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Norquist Letter to Levin Warning L. Cooper to Not Cooperate with Impeachment Inquiry Whistleblower Complaint on Ukraine (Kelly Smith, comp.) 1 (10/22/2019)

handle is hein.presidents/usgvtwht0100 and id is 1 raw text is: 

                       DEPUTY SECRETARY OF DEFENSE
                             1010  DEFENSE PENTAGON
                           WASHINGTON. DC 20301-1010



Daniel Levin                                                        OCT  2 2 2019
White & Case LLP
701 Thirteenth Street, NW
Washington, DC  20005-3807

Dear Mr. Levin:

       I understand that you have been retained by Ms. Laura Cooper, the Department's Deputy
Assistant Secretary of Defense for Russia, Ukraine, and Eurasia, as her private counsel for a
deposition to be conducted jointly by the House Permanent Select Committee on Intelligence, the
Committee on Foreign Affairs, and the Committee on Oversight and Reform, [p]ursuant to the
House of Representatives' impeachment inquiry. The Department's October 15, 2019 letter to
the Chairs of the three House Committees [Tab A] expressed its belief that the customary
process of oversight and accommodation has historically served the interests of congressional
oversight committees and the Department well. The Committees' purported impeachment
inquiry, however, presents at least two issues of great importance.

       The first issue is the Committees' continued, blanket refisal to allow Department
Counsel to be present at depositions of Department employees. Department Counsel's
participation protects against the improper release of privileged or classified information,
particularly material covered by the executive privilege which is the President's alone to assert
and to waive. Excluding Department Counsel places the witness in the untenable position of
having to decide whether to answer the Committees' questions or to assert Executive Branch
confidentiality interests without an attorney from the Executive Branch present to advise on
those interests. It violates settled practice and may jeopardize future accommodation.
Furthermore, the Department of Justice has concluded that congressional subpoenas that purport
to require agency employees to appear without agency counsel are legally invalid and are not
subject to civil or criminal enforcement. See Attempted Exclusion ofAgency Counsel from
Congressional Depositions ofAgency Employees, 43 Op. O.L.C. (May 23, 2019) [Tab B].

       The second issue is the absence of authority for the Committees to conduct an
impeachment  inquiry. In its October 15, 2019 letter, the Department conveyed concerns about
the Committees' lack of authority to initiate an impeachment inquiry given the absence of a
delegation of such authority by House Rule or Resolution. This correspondence echoed an
October 8, 2019 letter from the White House Counsel [Tab C] expressing the President's view
that the inquiry was contrary to the Constitution of the United States and all past bipartisan
precedent and violates fundamental fairness and constitutionally mandated due process.

       This letter informs you and Ms. Cooper of the Administration-wide direction that
Executive Branch personnel cannot participate in [the impeachment] inquiry under these
circumstances [Tab C]. In the event that the Committees issue a subpoena to compel Ms.
Cooper's appearance, you should be aware that the Supreme Court has held, in United States v.

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