Defense Secretary Mark Esper won’t comply with the impeachment inquiry, joining President Donald Trump’s lawyer Rudy Giuliani and Vice President Mike Pence.
The Trump administration sent a letter to House Speaker Nancy Pelosi (D-Calif.) on Oct. 8 rejecting the premise of the inquiry, arguing that it’s illegitimate because it’s not following traditional norms such as a full House vote.
“You have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process,” Pat Cipollone, White House counsel, said in the letter.
The Department of Defense said in a letter on Tuesday to House Democrats that “the current subpoena … raises a number of legal and practical concerns that must first be addressed” before any documents are given over.
“For example, although your letter asserts that the subpoena has issued ‘[p]ursuant to the House of Representatives’ impeachment inquiry,’ the House has not authorized your committees to conduct any such inquiry. The Supreme Court has long held that the first step in assessing the validity of a subpoena from a congressional committee is determining ‘whether the committee was authorized’ to issue the subpoena, which requires ‘constru[ing] the scope of the authority which the House of Representatives gave to’ the committee,” Robert Hood, Assistant Secretary of Defense for Legislative Affairs, wrote in the letter.
“Here, none of your committees has identified any House rule or House resolution that authorized the committees to begin an inquiry pursuant to the impeachment power. In marked contrast with historical precedents, the House has not expressly adopted any resolution authorizing an impeachment investigation.”
Hood said that the House has also not given any of the committees—House Foreign Affairs, House Oversight and Reform, and House Intelligence—the authority to conduct the inquiry.
NEW… DOD says they recognize “the significance of your request” but will not fork over documents subpoenaed by congress as part of impeachment inquiry “at this time.” pic.twitter.com/GnfjfrSgc7
— Jake Sherman (@JakeSherman) October 15, 2019
“Even if the inquiry were validly authorized, much of the information sought in the subpoena appears to consist of confidential Executive Branch communications that are potentially protected by executive privilege and would require careful review to ensure that no such information is improperly disclosed,” Hood said.
He also pushed back against the threat by the chairmen that Esper’s “failure or refusal to comply with the subpoena … shall constitute evidence of obstruction of the House’s impeachment inquiry.”
“Invoking reasonable legal defenses to a subpoena, including invoking legal privileges that are held by the president, in no way manifests evidence of obstruction or otherwise warrants an adverse inference,” Hood said. “Indeed, the very idea that reasonably asserting legal rights is itself evidence of wrongdoing turns fundamental notions of fairness on their head and is inconsistent with the rule of law.”