The State Department has stopped Gordon Sondland, the US-EU ambassador, from testifying in the House of Representatives. Democrats are calling it obstruction of the inquiry. How does this work? Is there actually any rule against it, or is it completely legal?
According to President Trump via Twitter:
I would love to send Ambassador Sondland, a really good man and great American, to testify, but unfortunately he would be testifying before a totally compromised kangaroo court, where Republican’s rights have been taken away, and true facts are not allowed out for the public....
....to see. Importantly, Ambassador Sondland’s tweet, which few report, stated, “I believe you are incorrect about President Trump’s intentions. The President has been crystal clear: no quid pro quo’s of any kind.” That says it ALL!
The New York Times builds on that:
Robert Luskin, Mr. Sondland’s lawyer, said in a statement that as a State Department employee, his client had no choice but to comply with the administration’s direction. He said Mr. Sondland had been prepared and happy to testify, and would do so in the future if allowed.
“Ambassador Sondland is profoundly disappointed that he will not be able to testify today,” Mr. Luskin said. “Ambassador Sondland believes strongly that he acted at all times in the best interests of the United States, and he stands ready to answer the committee’s questions fully and truthfully.”
My reading is that Trump is instructing Sondland not to testify. Sondland's lawyers are complying with Trump's direction not to testify. Doing so may be a contempt of Congress, from Wikipedia:
Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically, the bribery of a U.S. Senator or U.S. Representative was considered contempt of Congress. In modern times, contempt of Congress has generally applied to the refusal to comply with a subpoena issued by a Congressional committee or subcommittee—usually seeking to compel either testimony or the production of requested documents.
Is there actually any rule against it, or is it completely legal?
It doesn't seem that there's executive privilege (and the WH doesn't seem to claim that with respect to Sondland) allowing the White House to prevent diplomats from appearing to give testimony. It may be illegal if it's deemed to be witness intimidation, from a press release from House Committees:
“Any effort to intimidate witnesses or prevent them from talking with Congress—including State Department employees—is illegal and will constitute evidence of obstruction of the impeachment inquiry. In response, Congress may infer from this obstruction that any withheld documents and testimony would reveal information that corroborates the whistleblower complaint.
The Supreme Court’s key ruling on executive privilege involved President Richard Nixon’s Oval Office tape recordings. The court said presidents can claim confidentiality to protect military, diplomatic or sensitive national security secrets, but not in a criminal case if a “specific need” for evidence is shown. How that might apply to an impeachment inquiry is untested. As for whether Giuliani’s communications with Trump are private and protected, Stephen Gillers, a law professor at New York University, said the attorney-client privilege would apply only to communications that had the purpose of giving Trump legal advice. In the matter of Trump’s dealings with Ukraine, Giuliani has seemingly done more than just advise on the law.
The article goes on about contempt charges:
- What can Congress do to compel cooperation?
When the House or Senate believes it’s being wrongly rebuffed, it can vote to hold a person in contempt of Congress, a misdemeanor punishable by a fine of up to $1,000 and imprisonment for up to one year. Or it can file a civil lawsuit seeking a court order to force the person to comply. Refusing to obey a court order can bring a charge of contempt of court.
- How does Congress enforce a contempt charge?
Its powers to do so are quite weak. A House resolution alleging criminal contempt would need a U.S. attorney to enforce it -- and U.S. attorneys report to the Justice Department, which is led by the attorney general, an appointee of the president. For this reason, it can be argued “that there is not currently a credible threat of prosecution” facing an official in the executive branch who “refuses to comply with a congressional subpoena at the direction of the president,” according to a March 2019 report by the Congressional Research Service. And while an allegation of civil contempt could ultimately be enforced by a judge, that route “may lead to significant delays in Congress obtaining the sought-after information,” the report found. In theory at least, Congress could enforce a subpoena on its own by dispatching an official known as the sergeant at arms to arrest officials and then conduct a trial before the full House. But that tactic, used early in Congress’s history, hasn’t been embraced since the mid-1930s.
"Is it legal" is better left to another question, but the White House has now sent an official 8-page letter to the House of Representatives that the Administration won't cooperate with the impeachment inquiry.
"In order to fulfil his duties to the American people... President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances."
The BBC notes:
The White House letter comes hours after the Trump administration blocked the US ambassador to the European Union from appearing before a congressional impeachment investigation.
And a few more details from Vox as to how Sondland in particular was told not to participate:
Sondland, per his lawyer, said he wanted to chat with congressional investigators. But after he handed over texts on his personal device to the State Department, the attorney received a middle-of-the-night call to inform him the ambassador couldn’t speak on the Hill.
which is in turn citing Yahoo
Robert Luskin, Sondland’s attorney, said he got the extraordinary middle-of-the-night directive in a phone call from a State Department official he declined to identify. The official offered no explanation of the grounds on which the State Department was blocking Sondland’s appearance at the last minute.
So if this is correct, Sondland was told not to participate by the State Department, which in turn gave no immediate explanation for the block. But the reason does become apparent in the letter sent by the White House later in the day.
As Vox continues on the HoR response:
In response, they plan to subpoena Sondland in an effort to get him to testify and hand over the relevant information, especially his text messages. Asked if the ambassador would then have to comply, the senior House Democratic aide said that’s where things could get tricky: “Congress would argue ‘yes,’ the administration would argue ‘no.’ Sondland would probably defer to administration, and it would need to get settled in a long court battle.”