Trump threat lacks teeth to block impeachment witnesses

A steady stream of current and former government officials have been testifying for the House impeachment inquiry in recent days, highlighting what legal experts say are the limits of the White House’s pledge to not cooperate with the investigation.

Legal experts who spoke to The Hill said that despite the White House's tough stance, if government officials receive a subpoena from Congress their best option often is to comply— even if their superiors tell them not to.


“I would say as a matter of course that for White House staff or other administration staff, it's no defense to say a president or somebody else in government told you not to testify,” Peter Kadzik, a former assistant attorney general in the Obama administration who is now a partner at Venable specializing in congressional investigations, told The Hill.

“They really have no choice," Kadzik added.

President TrumpDonald John TrumpGOP senators balk at lengthy impeachment trial Warren goes local in race to build 2020 movement 2020 Democrats make play for veterans' votes MORE has blasted House Democrats' impeachment probe and in a blistering letter last week White House Counsel Pat Cipollone said that the executive branch would refuse to comply with congressional requests for documents or testimony.

But since that letter, House lawmakers have taken depositions from a slew of individuals, including two sitting State Department officials and a former White House adviser, all of whom decided to defy the president's stance and testify on whether Trump and his inner circle sought to pressure Ukraine’s leaders into investigating a political rival, former Vice President Joe BidenJoe BidenGOP senators balk at lengthy impeachment trial 2020 Democrats make play for veterans' votes 2020 Dems put focus on stemming veteran suicides MORE, and his son Hunter.

Adding to pressure on witnesses, Democrats warned that they would see any attempts to stonewall the investigation as potential obstruction of justice.

"Despite the White House’s stonewalling, we see a growing body of evidence that shows that President Trump abused his office and violated his oath to ‘protect, preserve and defend the Constitution,'" House Speaker Nancy PelosiNancy PelosiOvernight Health Care: Trump officials making changes to drug pricing proposal | House panel advances flavored e-cig ban | Senators press FDA tobacco chief on vaping ban Speaker Pelosi, it's time to throw American innovators a lifeline Why Americans must tune in to the Trump impeachment hearings MORE (D-Calif.) said in response to the letter last week.

“The White House should be warned that continued efforts to hide the truth of the President’s abuse of power from the American people will be regarded as further evidence of obstruction.”

Defying a congressional subpoena could open potential witnesses up to legal consequences, experts said.

"They’ve got to go and testify, and potentially incur the wrath of the president, or potentially they could be held in contempt of Congress,” Kadzik said.

There are multiple laws protecting government employees who provide information to Congress, especially when they're acting as a whistleblower, which adds to the difficulty the White House faces as it tries to frustrate the investigation.

The day Cipollone sent his letter to House leaders, Gordon Sondland, the U.S. ambassador to the European Union, was set to testify voluntarily. His testimony was abruptly blocked by the State Department hours before his scheduled appearance.

After House Democrats issued a subpoena to Sondland, he later agreed to comply and is now scheduled to give testimony on Thursday.

The White House has held some leverage over Sondland. The ambassador's lawyers have told lawmakers that he still does not have authority to share documents relating to the inquiry without the permission of the State Department.

But the slew of witnesses shows that current and former officials see little upside in defying congressional subpoenas or are eager to raise concerns about the White House's conduct, or some combination of the two.

This week alone, Fiona Hill, a former special assistant to the president testified on Monday, after being subpoenaed. She was followed by George Kent, a top State Department official, on Tuesday.

The latest official to testify was Michael McKinley, who was deposed on Wednesday. McKinley was an aide to Secretary of State Mike PompeoMichael (Mike) Richard PompeoProtests serve as backdrop to Erdoğan's visit to White House Chris Wallace: Taylor testimony 'very damaging to President Trump' The Hill's 12:30 Report: Democrats open televised impeachment hearings MORE before resigning that post last week.

The White House has fought congressional efforts to investigate the administration at every turn by refusing to turn over documents and blocking testimony by asserting executive privilege — even over people who aren’t a part of the administration.

On Tuesday, Vice President Pence, Trump's personal attorney Rudy GiulianiRudy GiulianiSenate GOP waves Trump off early motion to dismiss impeachment charges Key takeaways from first public impeachment hearing Diplomat ties Trump closer to Ukraine furor MORE and the White House Office of Management and Budget all rejected House requests for documents or testimony.

Cipollone’s letter last week asserting that the Democrats’ handling of the inquiry had robbed the president of due process rights and vowing not to comply escalated the White House's fight with Democrats.

But some legal experts said that the letter came off more as a political document than a well-reasoned legal argument, undercutting any pressure on officials not to testify.

“I actually taught that letter to my class last week. In a word, I thought it was preposterous,” said Jessica Levinson, a professor at Loyola Law School.

“I thought that it was a political letter from a lawyer,” she added.

Andy Grewal, a law professor at the University of Iowa, said that the letter was more an attempt to score political points in the fight with House Democrats than a reasoned legal argument to prevent officials from testifying.

“This sort of document publicly released is more in the nature of advocacy as opposed to a brief that you would file with a court,” Grewal said.

"My understanding is that he's dressing up the legal arguments as a political maneuver to encourage better process.”