Democrats banking on Hicks testimony to advance Trump probes

Democrats banking on Hicks testimony to advance Trump probes
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Former White House aide Hope HicksHope HicksUPDATED: McEnany, Fox News talks on pause Trump selects Hicks, Bondi, Grenell and other allies for positions Trump lawyer Jenna Ellis tests positive for coronavirus MORE is poised to become the Democrats’ first big witness as the House Judiciary Committee presses forward with a sweeping investigation into alleged abuses of power by President TrumpDonald TrumpBiden administration to keep Trump-era rule of turning away migrants during pandemic On The Money: Biden, Pelosi struggle with end of eviction ban | Trump attorney says he will fight release of tax returns Lack of transatlantic cooperation on trade threatens global climate change goals MORE.

The former White House communications director will testify before the committee privately on Wednesday in what is expected to be a marathon session for Hicks, who also worked on Trump’s 2016 campaign. Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerBiden backs effort to include immigration in budget package Biden to meet with 11 Democratic lawmakers on DACA: report Britney Spears's new attorney files motion to remove her dad as conservator MORE (D-N.Y.) plans to release a transcript of the closed-door interview in the coming days.


But the White House is aiming to severely limit any testimony regarding her time in the Trump administration. White House counsel Pat Cipollone wrote in a letter to Nadler on Tuesday evening that Hicks is “absolutely immune” from compelled congressional testimony regarding her work for Trump after he took office.

The deal for Hicks’s appearance marks a rare win for the panel, which has otherwise encountered tremendous resistance from the administration in its investigative pursuits of White House.

Hicks will be the committee’s first material witness as Democrats look to drill down on details about potential obstruction by Trump contained in special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE’s Russia report.

Emails from Hicks, as well as FBI reports documenting her testimony to the special counsel’s office, are frequently cited in the 448-page document that was made public in April.

Democrats are likely to have a difficult time getting answers to all of their questions.

In the Tuesday letter to Nadler, Cipollone wrote that Trump had instructed Hicks “not to answer questions before the Committee relating to the time of her service as a senior adviser to the President.” Cipollone also indicated that the White House would look to limit questions about Hicks’s time working on the presidential transition.


“Much of Ms. Hicks’s work during this period involved discussions with the President-elect and his staff relating to the decisions the President-elect would be making once he assumed office,” Cipollone wrote. “Accordingly, her responses to specific questions about this period would likely implicate executive branch confidentiality interests concerning that decisionmaking process.”

“In order to preserve the President’s ability to assert executive privilege over such information, a member of my office will attend Ms. Hicks’s testimony on June 19,” he added.

The White House, which has accused Nadler’s panel of attempting a “do-over” of Mueller’s 22-month investigation, has also instructed Hicks to not supply the committee with documents that relate to her time at the White House as part of a subpoena Nadler issued last month.

However, Hicks has provided the committee with some documents from her time on the Trump campaign.

Hicks will be accompanied by at least one White House lawyer on Wednesday. A committee aide said Tuesday that the panel expects the attorney to object to certain lines of questioning but noted that lawmakers want the White House to put any executive privilege assertions “on the record.”

“We do anticipate that there will be assertions of executive privilege, and the committee has been very clear it is ready to engage in accommodation and negotiation. That will happen on the spot during the transcribed interview,” the aide said.

The White House has stopped short of making a formal assertion of executive privilege to prevent former officials from providing documents or testimony.

Trump has instructed former White House counsel Don McGahn not to testify before the committee despite a subpoena, citing a Justice Department legal opinion that McGahn is immune from compelled congressional testimony. The Office of Legal Counsel opinion states that the “testimonial immunity is distinct from, and broader than, executive privilege.”

Legal experts say Hicks’s testimony could be dramatically curtailed if the White House makes an aggressive push to limit her responses.

“I think that White House counsel will object when she is asked a question about what was your conversation with the president, at a minimum, while he’s in office,” said Elie Honig, a criminal defense attorney and former federal prosecutor. “I think they are going to raise an executive privilege argument.”

“If Nadler is not thinking about that in advance, then he ought to be, because that kind of objection can really just gut the substance of what Hicks has to say,” Honig added.

Democrats argue the White House would not be on firm legal ground to assert executive privilege over aspects of Hicks’s testimony because Trump already allowed her to interview with Mueller as part of his investigation.

Still, efforts to limit her answers on Wednesday could trigger a legal battle that would significantly delay Hicks's testimony even if Democrats are ultimately successful in securing it.

But it’s not clear if Democrats would be willing to go to court to enforce their subpoena against Hicks if they are unsatisfied with her answers on Wednesday. The House recently voted to give committee chairmen more power to seek civil enforcement of their subpoenas.

Hicks’s name appears almost 200 times in the Mueller report, in sections discussing contacts between members of the Trump campaign and Russia as well as in portions detailing potential obstruction by Trump.

Democrats are eager to press Hicks on the series of episodes she witnessed that Mueller examined as possible obstruction, including the account of Trump directing McGahn to have Mueller removed over alleged conflicts of interest.

“Just by being there and being a close associate, we believe that the information that [Hicks] would have about many of the activities that would warrant a finding of misconduct,” Rep. Sheila Jackson LeeSheila Jackson LeePhotos of the Week: Olympic sabre semi-finals, COVID-19 vigil and a loris House ethics panel decides against probe after Hank Johnson civil disobedience Jackson Lee is third CBC member in three weeks to be arrested protesting for voting rights MORE (D-Texas), a member of the committee, told CNN on Sunday.

Democrats also want to question Hicks about the campaign’s activities and payments made to women who alleged affairs with Trump before the election — inquiries to which the White House may be less likely to raise objections.

Republicans have heralded Hicks’s appearance as proof that the White House is not stonewalling congressional investigations, arguing that Democrats have been their own barrier to getting information.

“Ms. Hicks’ interview tomorrow further proves that the administration is not stonewalling Congress,” Rep. Doug CollinsDouglas (Doug) Allen CollinsLoeffler meets with McConnell amid speculation of another Senate run Georgia agriculture commissioner launches Senate campaign against Warnock Poll shows tight GOP primary for Georgia governor MORE (Ga.), the Judiciary Committee’s top Republican, said in a statement Tuesday. “The White House has offered to negotiate with Democrats for documents that Ms. Hicks can’t provide, and the committee could probably have heard from her earlier if Democrats didn’t take a scorched-earth approach to pursuing information.”

The panel expects to release a transcript of the interview as soon as 48 hours after it’s over. It is unlikely but possible that certain aspects of the closed-door discussions will be redacted to conceal sensitive information.

Democrats plan to talk about Hicks’s testimony during a public hearing on Mueller’s report with expert witnesses on Thursday, even if the transcript hasn’t been released by then.

Hicks previously testified before the House Intelligence Committee in February 2018 as part of its investigation into Russian interference. She announced her departure as the White House communications director one day before she testified before the panel, which at the time was led by Republicans.