House Democrats plan to punish President Donald Trump for blocking witness testimony and document production with an obstruction of Congress article of impeachment, but it’s unclear if the witnesses themselves who did not show up to testify will ever face any repercussions.
As part of the investigation into allegations that Trump pressured Ukraine to investigate his domestic political rivals, lawmakers deposed 17 current and former executive branch employees willing to comply with subpoenas despite orders from the White House not to.
But the Intelligence, Oversight and Foreign Affairs committees also subpoenaed 10 witnesses who declined to testify, including acting White House Chief of Staff Mick Mulvaney and his senior adviser Robert Blair, White House and National Security Council attorney John Eisenberg and acting Office of Management and Budget director Russell Vought. Democrats also requested testimony from former national security adviser John Bolton and Energy Secretary Rick Perry but did not subpoena them.
The committees warned witnesses that refusing to testify would be interpreted as an “adverse inference” against them and the president and that they may be held in contempt of Congress. But the House has not gone to court to enforce any subpoenas.
“We are considering what next steps to take in our investigation … and we have not made a decision on that yet,” Intelligence Chairman Adam B. Schiff said Thursday when asked whether the committees anticipated taking contempt action.
‘Focused on the president’
Other Democrats on the investigating committees also didn’t rule out action against the defiant witnesses but acknowledged it’s not been a topic of discussion.
“We’re focused on the president right now, honestly,” said California Rep. Eric Swalwell, an Intelligence and Judiciary member. “I think we need to keep our focus there. That’s what matters the most right now.”
Most Democrats interviewed for this story in recent weeks had the same answer.
Interestingly, it was a former Swalwell intern who called attention during a CNN town hall with Speaker Nancy Pelosi on Thursday night to the fact that witnesses who’ve heeded Trump’s order not to testify are getting away with it.
“Why are lawful subpoenas allowed to be ignored without consequence?” University of Maryland sophomore Ethan Tuttle asked. “And what steps will the House be taking to ensure they have the full cooperation of those with critical information related to the impeachment investigation?”
“When we have issued the subpoenas, the president has — they have objected, and taken it to court,” Pelosi responded.
“Article III of the Nixon impeachment was that he did not respect the subpoenas of Congress,” Pelosi said. “So, the president, in some ways, is self-impeaching, because he is obstructing justice by not honoring the subpoenas.”
Only some subpoenas in court
The speaker’s statement that the president has gone to court to challenge Democrats’ subpoenas is not exactly accurate.
Trump’s personal lawyers did initiate lawsuits before Democrats formally launched their impeachment inquiry to block subpoenas to banks and an accounting firm for the president’s financial records — cases now on appeal at the Supreme Court.
But when it comes to enforcing subpoenas for witness testimony, the onus is on the House to go to court, and they’ve not done so in the Ukraine probe. Democrats have said they don’t have the time or interest to play “rope-a-dope” with the administration, as Schiff has phrased it.
The House did go to court to enforce a subpoena against former White House counsel Don McGahn in connection with the special counsel report on Russian interference and filed an application to get grand jury information from that investigation.
The Trump administration has appealed rulings in those cases that favored the House and is seeking to force the Supreme Court to be the ultimate arbiter of the separation of powers disputes. Democrats argue that the positive ruling in McGahn’s case, even though he was subpoenaed months before the impeachment inquiry started, should signal to other witnesses that they need to comply.
“This is information they should be making available to Congress,” Pelosi said. “This shouldn’t be about the courts.”
The only witness case that has been brought against the House was filed by Charles Kupperman, a former deputy national security adviser subpoenaed to testify on Ukraine. The White House ordered Kupperman not to appear, but understanding that he shouldn’t ignore a lawful subpoena, he went to the judicial system to resolve the dispute between the other two governmental branches.
The House tried to get Kupperman to dismiss the suit by withdrawing its subpoena, arguing in court that he “faces no pending, imminent, or foreseeable injury.” Kupperman has not voluntarily done so. Arguments for whether the case should move forward are scheduled for Tuesday.
Other options not deployed
Democrats have other options to enforce their subpoenas outside of court but have not yet deployed any.
One is Congress’ inherent contempt power to fine or jail witnesses who ignore subpoenas. That would’ve been best used immediately after the subpoenas were defied because it’s meant to make witnesses reconsider. But Democrats decided not to pursue inherent contempt, last used by Congress in 1934, because of concerns about optics.
“We’ve made a judgment that we want the American people to understand that we are pursuing, not arbitrary action, but considered and thoughtful action,” House Majority Leader Steny H. Hoyer told reporters on Oct. 16, saying inherent contempt “may be perceived as arbitrary.”
Two other enforcement tools can still be executed. One would be voting to send criminal contempt referrals to the U.S. attorney for the District of Columbia; prosecution is unlikely since the Justice Department has backed the White House stance on not complying with the impeachment inquiry. The other would be using an obscure appropriations provision to force witnesses to surrender their pay for the duration of time they refused to testify.
“I think we would see what the court decisions say and whether other witnesses continue to violate more subpoenas,” Lieu said.
Raskin said the evidence for impeachment is “so overwhelming” they don’t need to hold up the process for the defiant witnesses but the House will deal with them “in the appropriate way at the appropriate time.”
“A person who violates a subpoena in this process is not off the hook just because the impeachment process moves forward without him or her,” the Maryland Democrat said.
House Oversight member Gerald E. Connolly, who urged leadership to use inherent contempt, said he understands going after the witnesses right now would be a distraction to the effort to impeach Trump. But the Virginia Democrat thinks it sets a bad precedent if the House never seeks to enforce its subpoenas, potentially risking cooperation in future congressional investigations.
“I don’t want anyone to get the impression that all is forgiven and we’re starting with a clean slate,” Connolly said. “No. No. I don’t think so. You put yourself in jeopardy. You calculated that. And I don’t think this should be a cost-free decision for those who chose to defy.”
Todd Ruger contributed to this report.