For a man who says he has nothing to hide, President Donald Trump and his administration seem to want to keep an awful lot hidden. Following a week of depositions and testimony featuring acting Director of National Intelligence Joseph Maguire and the U.S. Intelligence Community Inspector General Michael Atkinson, the White House abruptly changed course last week, signaling a shift in its approach to the impeachment inquiry. On October 8, after the State Department reportedly ordered U.S. Ambassador to the European Union Gordon Sondland not to appear for a deposition with House investigators, the president’s chief legal adviser informed House leadership that President Trump and his administration would not comply with the impeachment inquiry. Subpoenas immediately followed.
Remarkably, despite White House efforts to block her participation, former U.S. Ambassador to Ukraine Marie Yovanovitch decided to appear before House investigators—and she may have inspired others to step forward, too. Fiona Hill, former White House adviser on Russia, appeared before House investigators on Monday, and Ambassador Sondland is expected to appear before House investigators on Thursday, despite earlier White House efforts to keep him quiet. Although the White House continues to try to limit what current and former administration employees can say, lawyers representing those employees have pushed back, arguing that the executive privilege does not apply. With a number of hearings and document production deadlines looming, there will be many opportunities for the White House to attempt to withhold cooperation.
The White House’s central claim is that it is not required to turn over certain documents or to permit certain testimony because the information pertains to deliberations that are protected from disclosure under the executive privilege, a long-standing doctrine rooted in the separation of powers that permits the executive branch to protect the confidentiality of presidential deliberations. The U.S. Supreme Court has recognized the president’s constitutionally based privilege to withhold certain information from disclosure to the public or Congress—but these constraints are far from absolute. There are important limitations on the president’s ability to withhold information from Congress.