On Friday, despite the administration’s directive not to participate in the congressional inquiry, former U.S. ambassador to Ukraine Marie Yovanovitch went to Capitol Hill under subpoena and told investigators how she believed her departure was a direct result of Trump’s pressure on the State Department to have her removed from her post.
U.S. ambassador to the European Union Gordon Sondland plans to follow suit on Thursday, testifying pursuant to a congressional subpoena, and is likely to reveal details of his discussions with the commander in chief, who has not yet invoked executive privilege to try to prevent Sondland from doing so, according to a person familiar with the ambassador’s planned appearance.
The diplomats are among several current and former officials that various congressional committees have identified as witnesses as those panels explore whether Trump leveraged U.S. military aid and a White House meeting to pressure Ukraine’s president to investigate Trump’s political rivals.
The appearances underscore the limits of the administration’s power to withhold information from lawmakers — particularly when lawmakers are dealing with witnesses eager to cooperate and are willing to use subpoenas to compel them to do so.
The administration could fire the diplomats who defy its wishes and testify, or it could sue to block them from appearing on Capitol Hill, legal analysts said. But lawsuits like that are unlikely to succeed, legal analysts said, and the witnesses might view termination as a less significant consequence than those that can come from defying a subpoena: fines or jail time.
“There’s more risk to them by not testifying than by going ahead and testifying and incurring the wrath of the president,” said Peter J. Kadzik, a former head of the Justice Department’s Office of Legislative Affairs who is now in private practice at Venable.
Trump’s executive branch had long feuded with its legislative counterpart, with each side taking dramatic steps to pry loose information or keep it secret.
The administration, for example, blocked former White House counsel Donald McGahn from testifying about his tenure, despite a subpoena, and Congress responded with a federal lawsuit. Attorney General William P. Barr and Commerce Secretary Wilbur Ross refused to turn over documents related to the administration’s bid to get a citizenship question added to the 2020 Census, and Democratic lawmakers voted to hold them in contempt.
The administration has said publicly that it will not participate in the impeachment inquiry. In a fiery letter this week, White House counsel Pat Cipollone called the effort “invalid” and executed “in a manner that violates fundamental fairness and constitutionally mandated due process.”
“Never before in our history has the House of Representatives — under the control of either political party — taken the American people down the dangerous path you seem determined to pursue,” Cipollone wrote.
Even before the letter, cracks had emerged in the administration’s strategy of noncompliance.
Former special U.S. envoy to Ukraine Kurt Volker resigned from his post before sitting for a 10-hour deposition with lawmakers last week — essentially taking off the table possible professional consequences for defying his superiors. He also turned over explosive text messages showing how State Department officials coordinated with President Trump’s personal lawyer to leverage a potential meeting between Trump and his Ukrainian counterpart for a promise that the Ukrainians would pursue an investigation that might benefit Trump’s reelection campaign.
Sondland, the U.S. ambassador to the European Union, flew back to the United States this week for planned testimony. But in the early-morning hours on the day he was scheduled to appear, the State Department ordered him not to testify.
Robert Luskin, his lawyer, said in a statement at the time that Sondland was “profoundly disappointed” but was “ready to answer the Committee’s questions fully and truthfully.” Lawmakers soon issued a subpoena, and Sondland’s lawyers said Friday he planned to testify next week — though he would not turn over documents that belong to the State Department.
The person familiar with the matter, who spoke on the condition of anonymity to discuss the politically charged and ongoing investigation, said Sondland felt that when his appearance was voluntary, he had to honor the State Department directive not to testify. But the subpoena, the person said, changed the legal calculus.
“Once he gets a subpoena, that’s lawful legal process. He’s required to appear,” the person said, asserting that the decision was not the result of any strategizing with the White House.
The person said that Sondland would appear without a State Department lawyer — because lawmakers would not allow one to be present — and that he would detail conversations with Trump because the president had not proactively asserted executive privilege.
The person said Sondland believed his testimony would be “generally helpful” in that Sondland did not fully understand that an investigation Trump wanted Ukraine to conduct was into former vice president Joe Biden and his son, and thus would benefit Trump’s reelection campaign.
“They didn’t understand this directly related to something personal, like dirt on the Bidens,” the person said.
The person said Sondland would not turn over documents because he believed that might violate the Federal Records Act. Sondland, the person said, was trying to “steer as straight a line as [he] can between competing demands.”
Similarly, the chairs of the House Intelligence, Foreign Affairs and Oversight committees said in a statement that Yovanovitch had been told by the State Department not to appear for her voluntary interview Friday. The chairs said that direction ultimately came from the White House. They said the House Intelligence Committee then issued a subpoena, and Yovanovitch complied.
“This duly authorized subpoena is mandatory, and the illegitimate order from the Trump Administration not to cooperate has no force,” the chairs said in a statement. “Any efforts by Trump Administration officials to prevent witness cooperation with the Committees will be deemed obstruction of a co-equal branch of government and an adverse inference may be drawn against the President on the underlying allegations of corruption and coverup.”
Gregory A. Brower, a former FBI assistant director for congressional affairs now in private practice at Brownstein Hyatt Farber Schreck, said that if the White House fired an employee for testifying, the employee might have some legal protection. Former employees, too, can essentially testify about whatever they want, as the White House has almost no way to punish them for it, he said.
“Let’s say they go up and they talk about conversations with the president and perhaps other things the administration might argue are privileged. There’s no remedy,” Brower said. “Unless we’re talking about improper disclosure of classified info., there’s no crime, there’s no contract.”