People Who Illegally Withheld Duly Appropriated Funding Refuse to Explain to Congress Why

CNN reported this morning that all four witnesses who were called to testify today blew off the request under both Executive Privilege claims (for John Eisenberg) and other complaints that the Administration won’t be able to have a lawyer present.

All four White House officials who are scheduled to give depositions on Monday during the House’s impeachment inquiry won’t show up, as a source with knowledge of the situation tells CNN that National Security Council lawyers John Eisenberg and Michael Ellis will not testify.

The two officials will join Robert Blair, assistant to the President and senior adviser to the acting White House chief of staff Mick Mulvaney, and Brian McCormack, associate director for natural resources, energy & science at the Office of Management and Budget, in not testifying on Monday, CNN reported earlier. Energy Secretary Rick Perry, who was scheduled to appear Wednesday, will not participate in a closed door deposition, an Energy Department spokesperson said Friday.
An administration official says Eisenberg isn’t showing up due to executive privilege while Blair, Ellis and McCormack aren’t going to appear because they won’t be able to have an administration lawyer present.

This is being treated like other refusals to show up, but I think it’s not.

First, if Eisenberg is claiming only Executive Privilege, those claims will quickly expose the President to evidence of guilt that Senators are busy trying to explain away. That’s because he should only have Executive Privilege for stuff that actually involves the President. And given that he wasn’t on the call with Volodymyr Zelensky, he shouldn’t have it, at all, here, unless the President wants to claim that before Eisenberg engaged in a cover-up of Trump’s extortion, he asked the President for guidance first.

In fact, if Eisenberg showed up, he’d likely have to invoke the Fifth Amendment rather than Executive Privilege. And once someone does that, it’s usually child’s play to force that person to resign from government service.

As for the others, Robert Blair and Brian McCormack were being called to explain how the funds duly appropriated by Congress got withheld.  Withholding those funds is a crime, as Mick Mulvaney helpfully admitted (in public discussions that likely void any Executive Privilege claims over the decision to withhold the funds). But it’s also a crime not to explain to Congress why you withheld funds they told you to spend.

In other words, for at least three of these men, the excuses for not testifying probably amount to crimes in and of themselves, either for the President (if he really were to claim Executive Privilege over Eisenberg’s efforts to cover-up his crime) or for the men themselves.

So while this seems like the same old obstruction, I think it may be a new kind of criminally problematic obstruction.

Which may be why Adam Schiff says the first public witnesses are going to be those who illegally withheld this funding.

35 replies
  1. earlofhuntingdon says:

    Hard to see how EP survives an impeachment investigation. But Trump will sit on his brain until the Supremes tell him his argument fails. That won’t be a slam dunk with Thomas, Gorsuch and Kavanaugh on the bench. So the more evidence of multiple crimes that Congress can make public ahead of time, the harder the environment is for the conservative majority to tell Congress to pound salt.

    • bmaz says:

      It should not in any currently known legal universe. That is a part of why I have been screaming to open the official inquiry months ago. The litigation could have, and should have, started then. Instead, here are the House Dems and Pelosi getting screwed by the obvious. They were, and continue to be, derelict.

      • earlofhuntingdon says:

        Amen. How much of a pity would the Dems’ leadersheep consider if it this late-starting process were mooted by the results of November 2020? A number of their largest donors would probably be real happy – and generous.

        • timbo says:

          The dereliction may become clearer if the DP becomes irrelevant after the 2020 election. Here, then, now, sedition is a obvious danger to our Republic. The caliber of the DP leadership in either not recognizing these obvious dangers earlier, and/or lacking enough integrity, lacking spark to actually keep our Constitution alive is what we play with now. It is, again, to be hoped, that the base corruption of the Trump regime does not come to be the paradise of worse and worse evils… but failing to recognize that danger earlier, failure to use the mechanisms to correct this within the Constitutional framework as early as possible, should not be seen to be some sort of cagey political sense upon the DP leaders who now scramble to get ahead of the danger… now that they rightly perceive that their own personal power and fortunes are endangered.

          • Newt Ron Bomb says:

            Agreed. But when they started in January I don’t think anyone predicted that Trump was going to 100% stonewall any cooperation into oversight altogether.

            • bmaz says:

              You must be new here, because we knew!

              All joking aside, I was pushing to start a formal inquiry for most of the year for exactly this reason, i.e. not because it would lead to the removal of Trump, but because having it creates the strongest legal footing in courts possible to gather evidence and testimony, and to overcome across the board obstruction by the Trump Administration. It was needed to accomplish even common oversight, much less inquiry into the crimes and malfeasance. But when you have to resort to the courts, and you do, it takes time, and the House Democrats wasted an immense amount of it.

              Also, as far as I can tell, this is your first comment here, so welcome to Emptywheel. It is a great crowd, please join in often. And that is a great screen name.

      • dude says:

        Do you have any idea how much time is involved in moving arguments (like the New York / tax subpoena argument) from the latest Federal appeals ruling to the Supreme Court? And how does that compare to the time it will take to move Congressional arguments on witness subpoenas to the Supreme Court?

        • BobCon says:

          The irony is that the Democratic donors in that scenario won’t match what the GOP gets from their donors. They never do. The Democratic establishment will be locking themselves into another structural disadvantage.

      • BobCon says:

        While I don’t think the Supremes will rule for a crazy EP interpretation, I can see them giving Trump a very long leash before he has to comply, very possibly with a long iterative process where he decides various pieces of evidence don’t meet the definition of what the House subpoenaed, followed by more court challenges.

        Which reinforces the point that Pelosi’s delay was idiotic. She pushed the confrontation into a period where it helps Trump and where the compressed timeline hurts the Democrats.

        She simply refuses to accept the lengths Trump will go to fight, the ease with which the GOP joins him, and the unwillingness of the media to report the truth.

  2. Geoff says:

    What I read was that Eisenberg was claiming “absolute immunity” at the behest of the White House. A claim that has never held up in court, but of course, has only been shot down seldom enough to make sure that it can’t be used as a precedent. So, off to SCOTUS we go apparently. I don’t know if AI claims are equivalent to EP claims.

    • earlofhuntingdon says:

      Roberts, for example, is pretty conservative, but the broader the claim of presidential immunity from ALL investigation and process – for himself and anyone he touches, including all his aides and his businesses – the more likely it is he will vote against it.

      Trump is claiming, in effect, that the world is subject to the same outrageous limits he imposes in his NDAs. Bill Barr might accept that, but I don’t think a majority of the Supremes will. But the argument has to get to them and they have to decide expeditiously.

      • Geoff says:

        This is what chaps my hide (and clearly bmaz’s as well.) The ridiculous avoidance and stall tactics of Pelosi have now hamstrung the effort to get rid of the cancer residing in the office of the presidency. If that cancer is re-elected, I will never forgive Pelosi. But we are surely stuck with voting him out as our last and only hope, since no matter what happens at this point, it won’t be enough and won’t be in time to actually impeach him, let alone have the trial push through to conviction by the senate. And it could have been enough if they had simply started the inquiry, issued the subpoenas and went from there when Mueller handed them the road map. There is enough material that we should have been able to shame 20 republican senators into doing the right thing. Now, I dont see how that happens, as they have closed ranks even tighter. I hope this is just a huge fail, and doesn’t end up a cataclysmic one. I hate this feeling of being angry and totally irritated every day for three years running, especially in light of how I never though I could feel worse than I did during the GWB admin. He looks like a daft saint in comparison, despite being a war criminal.

        • milestogo says:

          And if we fail to put this president in prison, it’s only going to be worse next time when a smarter psycopath takes the Republican reigns and wins. I’m hoping Eisenberg sees justice as well. From reporting his efforts are as brazen as the rest of them perhaps more egregious in that he should have known better.

          • timbo says:

            Or Pompeo simply declares himself ‘in charge’ in the midst of ‘governmental crisis’. Oh, how Diane Feinstein ever believed that bullying dissembler… well, the Republic has definitely seen a better Congress and a stronger Senate than the weakness shown of late.

        • Wm. Boyce says:

          W was responsible for a lot more deaths, including many of the recent ones in the Middle East than the creature in power now.
          I think this Ukraine thing is spinning out-of-control for the executive branch, and that Schiff is going to get it right. Whether it’s overwhelming enough to have spineless Repug senators do the right thing is another question.

        • timbo says:

          Agreed. If Trump is re-elected, Pelosi is finally out. But what else will be ‘out’ at that point? One can almost smell the stench should the DP collapse in the 2020 election.

          • Bob says:

            Here’s a different take –

            Pelosi can count votes. I think that she is trying to do two things first drag out the impeachment in order to cover the repubs with mud – mud of their own making. And second to tilt the coming election to the Dems. After all who wants a stinking pig in office. ?

            • bmaz says:

              Pelosi doesn’t want impeachment at all, and is trying with all her might to speed it up, not slow it down.

  3. sproggit says:

    Obviously I don’t know what I’m talking about, but would it be safer for the witnesses and Trump to have them turn up, confirm their name for the record, then rigorously claim no knowledge of anything outside their remit and take the 5th Amendment for the rest? Yes, the press would have a field day with people refusing to answer questions. Yes, the optics might look bad for a brief period of time.

    But by refusing to answer all questions, not only is the President making it very clear that he thinks he has something to hide, but he is actually making it much easier for Democrats to be able to point to this conduct and claim “Obstruction of Justice”.

    Clearly there are subtleties and strategies here, but it would be really fascinating if someone could write an article setting out the pro’s and con’s: “To testify or not testify, that is the question…”

    • skua says:

      “In fact, if Eisenberg showed up, he’d likely have to invoke the Fifth Amendment rather than Executive Privilege. And once someone does that, it’s usually child’s play to force that person to resign from government service.” – EW

      Some of those witnesses may wish to have futures working in government. Their position, that answering questions about their actions when working in the government might reveal that they have committed crimes, would be obstacles to a continuing career in government.

    • timbo says:

      No. That’s simply a statement that prolongs this process. What Parnas’ lawyers are interested in is what will Congress give them (like limited immunity) in exchange for him showing up and testifying. And even there, with folks like Parnas, there is a risk as some scammers/players don’t even understand any longer when they are lying…

      • Frank Probst says:

        This guy has zero connections to the government and no hope of winning any sort of privilege fight in court. @bmaz has written a lot about how “inherent contempt” is never going to be used to haul someone into custody, but it MIGHT be used to impose serious fines on people who don’t comply with Congress’s subpoenas. To me, this looks like a best possible test case of that idea.

            • Frank Probst says:

              Agree with both of you. Zero “official” connections would be more accurate. I’ll humbly eat crow over that one.

                • bmaz says:

                  Let me say this about that above: 5th Amendment privilege is a funny thing, the only way you truly preserve it is to not say anything at all. You don’t get, necessarily, to invoke it selectively. The proverbial “door” is quite easy to open, and smart targets/defendants with competent defense attorneys get nowhere near that door.

                  Secondly, Congress itself cannot give competent immunity. That has to be signed off on by the DOJ and the court. Which will never happen with this DOJ.

  4. Frank Probst says:

    I obviously know very little about Constitutional law, but the House is supposed to have “the power of the purse”, and these people were the ones in charge of disbursing duly-appropriated funds from “the purse”. They should be at the very top of the list of people that Congress can call in for questioning any time they want to.

  5. rich ellison says:

    Marcy and Gang:

    Please explain in re this Ukraine biz that QPQ is not nearly as accurate (or politically sexy) as ‘extortion and bribery.’


Comments are closed.