The President’s Refusal to Allow Top Aides to Testify : T. Ulrich Brechbuhl, Counselor, Department of State

The Trump-Ukraine Impeachment Inquiry Report includes Section II, The President’s Obstruction of the House of Representatives’ Impeachment Inquiry. Item #4 is The President’s Refusal to Allow Top Aides to Testify.    One of the twelve current or former Administration officials named in the report for refusing to testify under the President’s direction is T. Ulrich Brechbuhl, the Counselor for the State Department. The counselor position at State is not a legal position despite its title. It is an “Under Secretary-level principal officer” position. The incumbent serves the “Secretary as a special advisor and consultant on major problems of foreign policy and who provides guidance to the appropriate bureaus with respect to such matters. The Counselor conducts special international negotiations and consultations, and also undertakes special assignments from time to time, as directed by the Secretary.”
Excerpt from report:
At President Trump’s direction, twelve current or former Administration officials refused to testify as part of the House’s impeachment inquiry, ten of whom did so in defiance of duly authorized subpoenas. The President’s orders were coordinated and executed by the White House Counsel and others, and they prevented testimony from officials from the White House, National Security Council, Office of Management and Budget, Department of State, and Department of Energy.
[…]
In following President Trump’s orders to defy duly authorized Congressional subpoenas, several Administration officials who, to date, remain under subpoena may have placed themselves at risk of being held in criminal contempt of Congress.209 These witnesses were warned explicitly that their refusal to obey lawful orders to testify “shall constitute evidence that may be used against you in a contempt proceeding” and could also result in adverse inferences being drawn against both them and the President.210
T. Ulrich Brechbuhl, Counselor, Department of State
(see PDF pp 241-243)

On September 13, the Committees sent a letter to Secretary of State Mike Pompeo seeking transcribed interviews with Counselor T. Ulrich Brechbuhl and other officials.271

The Committees received no direct, substantive response to this letter. On September 27, the Committees sent a letter informing Secretary Pompeo that Mr. Brechbuhl’s deposition was being scheduled on October 8, stating:

On September 13, the Committees wrote to request that you make State Department employees available for transcribed interviews. We asked you to provide, by September 20, dates by which the employees would be made available for transcribed interviews. You failed to comply with the Committees’ request.272

That same day, the Committees sent a letter directly to Mr. Brechbuhl seeking his appearance at a deposition on October 8.273

On October 1, Secretary Pompeo sent a letter to the Committees stating, “Based on the profound procedural and legal deficiencies noted above, the Committee’s requested dates for depositions are not feasible.”274

Later that day, the Committees sent a letter to Deputy Secretary of State John J. Sullivan stating that the State Department “must immediately halt all efforts to interfere with the testimony of State Department witnesses before Congress.”275

On October 2, Mr. Brechbuhl’s personal attorney sent an email to Committee staff stating:

My law firm is in the process of being formally retained to assist Mr. Brechbuhl in connection with this matter. It will take us some time to complete those logistics, review the request and associated request for documents, and to meet with our client to insure he is appropriately prepared for any deposition. It will not be possible to accomplish those tasks before October 8, 2019. Thus, as I am sure that you can understand, Mr. Brechbuhl will not be able to appear on that date as he requires a sufficient opportunity to consult with counsel. Moreover, given the concerns expressed in Secretary Pompeo’s letter of October 1, 2019, to Chairman Engel, any participation in a deposition would need to be coordinated with our stakeholders.276

 

On October 8, Committee staff sent an email to Mr. Brechbuhl’s personal attorney stating: “The Committees have agreed to reschedule Mr. Brechbuhl’s deposition to Thursday, October 17. Please confirm that Mr. Brechbuhl intends to appear voluntarily.”277 On October 9, Committee staff sent an email to Mr. Brechbuhl’s personal attorney asking him to “confirm by COB today whether Mr. Brechbuhl intends to appear voluntarily.”278 Later that day, Mr. Brechbuhl’s personal attorney sent an email to Committee staff stating, “I am still seeking clarification from the State Department regarding this deposition.”279

On October 25, the Committees sent a letter to Mr. Brechbuhl’s personal attorney transmitting a subpoena compelling Mr. Brechbuhl’s appearance at a deposition on November 6.280

On November 5, Mr. Brechbuhl’s personal attorney sent a letter to the Committees stating:

Mr. Brechbuhl respects the important Constitutional powers vested in the United States Congress. And, indeed, he would welcome the opportunity to address through testimony an existing inaccuracy in the public record—the false claim that Mr. Brechbuhl in any way personally participated in the telephone call between President Trump and President Zelensky that occurred on July 25, 2019. However, Mr. Brechbuhl has received a letter of instruction from the State Department, directing that he not appear. The State Department letter of instruction asserts significant Executive Branch interests as the basis for direction not to appear and also asserts that the subpoena Mr. Brechbuhl received is invalid. The letter is supported by analysis from the United States Department of Justice. We are also aware that litigation has recently been initiated in the United States District Court for the District of Columbia that may bear on resolving the significant issues now arising between the Committees and the President. Given these circumstances, Mr. Brechbuhl is not able to appear on November 6, 2019.281

On November 6, Mr. Brechbuhl did not appear for the scheduled deposition, in defiance of the Committees’ subpoena. The Committees met and Chairman Schiff acknowledged Mr. Brechbuhl’s absence, stating:

The committees requested a copy of the State Department’s letter and the Department of Justice analysis, but Mr. Brechbuhl’s attorney has not responded. While the letter from Mr. Brechbuhl’s attorney provides only vague references to unidentified executive branch interests and a DOJ analysis as the basis for the State Department’s blocking of Mr. Brechbuhl’s testimony, the Department’s latest obstruction of this inquiry appears to be predicated on the opinion issued by the Department of Justice Office of Legal Counsel just last Friday, November 1, well after the subpoena was issued to Mr. Brechbuhl. It is noteworthy and telling that the OLC issued this opinion only after multiple State Department officials testified in this inquiry, both voluntarily and pursuant to subpoena, all without agency counsel present. Indeed, this morning, the third-highest-ranking official at the State Department, Under Secretary David Hale, appeared and has begun testifying in accordance with his legal obligations pursuant to a subpoena.282

The Committees sent Mr. Brechbuhl’s personal attorney two separate inquiries asking him to provide a copy of the “letter of instruction” that Mr. Brechbuhl claimed to have received from the State Department directing him to defy a congressional subpoena.283 Mr. Brechbuhl’s personal attorney furnished the Committees with a copy of the letter on December 2. The State Department’s letter to Mr. Brechbuhl is dated November 4, 2019.284

To date, Mr. Brechbuhl has not changed his position or contacted the Committees about compliance with the subpoena.

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