The Trump White House’s legal strategy to keep top officials from testifying in impeachment proceedings is now focused on exploiting the slow pace of the legal system.
The goal of the run-out-the-clock approach is to tie up in courts the fight over whether top officials from the National Security Council, Office of Management and Budget and White House chief of staff’s office can appear before Congress — all while asserting expansive powers for the office of the president.
Court battles could last months, bringing the stand-off between Congress and the White House closer to the 2020 primary races. Democrats have long said they want to move quickly on the impeachment inquiry and keep it narrowly focused, with House aides tentatively hoping to wrap up the inquiry before Christmas.
“It’s a delay strategy,” said a Republican close to the White House, who argued the approach forces Democrats to impeach Trump on procedural grounds of obstructing the investigation instead of uncovering potentially more startling evidence.
If successful, the move will force Democrats to move ahead without hearing from top aides close to President Donald Trump including former national security adviser John Bolton, the budget office officials who delayed sending aid to Ukraine or the national security lawyer who chose to place the July 25 transcript call on a separate, highly classified server. The White House has claimed none of these people can testify under executive privilege, which is meant to protect conversations between the president and his top advisers.
The strategy of relying on a court’s timeline is already buying the administration more than a month: A U.S. District Court judge is not holding a hearing about whether former deputy national security adviser Charles Kupperman must testify until Dec. 10, cutting into the Democrats’ ambitious timeframe.
Six White House and administration officials were called to Capitol Hill to testify this week, yet none are expected to appear, according to administration officials and attorneys for a handful of these officials.
The next several days will test the White House’s game plan of not cooperating with Democrats — a stance the White House’s top attorney laid out in an eight-page letter sent to House Speaker Nancy Pelosi in early October.
Involving a third body — the courts — in the impeachment inquiry could slow down Democrats’ momentum in influencing public opinion, calling witnesses and collecting evidence to determine whether the president improperly used his office to investigate a political rival ahead of the next presidential election.
Any hiccup in the impeachment proceedings, which will include public testimony in the House followed by a trial and vote in the Senate, also threatens to overshadow the early presidential contests in Iowa and New Hampshire — drawing valuable public attention away from Democratic contenders, including several sitting senators. The Iowa caucuses are scheduled for Feb. 3, 2020.
In addition to leaning on the legal system, the White House is taking a broad approach to presidential power in its fight with Democrats. White House and Justice Department lawyers claim top administration officials do not need to appear before the House because the constitution protects conversations between the president and his advisers.
“Because the President’s closest advisers serve as his alter egos, compelling them to testify would undercut the ‘independence and autonomy’ of the presidency and interfere directly with the President’s ability to faithfully discharge his constitutional responsibilities,” Assistant Attorney General Steven Engel wrote in a Nov. 3 letter sent to Pat Cipollone, the White House counsel and obtained by POLITICO.
Developed by DOJ lawyers, the argument serves as the legal underpinning for White House aides refusing to testify. Attorneys for Kupperman, Bolton and Eisenberg have said the three men would testify if the courts compel them to do so — though that resolution could take months.
The White House press office did not respond to a request for comment.
Leaning so heavily on the power of the executive branch is not without its own risks, say constitutional experts and lawyers. The White House is claiming executive privilege extends to a wide cast of officials related to the Ukraine scandal and the July 25 phone call, even if some of those officials likely did not directly interact much with the president.
“It starts to get more tenuous, the wider the circle is for executive privilege,” said a former senior administration official. For instance, Democrats on Monday called to testify Michael Ellis, who serves as a senior associate counsel to the president and deputy legal adviser to the National Security Council.
“With Michael Ellis, I bet the president does not even know who that is,” the former official said. “He is not someone who is a direct adviser to the president. None of these people are. They all have at least one or two layers between them and the president and that makes the argument for executive privilege much weaker.”
The Constitution also does not extend executive privilege to instances that involve potential abuses of power, said Michael Gerhardt, an impeachment expert at the University of North Carolina at Chapel Hill.
“There is no provision in the Constitution that protects anyone, including the president or anyone in the executive branch, from disclosing criminal activities or abuses of power,” Gerhardt said. “The president’s efforts to impede that are really an attack on the House.”
Trump and aides say he has done nothing wrong and that his phone call with the Ukrainian president was “appropriate,” or the “perfect call,” as the president frequently calls it.
“If what you are doing is using that privilege to hide criminal activity, you can’t do that. The privilege is not there for that,” Gerhardt added. “This case will test in Congress whether a president can really abuse declarations of privilege to fend off an impeachment.”
Kyle Cheney contributed to this report.
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