Congress

Impeachment testimony details Republicans’ process fight, in public and behind closed doors

State Department lawyers passed on chance to set boundaries, says Yovanovitch's counsel

Rep. Mark Meadows speaks to reporters outside a scheduled deposition related to the House's impeachment inquiry in the Capitol Visitor Center on Monday. (Tom Williams/CQ Roll Call)

The first release of transcripts of closed-door testimony in the impeachment probe of President Donald Trump on Monday brought into stark relief the procedures governing the depositions — a significant turning point in the inquiry because House Republicans have made questioning the process a cornerstone of their defense of the president.

The arguments Republicans have aired outside of the secure facility in the Capitol basement — that Trump administration lawyers should be present, that the impeachment inquiry is not valid and lacks due process for the president — were clearly represented as a boiling over of frustrations from behind closed doors in the Sensitive Compartmented Information Facility.

Those same arguments were cited by House Oversight and Reform ranking member Jim Jordan and fellow Republican Lee Zeldin at the outset of both the depositions of former U.S. Ambassador to Ukraine Marie Yovanovitch and P. Michael McKinley, a former senior adviser to Secretary of State Mike Pompeo, before lawmakers and counsel from both sides of the aisle began questioning the witnesses in their separate depositions. (The Yovanovitch and McKinley testimonies were released Monday.)

Lawrence S. Robbins, counsel for Yovanovitch, responded to Republican concerns about the lack of administration and State Department legal representation in the room by explaining that his team had given State Department lawyers the opportunity to submit a letter or statement outlining the topics that they claim confidential, but the State Department did not accept the opportunity to be part of the deposition process.

“We have repeatedly asked the State Department’s office of the legal advisor to provide us with a written statement that we could read on their behalf so that their concerns regarding what they term, quote, ‘executive branch confidentiality interests,’ end quote, could be heard by this committee. We have asked them to specify in writing particular topics with respect to which they wish us to point out their interests,”  Robbins said. “And although we were told we would receive such a statement, we have not.”

It appears that while State Department lawyers were not given full access to the depositions, as they wanted, they turned down one potential avenue of exerting a defensive stance to protect the administration from certain topics of questioning.

Robbins went on to describe the tenuous situation that Yovanovitch's testimony put her in, complying with a congressional subpoena but defying a State Department order to not testify voluntarily.

“As we have told both State Department lawyers and committee lawyers, it is not our place to get in the middle of that or to take sides in a dispute between the Congress and the executive branch, and we don’t intend to,” Robbins said.

Following the release of the two transcripts, Intelligence Chairman Adam B. Schiff responded to questions about legal representation in the depositions. Asked why the committees aren’t allowing agency counsel when some witnesses have said they’d appear if such counsel was allowed, Schiff said it is “the uniform policy and practice of the House” not to allow agency counsel, particularly when lawmakers have concerns about those agencies.

“State Department representatives made the claim to their employees that they were being bullied by the Congress, and in fact State Department employees were concerned about being bullied by their own State Department,” Schiff said.

[Transcripts of depositions in impeachment probe]

After one recess marked in the Yovanovitch transcript, issues of transparency also emerged. Republicans pressed Yovanovitch and her counsel on how the Washington Post obtained the text of the ambassador's opening statement. Zeldin, Jordan and Mark Meadows asked in a multitude of ways who released the transcript to the Washington Post and why did they as lawmakers sitting in on the secure deposition not have a copy themselves.

Steve Castor, a Republican staffer for the Oversight panel, explained to the witness and her lawyers that disclosing contents of testimony was prohibited and that the Post's reporting raised “some concern,” among the Republican lawmakers.

But Schiff stepped in to clarify that the limitations on discussing testimony were on lawmakers, not the witness.

“Let me clarify for the members. There’s no prohibition on what this witness can say to us or to the public. The members are prohibited from discussing the contents of the deposition,” Schiff said.

That prohibition agitated Republicans in the McKinley deposition, where they questioned repeatedly why media reports about specifics of previous testimony from George Kent quoting Democratic lawmakers were not a violation of the rules laid out by Schiff himself.

“If we’re going to play by the same set of rules, Mr. Chairman, we need to know what is fair for everyone,” Meadows said.

Foreign Affairs ranking member Michael McCaul pushed further, citing a specific tweet from CNN’s Jeremy Herb, which referenced Kent’s testimony and sourced the information to Oversight Committee Democrat Gerald E. Connolly.

“So do the rules apply or not?” McCaul said. “And what are the sanctions to violation of the rules?”

Schiff moved on, not answering the questions about House Rules violations. As chairman, he has the authority to assert that actions are a violation of House Rules, which could bring consequences down on a lawmaker. He declined to do so, but reiterated the rules governing the proceedings.

After the transcripts of the depositions from Yovanovitch and McKinley were released Monday, Jordan told reporters that he wishes Democrats released former U.S. Envoy to Ukraine Kurt Volker’s private transcript first because it was the first deposition the committees conducted.

He said the Yovanovitch and McKinley depositions did not have much to do with the underlying issue.

“The fundamental facts have never changed, will never change,” Jordan said. Ukraine aid was released and Ukraine never opened an investigation into the Bidens, he said.

Responding to questions about the substance of the transcripts, Jordan said Trump has a right to hire and fire ambassadors and that his decision to let Yovanovitch go seemed to be influenced in part by Ukrainian President Volodymyr Zelenskiy’s opinion of her.

Regarding McKinley leaving over concerns about the politicization of the State Department, Jordan noted that McKinley said he’d be retiring soon anyway. 

But when Schiff asked McKinley if his resignation was partly due to concerns the State Department was being used to dig up dirt on a political opponent, McKinley said that was a fair characterization.

“In 37 years in the Foreign Service and different parts of the globe and working on many controversial issues, working 10 years back in Washington, I had never seen that,” McKinley said.

When asked about whether he was concerned witnesses were defying subpoenas and not showing up for depositions, Jordan pivoted back to criticizing the process.

“If the process was fair, if there were real due process rights, I don’t think you’d see it happening,” he said.

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