" The proper course for Dr. Kupperman, we respectfully submit, is to lay the conflicting positions before the Court and abide by the Court 's judgment as to which is correct.'' On October 27, Dr. Kupperman 's personal attorney sent a letter to Committee staff, writing:" If your clients ' position on the merits of this issue is correct, it will prevail in court, and Dr. Kupperman, I assure you again, will comply with the Court 's judgment.''
On November 5, the Committees sent a letter to Dr. Kupperman 's personal attorneys withdrawing the subpoena, stating:
The question whether the Executive Branch 's" absolute immunity'' theory has any basis in law is currently before the court in Committee on the Judiciary v. McGahn, No. 19-cv2379( D.D.C. filed Aug. 7, 2019). In addition to not suffering from the jurisdictional flaws in Dr. Kupperman 's suit, McGahn is procedurally much further along.
On November 8, Dr. Kupperman 's personal attorney sent a letter to Douglas Letter, the General Counsel of the House of Representatives, stating that Dr. Kupperman stands ready to testify" if the Judiciary resolves the conflict in favor of the Legislative Branch 's position respecting such testimony.''
On November 25, the district court in McGahn held that" with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist.'' The court explained there is" no basis in the law'' for a claim of absolute immunity regardless of the position of the aides in question or whether they" are privy to national security matters, or work solely on domestic issues.'' To date and notwithstanding the ruling in McGahn as it relates to Presidential aides who" are privy to national security matters,'' Dr. Kupperman continues to refuse to testify, and his case remains pending in federal court.
Russell T. Vought, Acting Director, Office of Management and Budget
On October 11, the Committees sent a letter to Russell T. Vought, the Acting Director of OMB, seeking his appearance at a deposition on October 25.256 On October 21, an attorney at OMB sent an email to Committee staff stating:
Per the White House Counsel 's October 8, 2019 letter, the President has directed that"[ c] onsistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office,[ he] can not permit his Administration to participate in this partisan inquiry under these circumstances.'' Therefore, Acting Director Vought will not be participating in Friday 's deposition.
That same day, Mr. Vought publicly stated:
I saw some Fake News over the weekend to correct. As the WH letter made clear two weeks ago, OMB officials-- myself and Mike Duffey-- will not be complying with deposition requests this week. #shamprocess.
On October 25, the Committees sent a letter transmitting a subpoena compelling Mr. Vought 's appearance at a deposition on November 6.
On November 4, Jason A. Yaworske, the Associate Director for Legislative Affairs at OMB, sent a letter to Chairman Schiff stating:
The Office of Management and Budget( OMB) reasserts its position that, as directed by the White House Counsel 's October 8, 2019, letter, OMB will not participate in this partisan and unfair impeachment inquiry.... Therefore, Mr. Vought, Mr. Duffey, and Mr. McCormack will not appear at their respective depositions without being permitted to bring agency counsel.
On November 5, Mr. Vought did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Vought 's absence, stating:
On Monday of this week, OMB reasserted its position that, quote," as directed by the White House Counsel 's October 8, 2019, letter, OMB will not participate in this partisan and unfair impeachment inquiry,'' unquote. OMB argues that the impeachment inquiry lacks basic due process protections and relies on OLC opinion that the committee can not lawfully bar agency counsel from depositions. This new and shifting rationale from the White House, like the others it has used to attempt to block witnesses from appearing to provide testimony about the President 's misconduct, has no basis in law or the Constitution and is a serious affront to decades of precedent in which Republicans and Democrats have used exactly the same procedures to depose executive branch officials without agency counsel present, including some of the most senior aides to multiple previous Presidents.
To date, Mr. Vought has not changed his position or contacted the Committees about compliance with the subpoena.
Michael Duffey, Associate Director for National Security Programs, Office of Management and Budget
On October 11, the Committees sent a letter to Michael Duffey, the Associate Director for National Security Programs at OMB, seeking his appearance at a deposition on October 23. On October 21, an attorney at OMB sent an email to Committee staff stating:
Per the White House Counsel 's October 8, 2019 letter, the President has directed that"[ c] onsistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office,[ he] can not permit his Administration to participate in this partisan inquiry under these circumstances.'' Therefore, Mike Duffey will not be participating in Wednesday 's deposition.
On October 25, the Committees sent a letter transmitting a subpoena compelling Mr. Duffey to appear at a deposition on November 5, 2019, stating:
Your failure or refusal to appear at the deposition, including at the direction or behest of the President or the White House, shall constitute evidence of obstruction of the House 's impeachment inquiry and may be used as an adverse inference against the President.
On November 4, Jason A. Yaworske, the Associate Director for Legislative Affairs at OMB, sent a letter to Chairman Schiff stating that," as directed by the White House Counsel 's October 8, 2019, letter,'' Mr. Duffey will not appear at his deposition.
On November 5, Mr. Duffey did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Duffey 's absence, stating:
This effort by the President to attempt to block Mr. Duffey from appearing can only be interpreted as a further effort by the President and the White House to obstruct the impeachment inquiry and Congress 's lawful and constitutional functions.
To date, Mr. Duffey has not changed his position or contacted the Committees about compliance with the subpoena.
On October 24, the Committees sent a letter to Brian McCormack, the Associate Director for Natural Resources, Energy, and Science at OMB, seeking his appearance at a deposition on November 4.
On November 1, the Committees sent a letter transmitting a subpoena compelling Mr. McCormack 's appearance at a deposition on November 4.
On November 4, Jason A. Yaworske, the Associate Director for Legislative Affairs at OMB, sent a letter to Chairman Schiff stating that," as directed by the White House Counsel 's October 8, 2019, letter,'' Mr. McCormack will not appear at his deposition.
On November 4, Mr. McCormack did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. McCormack 's absence, stating:
At approximately 11:30 a.m. today, committee staff received via email a letter from the Associate Director for Legislative Affairs at OMB. The letter states that, quote," As directed by the White House counsel 's October 8, 2019, letter,'' unquote, OMB will not participate in the House 's impeachment inquiry. The letter further states that, based on the advice of the Office of Legal Counsel that, quote," the committee can not lawfully bar agency counsel from these depositions,'' unquote, Mr. McCormack will not appear at his deposition today without agency counsel present. As Mr. McCormack was informed, the committees may consider his noncompliance with a subpoena as evidence in a future contempt proceeding. His failure or refusal to appear, moreover, shall constitute evidence of obstruction of the House 's impeachment inquiry and may be used as an adverse inference against the President.
To date, Mr. McCormack has not changed his position or contacted the Committees about compliance with the subpoena.
T. Ulrich Brechbuhl, Counselor, Department of State
On September 13, the Committees sent a letter to Secretary of State Mike Pompeo seeking transcribed interviews with Counselor T. Ulrich Brechbuhl and other officials. The Committees received no direct, substantive response to this letter.
On September 27, the Committees sent a letter informing Secretary Pompeo that Mr. Brechbuhl 's deposition was being scheduled on October 8, stating:
On September 13, the Committees wrote to request that you make State Department employees available for transcribed interviews. We asked you to provide, by September 20, dates by which the employees would be made available for transcribed interviews. You failed to comply with the Committees ' request.
That same day, the Committees sent a letter directly to Mr. Brechbuhl seeking his appearance at a deposition on October 8.
On October 1, Secretary Pompeo sent a letter to the Committees stating," Based on the profound procedural and legal deficiencies noted above, the Committee 's requested dates for depositions are not feasible.''
Later that day, the Committees sent a letter to Deputy Secretary of State John J. Sullivan stating that the State Department" must immediately halt all efforts to interfere with the testimony of State Department witnesses before Congress.''
On October 2, Mr. Brechbuhl 's personal attorney sent an email to Committee staff stating:
My law firm is in the process of being formally retained to assist Mr. Brechbuhl in connection with this matter. It will take us some time to complete those logistics, review the request and associated request for documents, and to meet with our client to insure he is appropriately prepared for any deposition. It will not be possible to accomplish those tasks before October 8, 2019. Thus, as I am sure that you can understand, Mr. Brechbuhl will not be able to appear on that date as he requires a sufficient opportunity to consult with counsel. Moreover, given the concerns expressed in Secretary Pompeo 's letter of October 1, 2019, to Chairman Engel, any participation in a deposition would need to be coordinated with our stakeholders.
On October 8, Committee staff sent an email to Mr. Brechbuhl 's personal attorney stating:" The Committees have agreed to reschedule Mr. Brechbuhl 's deposition to Thursday, October 17. Please confirm that Mr. Brechbuhl intends to appear voluntarily.'' On October 9, Committee staff sent an email to Mr. Brechbuhl 's personal attorney asking him to" confirm by COB today whether Mr. Brechbuhl intends to appear voluntarily.'' Later that day, Mr. Brechbuhl 's personal attorney sent an email to Committee staff stating," I am still seeking clarification from the State Department regarding this deposition.''
On October 25, the Committees sent a letter to Mr. Brechbuhl 's personal attorney transmitting a subpoena compelling Mr. Brechbuhl 's appearance at a deposition on November 6.
On November 5, Mr. Brechbuhl 's personal attorney sent a letter to the Committees stating:
Mr. Brechbuhl respects the important Constitutional powers vested in the United States Congress. And, indeed, he would welcome the opportunity to address through testimony an existing inaccuracy in the public record-- the false claim that Mr. Brechbuhl in any way personally participated in the telephone call between President Trump and President Zelensky that occurred on July 25, 2019. However, Mr. Brechbuhl has received a letter of instruction from the State Department, directing that he not appear. The State Department letter of instruction asserts significant Executive Branch interests as the basis for direction not to appear and also asserts that the subpoena Mr. Brechbuhl received is invalid. The letter is supported by analysis from the United States Department of Justice. We are also aware that litigation has recently been initiated in the United States District Court for the District of Columbia that may bear on resolving the significant issues now arising between the Committees and the President. Given these circumstances, Mr. Brechbuhl is not able to appear on November 6, 2019.
On November 6, Mr. Brechbuhl did not appear for the scheduled deposition, in defiance of the Committees ' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Brechbuhl 's absence, stating:
The committees requested a copy of the State Department 's letter and the Department of Justice analysis, but Mr. Brechbuhl 's attorney has not responded. While the letter from Mr. Brechbuhl 's attorney provides only vague references to unidentified executive branch interests and a DOJ analysis as the basis for the State Department 's blocking of Mr. Brechbuhl 's testimony, the Department 's latest obstruction of this inquiry appears to be predicated on the opinion issued by the Department of Justice Office of Legal Counsel just last Friday, November 1, well after the subpoena was issued to Mr. Brechbuhl. It is noteworthy and telling that the OLC issued this opinion only after multiple State Department officials testified in this inquiry, both voluntarily and pursuant to subpoena, all without agency counsel present. Indeed, this morning, the third-highest-ranking official at the State Department, Under Secretary David Hale, appeared and has begun testifying in accordance with his legal obligations pursuant to a subpoena.
The Committees sent Mr. Brechbuhl 's personal attorney two separate inquiries asking him to provide a copy of the" letter of instruction'' that Mr. Brechbuhl claimed to have received from the State Department directing him to defy a congressional subpoena. Mr. Brechbuhl 's personal attorney furnished the Committees with a copy of the letter on December 2. The State Department 's letter to Mr. Brechbuhl is dated November 4, 2019.
To date, Mr. Brechbuhl has not changed his position or contacted the Committees about compliance with the subpoena.
Secretary Rick Perry, Department of Energy
On November 1, the Committees sent a letter to Secretary of Energy Rick Perry seeking his appearance at a deposition on November 6, stating:
Your failure or refusal to appear at the deposition, including at the direction or behest of the President or the White House, shall constitute evidence of obstruction of the House 's impeachment inquiry and may be used as an adverse inference against the President.
On November 5, an attorney at the Department of Energy sent a letter to the Committees stating:
Please be advised that the Secretary will not appear on Wednesday, November 6, 2019, at 2:00 pm for a deposition to be conducted jointly by the Permanent Select Committee on Intelligence, the Committee on Foreign Affairs, and the Committee on Oversight and Reform.
To date, Secretary Perry has not changed his position or come forward to testify.