House investigators release transcripts of closed-door testimony

WASHINGTON >> House impeachment investigators began moving witness testimony into the open for the first time today, releasing transcripts of private questioning taken last month with the former U.S. ambassador to Ukraine and a top diplomat who advised Secretary of State Mike Pompeo.

The ambassador, Marie Yovanovitch, told Democrats and Republicans during her deposition last month that she believed she was the victim of a conservative smear campaign that sought, incorrectly, to portray her as disloyal to President Donald Trump and prompted him to remove her. The transcript shows that she also detailed what she knew of attempts by Trump’s private lawyer Rudy Giuliani and his allies to work with the former Ukrainian prosecutor general to “do things, including to me.”

The diplomat, Michael McKinley, described to investigators how he pressed top State Department officials to publicly support Yovanovitch as she was dragged through the news. According to the transcript, McKinley spoke directly with Pompeo and other senior officials this fall about issuing a public statement about Yovanovitch’s professionalism, but was eventually told by a department representative that they did not want to “draw undue attention” to Yovanovitch.

The House voted on a resolution last week that directed the House Intelligence, Foreign Affairs and Oversight and Reform committees to release the transcripts with necessary redactions and begin to move other findings into public view. Democrats are expected to publicize transcripts of additional depositions, including with witnesses more central to their case, this week. They could begin public hearings with some of the witnesses as soon as next week.

“As we move towards this new public phase of the impeachment inquiry, the American public will begin to see for themselves the evidence that the committees have collected,” the three Democratic committee leaders involved in the inquiry said in a statement accompanying the transcripts. “With each new interview, we learn more about the president’s attempt to manipulate the levers of power to his personal political benefit.”

Rep. Adam Schiff, D-Calif., the Intelligence Committee chairman who is leading the inquiry, told reporters this afternoon that the committee would release two more transcripts Tuesday of interviews with two key figures in the inquiry. Those figures are Kurt Volker, who served as special envoy to Ukraine, and Gordon Sondland, the ambassador to the European Union.

Republicans involved in the inquiry did not immediately comment. Trump sought to undermine the transcripts before they were released by charging, without evidence, that Schiff would “change the words that were said to suit the Dems purposes.” The transcripts were reviewed by Republicans in the House and by the witnesses themselves, and there is no independent reason to believe they are not faithful accounts of the Democratic and Republican questioning that occurred behind closed doors.

The transcript release came as a new batch of witnesses were refusing today to sit with investigators. The White House’s top national security lawyer declined to appear for a scheduled deposition this morning, saying he would wait until a federal judge rules on whether Trump’s closest advisers have to answer questions from congressional investigators.

The lawyer, John A. Eisenberg, played a central role in dealing with the fallout at the White House from a July call between Trump and the Ukrainian president, in which Trump asked the Ukrainians to conduct investigations that could benefit him politically.

The committee subpoenaed Eisenberg to appear for questioning, but the White House informed Eisenberg’s lawyer Sunday that Trump was directing him not to testify. The White House invoked absolute immunity, a sweeping and contested form of executive privilege that holds the president’s closest advisers are not obligated to cooperate with Congress.

“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,” William A. Burck, a lawyer for Eisenberg, wrote to House leaders this morning. “Accordingly, Mr. Eisenberg will not be appearing for a deposition at this time.”

Eisenberg was not the only witness defying House investigators today. Robert Blair, the national security adviser to acting White House chief of staff Mick Mulvaney; Michael Ellis, Eisenberg’s deputy; and Brian McCormack, the former chief of staff to the energy secretary, Rick Perry, were all expected to skip scheduled depositions, despite receiving subpoenas.

The objections were not unexpected, but nonetheless showed the limits House Democrats face as their fact finding tries to edge closer into Trump’s inner circle. Additional witnesses scheduled to testify this week are likely to follow suit, either out of loyalty to Trump or because of complicated legal issues posed by their proximity to the president.

With their inquiry moving at a rapid pace, Democrats have made clear they do not intend to wait around for the courts to settle the legal issues raised by Eisenberg and others to secure their testimony. Investigators are trying to complete most private witness depositions this week, before beginning to make the case in public next week that Trump used the levers of his office to pressure Ukraine into investigating Democratic rivals for his own political gain.

“We are not going to delay our work,” Schiff said. “That would merely allow these witnesses and the White House to succeed in their goals, which are delay, deny and obstruct.”

Schiff indicated he was cataloging defiance of subpoenas as further evidence of Trump obstructing Congress, an offense they view as potentially impeachable itself. And they plan to assume that any witness the White House blocks would have confirmed details of the emerging case against Trump.

Eisenberg’s decision heightens the importance of an unusual lawsuit filed by Trump’s former deputy national security adviser, Charles M. Kupperman, who faced the same situation as Eisenberg: a subpoena from the House and an instruction from Trump not to comply with it. Last month, Kupperman sued, asking a judge to determine whether he had to testify. Oral arguments could be heard in that case Dec. 10.

The suit will have implications that go beyond Kupperman and Eisenberg. Kupperman’s lawyer, Charles J. Cooper, also represents another highly sought-after witness, the former national security adviser, John Bolton. If House investigators subpoena Bolton, Cooper is likely to also ask a judge to determine whether he has to testify.

Blair, who listened in on the July 25 call, is likely to have been privy to key details about the president’s direction to Mulvaney to freeze $391 million in security assistance to Ukraine this summer. His lawyer indicated over the weekend he would not cooperate.

Ellis could offer a direct account of the decision to lock down a reconstructed transcript of the call, and possibly of how the White House legal team handled reports made by national security officials alarmed by what they saw transpiring with Ukraine. A lawyer for Ellis said this morning that he had been directed by the White House not to cooperate and would not appear for an afternoon deposition.

And as Perry’s chief of staff, McCormack is said to have been involved in key events under scrutiny. He is now working at the Office of Management and Budget. An administration official indicated today that neither he, nor other White House budget office appointees, would speak with investigators this week.

The White House did not appear to try to assert that any of the three, who are further removed from Trump, were absolutely immune from testimony. But correspondence released by the House Intelligence Committee indicated that Blair and Ellis had been directed not to appear because investigators would not allow a Trump administration lawyer to participate in the depositions in the hearing room.

Other witnesses have ignored or defied similar instructions. Democrats told lawyers for Blair and Ellis that they viewed it as just one of several “baseless procedural challenges” to the House by the White House. They pointed out that when Republicans were in charge, the House had set identical rules.