Obstruction junction

The call between Trump and Ukranian President Volodymyr Zelensky convinced Democrats to launch an impeachment inquiry. 

Now comes the obstruction. 

Last Friday, three House committee chairs wrote Secretary of State Mike Pompeo to inform him that, as part of the impeachment inquiry, the committees would be deposing five State Department officials between October 2 and October 10. These officials are believed to have knowledge about Trump's effort to pressure the Ukranian government to investigate one of his political rivals, Joe Biden. The list includes State Department Counselor T. Ulrich Brechbuhll, who listened in on the call between Trump and Zelensky, and Special Representative for Ukraine Kurt Volker, who was texting with Trump's personal attorney, Rudy Giuliani, about the effort. 

The committee chairs wrote that "the failure of any of these Department employees to appear for their scheduled depositions shall constitute evidence of obstruction of the House's impeachment inquiry."

On Tuesday, the day before the first deposition was scheduled, Pompeo wrote back and announced that none of the State Department staff would show up for their depositions. 

Pompeo does not describe any legal basis for denying the request. Rather, he claims that the House was asking for the State Department's "voluntary" cooperation. Pompeo says he will not provide it because the depositions "can only be understood as an attempt to intimidate, bully, and treat improperly the distinguished professionals of the Department of State." 

Pompeo gives no indication of when, or if, he will make these officials available. But he does say that, if the officials ever do appear for their depositions, he will insist on the participation of "State Department counsel." The State Department lawyers would protect "potentially privileged information related to the conduct of diplomatic relations." 

Let's be clear: Secretary of State Mike Pompeo is obstructing an impeachment investigation into the President of the United States. 

Pompeo plays dumb

Pompeo is not only obstructing Congress. He's also obstructing the public's understanding of his role in the scandal. 

Appearing on ABC on September 22, Pompeo was asked what he knew about the call. He replied that the whistleblower's complaint had just been released and he was still reviewing it. 

Pompeo neglected to mention that he was on the call. A senior State Department official told the Wall Street Journal on Monday that "Pompeo was among the administration officials who listened in on the July 25 phone call between President Trump and Ukraine’s president."

Pompeo's presence on the call undermines Trump's claim that the purpose of the call was to congratulate Zelensky on winning the presidency. The participation of the Secretary of State is highly unusual and suggests Trump considered the call extremely important. 

On Tuesday, the committee chairs cited Pompeo's participation in the call in their response to his letter. They noted that "Secretary Pompeo is now a fact witness in the House impeachment inquiry" and warned him to "immediately cease intimidating Department witnesses in order to protect himself and the president."

Not everyone at State is playing Pompeo's game

Notwithstanding Pompeo's letter, some current and former State Department officials plan on cooperating with Congress. Special Representative for Ukraine Kurt Volker, who recently stepped down, will appear for his deposition on Thursday, CNN reports. Ambassador Masha Yovanovitch, a career diplomat who was abruptly recalled from her post in Ukraine, will appear on October 11.

Meanwhile, the State Department Inspector General "has requested an urgent Hill briefing with relevant committees [Wednesday] related to Ukraine."

Rudy wants to rumble

Trump's personal attorney, Rudy Giuliani, signaled yesterday that he would also obstruct the impeachment investigation. Giuliani was the point person in Trump's effort to pressure the Ukranian government to investigate Biden.

On Monday, the House committee chairs subpoenaed Giuliani. They wrote that, as part of the impeachment inquiry, they are investigating "credible allegations that you [Giuliani] acted as an agent of the President in a scheme to advance his personal political interests by abusing the power of the Office of the President." 

The subpoena requires Giuliani to produce all documents relevant to that scheme. 

"Your failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute evidence of obstruction of the House's impeachment inquiry," the committee chairs wrote. 

Giuliani, in response, indicated that he might not comply. "I have received a subpoena signed only by Democrat [sic] Chairs who have prejudged this case. It raises significant issues concerning legitimacy and constitutional and legal issues including, inter alia, attorney client and other privileges. It will be given appropriate consideration," Giuliani tweeted. 

Of course, it is not up to Giuliani to "consider" complying with the subpoena. He is required to do so by law. 

How Congress can play hardball

The administration has been stonewalling Congress' oversight efforts for months. Pompeo and Giuliani are just adopting this strategy in the context of an official impeachment inquiry. 

What can Congress do about it?

Up until this point, Congress has attempted to enforce its subpoenas through the courts. This tactic may eventually be successful, but it takes a very long time. This serves the Trump administration's interests. They are looking to run out the clock until the 2020 election. 

In response to a gross abuse of presidential power and a subsequent effort to cover it up, Congress has another option: inherent contempt. 

Inherent contempt, according to a report by the Congressional Research Service "is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be 'obstruct[ing] the performance of the duties of the legislature.'" It can be used "not only to combat subpoena non-compliance, but also in response to other actions that could be viewed as 'obstructing' or threatening either house’s exercise of its legislative powers."

How does inherent contempt work? First, there is "a House or Senate resolution authorizing the execution of an arrest warrant by that chamber’s Sergeant-at-Arms." The individual is then taken into custody and brought before the House or Senate for a hearing "in which allegations are heard and defenses raised." If the legislative body finds the individual guilty of contempt, "the House or Senate may then direct that the witness be detained or imprisoned until the obstruction to the exercise of legislative power is removed." 

The Supreme Court has ruled that inherent contempt is "an essential and appropriate auxiliary to the legislative function." The Senate used inherent contempt to compel the cooperation of a witness as part of its investigation into the Teapot Dome scandal in 1927, and the Supreme Court affirmed the power of a legislative body to do so.

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.

Giuliani, a private citizen, is a more likely candidate for inherent contempt than Pompeo, a member of Trump's cabinet who was confirmed by the Senate. 

Congress has not used its inherent contempt powers since the 1930s. But these are extraordinary times. 


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