DEPUTY SECRETARY OF DEFENSE
1010 DEFENSE PENTAGON
WASHINGTON, DC 20301-1010
OCT 22 2019
The date stamp shows that the deputy secretary of defense, David L. Norquist, sent this warning letter on Tuesday, the day before Ms. Cooper was scheduled to give voluntary, private testimony. That same day, Representative Adam Schiff, Democrat of California and chairman of the House Intelligence Committee, signed a subpoena stating that Ms. Cooper was legally required to appear.
Daniel Levin
White & Case LLP
701 Thirteenth Street, NW
Washington, DC 20005-3807
Daniel Levin, Ms. Cooper’s lawyer, is a former federal prosecutor who held senior positions in both Bush administrations. He served as chief of staff to William P. Barr in his first stint as attorney general in the George Bush administration, and in several roles in the George W. Bush administration, including as chief of staff to Robert S. Mueller III, then the director of the F.B.I., and as the acting head of the Justice Department’s Office of Legal Counsel.
Dear Mr. Levin:
I understand that you have been retained by Ms. Laura Cooper, the Department’s Deputy Assistant Secretary of Defense for Russia, Ukraine, and Eurasia, as her private counsel for a deposition to be conducted jointly by the House Permanent Select Committee on Intelligence, the Committee on Foreign Affairs, and the Committee on Oversight and Reform, “[p]ursuant to the House of Representatives’ impeachment inquiry.” The Department’s October 15, 2019 letter to the Chairs of the three House Committees [Tab A] expressed its belief that the customary process of oversight and accommodation has historically served the interests of congressional oversight committees and the Department well. The Committees’ purported “impeachment inquiry,” however, presents at least two issues of great importance.
Ms. Cooper is a senior specialist in Russia-related issues for the Pentagon. A career official, she was one of many who tried to get the Trump administration to release a large package of American military aid to Ukraine, which Congress had appropriated to help the country resist Russian aggression. That aid package is at the heart of the Ukraine affair.
The first issue is the Committees’ continued, blanket refusal to allow Department Counsel to be present at depositions of Department employees. Department Counsel’s participation protects against the improper release of privileged or classified information, particularly material covered by the executive privilege which is the President’s alone to assert and to waive. Excluding Department Counsel places the witness in the untenable position of having to decide whether to answer the Committees’ questions or to assert Executive Branch confidentiality interests without an attorney from the Executive Branch present to advise on those interests.
This is part of a recurring separation of powers dispute. The House has said that because the Constitution permits it to set its own rules and gives it broad oversight and impeachment powers, it can lawfully exclude an executive branch lawyer who might otherwise instruct witnesses not to answer questions about matters that might be subject to executive privilege.
It violates settled practice and may jeopardize future accommodation. Furthermore, the Department of Justice has concluded that “congressional subpoenas that purport to require agency employees to appear without agency counsel are legally invalid and are not subject to civil or criminal enforcement.” See Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. (May 23, 2019) [Tab B].
Steven A. Engel, a Trump political appointee who heads the Justice Department’s Office of Legal Counsel, produced a memo in May asserting that congressional subpoenas to government officials for testimony without an administration lawyer present are invalid. That theory provides a legal shield for officials who have been subpoenaed but do not want to testify because it means that the Justice Department will not prosecute them for criminal contempt of Congress. But even if this interpretation of the law is accurate — which congressional lawyers contest — it would not, by itself, stop an official from voluntarily choosing to comply.
The second issue is the absence of authority for the Committees to conduct an impeachment inquiry. In its October 15, 2019 letter, the Department conveyed concerns about the Committees’ lack of authority to initiate an impeachment inquiry given the absence of a delegation of such authority by House Rule or Resolution. This correspondence echoed an October 8, 2019 letter from the White House Counsel [Tab C] expressing the President’s view that the inquiry was “contrary to the Constitution of the United States and all past bipartisan precedent” and “violates fundamental fairness and constitutionally mandated due process.”
The full House chamber has not voted for a resolution authorizing an impeachment inquiry, as it did at the start of the Nixon and Clinton impeachment efforts in 1974 and 1998. Mr. Trump’s legal team point to the lack of a vote as a sign that the process is a sham. House Democrats say nothing in the Constitution or House Rules requires such a resolution, and note that impeachments of other federal officials, like judges, have not started with a resolution.
This letter informs you and Ms. Cooper of the Administration-wide direction that Executive Branch personnel “cannot participate in [the impeachment] inquiry under these circumstances” [Tab C]. In the event that the Committees issue a subpoena to compel Ms. Cooper’s appearance, you should be aware that the Supreme Court has held, in United States v. Rumely, 345 U.S. 41 (1953), that a person cannot be sanctioned for refusing to comply with a congressional subpoena unauthorized by House Rule or Resolution.
This is the key question. The White House has ordered executive branch officials not to give documents or testimony to Congress “under these circumstances,” and Ms. Cooper was pointedly reminded of that fact before she received a subpoena. After receiving one, she went on to testify to the committee anyway — as have several State Department employees. The letter leaves ambiguous whether such actions would be insubordinate, or whether a subpoena changes the relevant circumstances.
As yet, none of the witnesses who are current federal employees have been fired. Notably, the Civil Service Reform Act of 1978, forbids interfering with or denying federal employees a right to furnish information to lawmakers.
To reiterate, the Department respects the oversight role of Congress and stands ready to work with the Committees should there be an appropriate resolution of outstanding legal issues. Any such resolution would have to consider the constitutional prerogatives and confidentiality interests of the co-equal Executive Branch, see Tab D, and ensure fundamental fairness to any Executive Branch employees involved in this process, including Ms. Cooper.
Sincerely,
[signed]
David L. NorquistAttachments:
As stated