Testify or Not? It’s a Legal Pickle for Trump Officials

(Bloomberg Opinion) -- Your boss, the president of the United States, directs you not to help Congress in the impeachment inquiry he considers illegitimate. Then you get a subpoena from the House of Representatives Intelligence Committee ordering you to appear and testify under oath — or face contempt charges if you don’t. Other than call a lawyer, what are you supposed to do next?

For growing number of Trump administration officials, this isn’t a hypothetical situation. Since White House counsel Pat Cipollone’s Oct 8 letter refusing Trump administration participation in the House impeachment inquiry, five current or freshly resigned foreign policy officials have chosen to testify before the inquiry despite being told to keep quiet. Meanwhile, some officials under subpoena haven’t yet agreed to testify. And the White House has so far blocked the release of many, but not all, of the documents subpoenaed by the House.

It’s possible to depict the subpoenaed officials who have agreed to appear as heroes, choosing service to the republic over personal loyalty to the president. That may even be true of some of them. But the legal reality of their dilemma makes things a little more complicated.

A subpoena comes with the threat of enforceable penalty — that’s what the word “subpoena” (sub=under; poena=penalty) actually means. In theory, if you disobey a subpoena, Congress could seek to have you arrested and jailed.

But the most a president can do to an executive branch official who testifies is to fire the official. Several of the officials who have spoken to Congress had already stepped down — they can’t be fired.

As for those still in the employ of the executive branch, their careers are already in serious jeopardy. For such officials, the extra risk of losing their jobs probably doesn’t outweigh the possibility that their reputations might be rehabilitated by cooperating with the investigation.

What’s more, Donald Trump’s directive to officials not to appear may itself be unlawful. The Cipollone letter offers no credible legal argument for why Trump is refusing to cooperate with the House’s inquiry. For officials faced with the choice between a lawful subpoena from Congress and a potentially unlawful presidential order, it makes more legal sense to testify.

The strangest and most fascinating case is that of Gordon Sondland, who is still currently the U.S. ambassador to the European Union. Testimony by others strongly indicates that Sondland was at the heart of the effort to make Ukraine investigate Joe and Hunter Biden. Sondland was supposed to appear October 8, but Trump told him not to testify, and he didn’t show. Yet Sondland did ultimately testify on October 17.

Sondland’s motivations are uncertain. And Trump could still fire him — although doing so might look like an admission of guilt on the president’s part. It seems certain, however, that Sondland is not a hero for coming forward. He’s caught in a dilemma in which all options are bad, and he chose the one that seemed the least terrible.

Other current officials face a murky situation, but are at least in a better position than Sondland. Former U.S. ambassador to Ukraine Marie Yovanovich still works for the State Department, but she had little to lose by talking to the House, given that the Trump administration had already recalled her from Ukraine, one of the worst things that can happen to an ambassador. Her testimony vindicated her as a staunch anticorruption advocate sidelined by shadowy forces within the Trump administration.

Deputy Assistant Secretary of State George Kent, Yovanovitch’s former deputy chief of mission, also still works for the government and also testified. The White House initially pressured him not to appear; but he ultimately decided to go ahead anyway. Kent, like Yovanovitch, was angry about how Ukraine policy had been taken away from career diplomats and handed off to the president’s personal lawyer, Rudy Giuliani.

What about officials who’ve recently resigned? They may seem free and clear, but the reality could be more complicated. According to the legal doctrine of executive privilege, there are some communications between the president and his advisers that must be shielded from being the subject of testimony so that the president can do his job effectively — indeed, this is the only credible legal argument Trump could use to stop any officials from giving testimony.

For example, Fiona Hill was the senior director for European and Russian affairs at the National Security Council until she quit in July, not long before Trump’s now-infamous call to Ukrainian president Volodymyr Zelenskiy. Hill apparently stepped down precisely because she was so outraged by Trump’s Ukraine gambit.

Trump could have tried to block Hill’s testimony by arguing that she could not testify about matters protected by executive privilege. But Hill was in the intelligence committee hearing room with her own private lawyer, but without any lawyer from the executive branch who might have made this argument. Even if the privilege had been asserted, the intelligence committee could have overruled it. While in principle, executive privilege should apply even to testimony by former executive branch officials, in practice, it’s hard for the president to assert privilege when an ex-official is being subpoenaed.

Similar logic applied to Michael McKinley, who was a top aide to Secretary of State Mike Pompeo until he resigned on October 11, just days before his own testimony. Given the timing of his resignation, McKinley may have resigned in order to be able to testify without the threat of being fired. He very nearly said so, explaining that one reason for his resignation was “the failure … of the State Department to offer support to Foreign Service employees caught up in the Impeachment Inquiry on Ukraine.”

Kurt Volker was Trump’s special envoy to Ukraine. He resigned on September 27, probably because he was trying to distance himself from the emerging debacle of Trump’s Ukraine policy as it went to Congress. For him, testifying also offered some possibility of saving his professional reputation.

For the government officials caught up in this case, that may be the best outcome they can hope for.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

For more articles like this, please visit us at bloomberg.com/opinion

©2019 Bloomberg L.P.