WASHINGTON — The White House’s top national security lawyer declined to appear for a scheduled deposition on Monday morning, saying he would wait to hear what a federal judge ruled on whether President Trump’s closest advisers have to answer questions from congressional investigators.
The lawyer, John A. Eisenberg, played a central role in dealing with the fallout at the White House from a July call between President Trump and the Ukrainian president, in which Mr. Trump asked the Ukrainians to conduct investigations that could benefit him politically.
The committee subpoenaed Mr. Eisenberg to appear on Monday morning for questioning, but the White House informed Mr. Eisenberg’s lawyer in recent days that Mr. Trump would block his testimony by invoking “constitutional immunity,” a sweeping form of executive privilege it has been claiming for officials who have the closest interactions with the president.
Mr. Eisenberg’s decision heightens the importance of an unusual lawsuit filed by Mr. Trump’s former deputy national security adviser, Charles M. Kupperman, who faced the same situation as Mr. Eisenberg: a subpoena from the House and an instruction from Mr. Trump not to comply with it. Last month, Mr. Kupperman sued, asking a judge to determine whether he had to testify. Oral arguments could be heard in that case on Dec. 10.
“Mr. Eisenberg, as a lawyer and officer of the court, will a abide by whatever final decision the federal judiciary reaches on the dispute between the executive and Congress,” said William A. Burck, a lawyer for Mr. Eisenberg.
The suit will have implications that go beyond Mr. Kupperman and Mr. Eisenberg. Mr. Kupperman’s lawyer, Charles J. Cooper, also represents another highly sought after witness, the former national security adviser, John R. Bolton. If House investigators subpoena Mr. Bolton, Mr. Cooper is likely to also ask a judge to determine whether he has to testify.
As the White House’s top national security lawyer, Mr. Eisenberg dealt directly with complaints from White House officials after Mr. Trump’s call with President Volodymyr Zelensky of Ukraine. Witnesses have told House investigators that it was Mr. Eisenberg’s decision to store a transcript of the call on a special network used for the government’s most sensitive national security secrets. At least one witness has said she told Mr. Eisenberg that one of Mr. Trump’s political appointees could be a counterintelligence risk, but Mr. Eisenberg declined to inform the Justice Department of the concerns.
Mr. Eisenberg was not the only witness expected to stiff arm House investigators on Monday. Robert Blair, the national security adviser to the acting White House chief of staff Mick Mulvaney; Michael Ellis, Mr. Eisenberg’s deputy; and Brian McCormack, the former chief of staff to the energy secretary, Rick Perry, are all expected to skip scheduled depositions, in some cases despite receiving a subpoena.
With the refusals to appear, and other witnesses expected to follow suit this week, Democrats conducting the impeachment inquiry may be bumping up against the limits of their fact finding in the form of loyalists to Mr. Trump and members of his inner circle. They are trying to complete private depositions this week, before moving the investigation into public view as early as next week with public hearings.
Mr. Blair, who listened in on the July 25 call, is likely to have been privy to key details about the president’s direction to Mr. Mulvaney to freeze $391 million in security assistance to Ukraine this summer. His lawyer indicated over the weekend he would not cooperate.
Mr. Ellis could offer a direct account of the decision to lock down a reconstructed transcript of the call, and possibly of how the White House legal team handled reports made by national security officials alarmed by what they saw transpiring with Ukraine. A lawyer for Mr. Ellis said Monday morning that he had been directed by the White House not to cooperate and would not appear for an afternoon deposition.
And as Mr. Perry’s chief of staff, Mr. McCormack is said to have been involved in key events under scrutiny. He is now working at the Office of Management and Budget. An administration official indicated on Monday that neither he, nor other White House budget office appointees, would speak with investigators this week.
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