“It is a rancorous story about whistleblowers, Mr. Giuliani, side channels, quid pro quos, corruption, and interference in elections.” That was the description of U.S.-Ukrainian relations presented to Congress by William Taylor, the U.S. Chief of Mission to Ukraine, in a devastating statement to Congress this week. Taylor, a witness of impeccable resume, including military service in Vietnam and foreign service experience around the world under six presidents, punctured White House denials that Trump withheld security assistance to Ukraine while demanding a public announcement from Ukrainian President Zelensky of an investigation of Joe and Hunter Biden.
To block cooperation of government officials in the investigation, White House Counsel Cipollone sent a jarringly unprofessional rant of a letter to Congress refusing any cooperation because, he contended, the impeachment inquiry is unconstitutional and, well, just downright unfair. Heads of agencies and White House officials have defied subpoenas and have instructed their employees not to cooperate with the investigation.
Regardless, a stream of executive branch employees has defied instructions to testify before Congress in closed depositions about the Ukraine scandal. For the most part, they have appeared pursuant to subpoena. For those still in government, the risks of defying political leadership are substantial. Their appearances reflect an understanding that lawful congressional subpoenas must be obeyed and a rejection of the White House argument that the congressional investigation is unlawful. In reality, none of the subpoenaed witnesses would be prosecuted for criminal contempt if they failed to cooperate, since that task would fall to Bill Barr’s Justice Department. For most, their willingness to comply stems from respect for the rule of law and the constitutionally assigned powers of government, as well as concern about the conduct of the nation’s foreign policy.
Their actions highlight the crucial role of career public servants. They often serve through multiple administrations with a commitment to the Constitution and the missions of the agencies they serve. They develop institutional memory and expertise, and provide stability, qualities that should be indispensable to political leadership that changes regularly. And their existence diminishes the likelihood of abuses of government power for illegitimate purposes.
In general, Congress and the Executive Branch cooperate to avoid the issuance of subpoenas to career officials. They recognize that there is substantial danger in allowing Congress to call to account the people who implement the decisions of Executive Branch officials. Almost always, a political official appears before Congress to explain the conduct of an agency. That avoids the danger of direct congressional influence on the activities of career officials. Thus, the Department of Justice, for example, strongly resists sending line attorneys to Congress to explain indictments, arguments made in court, or legal opinions. The Department, quite properly, doesn’t want attorneys to be concerned about how a decision that should be driven by facts and law will play in Congress. Political officials serve as a buffer.
There should be no constraint on career people responding to a properly issued congressional subpoena, however, when Congress is investigating serious wrongdoing and career people are essential as fact witnesses. Congressional subpoenas are not invitations. Rather, they are commands to appear before Congress or to produce documents and must be complied with unless a court says otherwise. A subpoena can be challenged in court on grounds that it was issued through a flawed process or exceeds the legislative authority of Congress, but courts have been very reluctant to second-guess the authority of Congress to summon witnesses or documents. Cipollone’s letter does not come close to providing a legal basis for witnesses in the Ukraine investigation to refuse compliance.
The respect these public servants have shown for constitutional process and the rule of law contrasts sharply with the conduct of Trump and his supporters, who have responded by doubling down on their denunciation of the impeachment process, criticizing Democrats for conducting witness interviews behind closed doors, and barring agency lawyers from the depositions. In reality, investigations – whether by Congress or the justice system — are regularly conducted in secrecy to prevent witnesses and potential subjects from adapting their testimony to prior testimony. In addition, the deposition format allows for extensive questioning, free of the five-minute rule that makes public hearings ineffective vehicles for gathering facts. Closed depositions are commonly used by Congress to lay the factual foundation for public proceedings. From the investigation of U.S. Attorney firings under George W. Bush to Benghazi, committees have relied heavily on depositions. Also, recall that Ken Starr and the Watergate prosecutors conducted Clinton’s and Nixon’s pre-impeachment investigations under the veil of grand jury secrecy before delivering evidence to Congress. Moreover, the standing rules of the House of Representatives ban agency lawyers from committee depositions.
Eventually, the House Judiciary Committee will moot these misplaced process concerns by convening public hearings leading to adoption of articles of impeachment. We can be fairly certain that Republicans will not embrace that process, either.
Manifesting their increasing desperation and disrespect for the rule of law, some forty-one members of the House Freedom Caucus stormed the SCIF (Secure Compartmented Information Facility) in which a Department of Defense official, Deputy Assistant Secretary Laura Cooper, was scheduled to testify regarding the withholding of military assistance to Ukraine. They purported to be protesting the closed nature of the hearings. In reality, thirteen of the marauding Republican legislators were entitled to be in the depositions as members of the relevant committees, but chose to disrupt rather than participate. The hearings are open to Republican committee members and Republicans are given equal time to question deponents. Indeed, the depositions are being conducted pursuant to rules adopted by the Republican majority in 2015.
While many have made much of the security breach of invading a SCIF, that seems less important than what the invasion portends for the lawlessness ahead. Republican members acted after meeting with Trump the day before. Reportedly, he encouraged them to be more aggressive, shortly after tweeting that “never Trumpers” like William Taylor are “human scum.” As any defense on the merits of Trump’s impeachable conduct dissolves, his conduct and that of his supporters promises to become more desperate. The ultimate test will be whether his desperation will prove a match for dedicated career professionals who believe in the rule of law and the institutions of government.