The emerging strategy of House Republicans to argue that White House advisers went rogue — without the authorization of President Donald Trump — to press Ukraine to provide dirt on a political opponent puts Office of Management and Budget Director Mick Mulvaney, National Security Council legal adviser John Eisenberg, the president’s personal attorney and former New York City mayor Rudy Giuliani and others in a precarious and even life-changing dilemma.
This gives those men a stark choice: They can stand mute while Republican members of congress and television analysts accuse them of potential criminal conduct in withholding congressionally authorized military aid to Ukraine and concealing evidence of this plot; or they can defend themselves by testifying in the upcoming impeachment proceedings that they were acting at the direction of the president.
Testimony in the impeachment inquiry has already implicated Mulvaney, who is also acting chief of staff at the White House, in the Ukraine scheme. The OMB, which he heads, allegedly withheld aid to Ukraine and the prospect of a White House visit with Trump until Ukrainian President Volodymyr Zelenskiy publicly announced an investigation of former Vice President Joe Biden and his son Hunter.
In his sworn deposition, Lt. Col. Alexander Vindman testified that, according to Ambassador Gordon Sondland, the withholding of aid had been “coordinated with White House chief of staff Mr. Mick Mulvaney.” National security adviser Fiona Hill also placed the blame directly on Mulvaney in her deposition: “Ambassador Sondland, in front of the Ukrainians, as I came in, was talking about how he had an agreement with Chief of Staff Mulvaney for a meeting with the Ukrainians if they were going to go forward with investigations.”
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To date, Mulvaney has defied a congressional subpoena to testify in the impeachment inquiry on his own behalf. His stonewalling poses two personal risks.
First, by staying silent, Mulvaney gives free rein to Republicans to promote the narrative that Mulvaney originated the unlawful “quid pro quo” scheme. After all, he famously acknowledged in an Oct. 17 White House press conference that aid to Ukraine was “held up” until Ukraine would announce a corruption investigation, adding “Get over it. There’s going to be political influence in foreign policy.” Mulvaney later walked back that statement, denying the existence of a quid pro quo.
Second, Mulvaney’s defiance of the lawful subpoena may be viewed by Democrats as an act of obstruction of a congressional investigation, a felony under 18 USC 1505, and punishable by a maximum of five years in prison.
A crack in Mulvaney’s resolve to remain silent occurred Friday when his lawyer filed papers to join a lawsuit brought by former White House deputy national security adviser Charles Kupperman, asking a federal judge to rule if a White House official must obey a congressional subpoena to testify in the impeachment inquiry despite Trump’s order not to comply. (He later withdrew that attempt and announced he would file his own suit.) If a federal judge ordered Mulvaney to testify, he could negate the impression that he volunteered to be a witness. But Mulvaney may not have the luxury to wait for a judicial ruling with the House impeachment inquiry possibly concluding next month.
Eisenberg is in a similar pickle as Mulvaney because Vindman reported Trump’s July 25 telephone call with Zelenskiy to Eisenberg, the deputy White House counsel, and asked for an investigation. Vindman testified that Eisenberg instructed him not to discuss Trump’s telephone call with anyone and Eisenberg moved the call transcript to a top-secret server.
Hill also testified that John Bolton, then national security adviser, told her to report the Ukraine scheme to Eisenberg. “[T]his is a direct quote from Ambassador Bolton. You go and tell Eisenberg that I am not part of whatever drug deal Sondland and Mulvaney are cooking up on this … So I went to talk to John Eisenberg about this,” Hill said.
Like Mulvaney, Eisenberg has defied a congressional subpoena to testify in the impeachment inquiry and, as a result, Republican strategists have the unchallenged ability to blame Eisenberg — personally — for suppressing information about the incident and attempting to gag Vindman from reporting to other officials. Unless Eisenberg testifies, his conduct will be defined solely by the public testimony of Vindman and Hill.
The strategy to blame the president’s aides in order to absolve the president himself isn’t a new one. In 1974, Republican members of the House Judiciary Committee argued that aides to President Richard Nixon engaged in the Watergate cover-up, while Nixon himself did nothing wrong. Only days before the Judiciary Committee approved three articles of impeachment, Rep. Trent Lott, R-Miss., argued: “The president had several aides that served him and this country poorly. The legal processes are now dealing with them.” But in urging a vote against articles of impeachment, Lott added: “The president did not participate in the Watergate cover-up.”
History, of course, proved Lott wrong: After the release of key White House tapes as ordered by the Supreme Court, Lott and nine other Republican members who had voted against Article I for obstruction of justice wrote an addendum to the Judiciary Committee’s final report. They said they now would support Article I because obstruction of justice had been “substantially confessed by Mr. Nixon on August 5, 1974, and corroborated by ample other evidence in the record.”
Mulvaney and Eisenberg, then, might want to learn from former White House counsel John Dean. Dean testified to the Senate Select Committee in June 1973 that, in April, Nixon had attempted to make Dean the fall guy for the Watergate cover-up. “I decided that indeed I was being set up and that it was time that I let the word out that I would not be a scapegoat. Accordingly, on April 19, I issued a statement to that effect.” He then began to cooperate with Congress.
Trump supporters are ready to throw Mulvaney, Eisenberg and other aides under the bus to protect the president. Whether these aides will allow themselves to be run over or take their own wheels to Capitol Hill to testify in the impeachment inquiry will be decided in upcoming weeks. Not only their professional reputations, but quite possibly their freedom, will depend upon their decisions.
Michael Conway served as counsel for the U.S. House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974. In that role, he assisted in drafting the committee’s final report to the House of Representatives in support of the three Articles of Impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.