It was apparent from the day that Donald Trump was elected and he and his idiot son-in-law, Jared Kushner, didn’t even know that it was their responsibility to hire all new White House staff, that the civil servants, who did know procedures, were the only ones who were going to keep the wheels of government turning. Now, it is equally apparent that the career officials are the ones who are going to save our bacon. Laura Cooper, the Pentagon official in charge of Ukraine policy, testified voluntarily before the House impeachment inquiry committee Wednesday, and Adam Schiff also signed a subpoena requiring her appearance, apparently out of an abundance of caution — although that particular term of art is inapplicable nowadays. Nothing can get done in Washington these days unless it is tight as a drum and nailed shut, in this political atmosphere. Any possible loophole will be explored and exploited.
That’s the case here, where David L. Norquist, the Deputy Secretary of Defense, attempted to challenge Cooper’s right to testify on the theory that department lawyers needed to be present. Below is the entire letter, and annotations to it are available at the New York Times:
DEPUTY SECRETARY OF DEFENSE
1010 DEFENSE PENTAGON
WASHINGTON, DC 20301-1010
OCT 22 2019
Daniel Levin [Cooper’s attorney]
White & Case LLP
701 Thirteenth Street, NW
Washington, DC 20005-3807
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.
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.
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].
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.”
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.
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.
David L. Norquist
Looks like this is all going to boil down to a constitutional crisis, starting with a tooth and nail procedural battle every step of the way — but you already knew that. Expect this sort of thing to be routine, as Trump & Cabal fight desperately to stay in power.