DOD in 'uncharted territory' on impeachment inquiry, defers to White House on executive privilege

By Tony Bertuca / October 23, 2019 at 4:51 PM

Senior defense officials said today the Pentagon is honoring the White House's assertion of executive privilege as grounds for refusing to comply with a subpoena for documents sought in the House impeachment inquiry into President Trump.

"We're really in uncharted territory here," one official said. "This is very unprecedented."

Another official said the Defense Department cannot provide House impeachment investigators the documents and information they seek regarding Trump's decision to withhold $400 million in aid to Ukraine for several months until the "constitutional concerns" listed in an Oct. 8 letter sent to Congress by White House Counsel Pat Cipollone are addressed.

"Until those [concerns] are addressed, we will continue to collect and review internally responsive documents," the second official said. "But executive privilege is only for the White House to assert and we will have to follow their lead regarding executive privilege."

Along with claiming executive privilege, a key argument Cipollone made in the letter is that the impeachment inquiry is illegitimate because it was never subject to a formal vote in the House.

When asked if the legal analysis of DOD's own attorneys squared with Cipollone's assessment, the defense officials declined to comment, saying his letter represents the administration’s position.

The department, however, continues to gather and preserve all documents and information related to the matter for possible use in the future.

"We wanted to make sure that the record is preserved," one official said. "We are good there, we think. We want to make sure that we're doing our due diligence."

House impeachment investigators say they are examining whistleblower allegations that Trump held back the aid to pressure Ukraine to investigate former Vice President Joe Biden and his son Hunter. Biden is a leading candidate for the 2020 Democratic presidential nomination.

The White House's refusal to cooperate has prompted concern about a constitutional crisis, as the U.S. Constitution gives the House "sole power of impeachment."

Meanwhile, Laura Cooper, the deputy assistant secretary of defense for Russia, Ukraine and Eurasia, testified today before impeachment investigators in a closed hearing after a five-hour delay caused by House Republicans who forced their way into the secure room where the hearing was being held.

The GOP lawmakers said they were angry that the impeachment investigation is happening behind closed doors and not at public hearings. Democrats say public hearings will follow the investigation.

The DOD officials said they do not know what Cooper plans to say because she immediately retained a private attorney upon agreeing to voluntarily appear before the investigators. DOD lawyers are also barred from appearing with government employees during depositions, per House regulations.

"She hired private counsel almost immediately," one official said.

The officials said the administration is concerned Cooper could discuss matters over which the White House has asserted executive privilege.

Cooper's appearance follows explosive testimony Tuesday by acting U.S. Ambassador to Ukraine William Taylor, who told House impeachment investigators that he was told Trump was going to withhold the aid package until the Ukrainian president made a public announcement to investigate the Biden family and the 2016 U.S. election.

Democrats say Taylor's account undermines the president's claims that there was never a "quid pro quo."

Trump has repeatedly denied doing anything wrong and has likened the impeachment inquiry to a "witch hunt."