White House lawyer says he will defy impeachment subpoena

White House lawyer John Eisenberg said that despite being subpoenaed to appear, he will not show up for testimony in the House impeachment inquiry on Monday, on instructions from President Trump. 

White House counsel Pat Cipollone wrote in a letter to William Burck, Eisenberg’s attorney, on Sunday that the Justice Department had advised him that Eisenberg, as a senior adviser to Trump, is “absolutely immune from compelled congressional testimony with respect to matters related to his service as a senior adviser to the President.”

{mosads}“The constitutional immunity of current and former senior advisers to the President exists to protect the institution of the Presidency and, as stated by former Attorney General [Janet] Reno, ‘may not be overborne by competing congressional interests,” Cipollone wrote in the letter, a copy of which was obtained by The Hill.

“Accordingly, in order to protect the prerogatives of the Office of the President today and in the future, and in response to your request, the President directs Mr. Eisenberg not to appear at the Committee’s deposition,” Cipollone wrote.

Burck notified House committees on Monday that his client would not appear for a scheduled deposition that same day, according to another letter. Eisenberg had been issued a subpoena to compel his appearance on Friday. 

“Even if Mr. Eisenberg had been afforded a reasonable amount of time to prepare, the President has instructed Mr. Eisenberg not to appear at the deposition,” Burck wrote. 

“Under these circumstances, Mr. Eisenberg has no other option that is consistent with his legal and ethical obligations except to follow the direction of his client and employer, the President of the United States. Accordingly, Mr. Eisenberg will not be appearing for a deposition at this time,” he continued.

Eisenberg was one of several White House officials subpoenaed to appear for closed-door testimony on Monday. 

Eisenberg, a lawyer on the National Security Council, is viewed as a central figure in the controversy surrounding Trump’s interactions with Ukraine that prompted an intelligence community whistleblower complaint alleging the president used his office to solicit foreign interference in the 2020 election.

Eisenberg reportedly proposed moving a transcript of Trump’s July 25 call with Ukrainian President Volodymyr Zelensky onto a server reserved for highly classified information in order to reduce access to it.

Trump asked Zelensky to look into former Vice President Joe Biden and his son Hunter Biden’s business dealings in Ukraine on the call, according to a recreated transcript released by the White House. Trump has insisted the call was “perfect,” that he raised the Bidens out of concern for fighting “corruption” and that it had nothing to do with politics.

{mossecondads}The call spurred an impeachment inquiry in the House, where Democrats are investigating, among other things, whether Trump used military aid to Ukraine as a cudgel to press Kiev for investigations that could aid his reelection bid. Trump has denied there was any quid pro quo in his interactions with Ukraine, though accounts from witnesses called by Democrats have undercut his claims. 

The White House has refused to cooperate with the impeachment inquiry thus far, describing the process as unfair and accusing Democrats of trying to overturn the results of the 2016 election. 

“What I said on the phone call with the Ukrainian President is ‘perfectly’ stated. There is no reason to call witnesses to analyze my words and meaning. This is just another Democrat Hoax that I have had to live with from the day I got elected (and before!). Disgraceful!” Trump tweeted earlier Monday morning. 

The White House has previously invoked the concept of absolute immunity in order to prevent White House counsel Don McGahn from testifying under subpoena before Congress in connection with investigations stemming from special counsel Robert Mueller’s Russia probe.

The immunity concept has been invoked by previous administrations of both parties, but there is little case law on the subject.

The developments prompted the House Judiciary Committee to file an ongoing civil lawsuit to enforce the subpoena for McGahn’s testimony.  

Another witness sought by the House, former NSC official Charles Kupperman, filed a lawsuit last month asking a federal court to decide whether he should testify under subpoena or obey directives from the executive branch saying he is immune from compelled testimony.

Burck noted the case in his letter to House Foreign Affairs Committee Chairman Eliot Engel (D-N.Y.), House Intelligence Committee Chairman Adam Schiff (D-Calif.) and House Oversight and Reform Committee acting Chairwoman Carolyn Maloney (D.N.Y.) on Monday.

“Mr. Eisenberg, as a lawyer and officer of the court, will abide by whatever final decision the federal judiciary reaches on the dispute between the Executive and Congress,” Burck wrote.

Updated at 11:59 a.m.