Enclosed was a letter sent on November 3 from Mr. Cipollone to Mr. Eisenberg's personal attorney stating that "the President directs Mr. Eisenberg not to appear at the Committee's deposition on Monday, November 4, 2019."231 Also enclosed was a letter sent on November 3 from the Office of Legal Counsel of the Department of Justice to Mr. Cipollone stating:
You have asked whether the Committee may compel Mr. Eisenberg to testify. We conclude that he is absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President.232
Mr. Eisenberg did not appear for the scheduled deposition, in defiance of the Committees' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Eisenberg's absence, stating:
Despite his legal obligations to comply, Mr. Eisenberg is not present here today and has therefore defied a duly authorized congressional subpoena. This morning, in an email received at 9:00 a.m., when the deposition was supposed to commence, Mr. Eisenberg's personal attorney sent a letter to the committee stating that President Trump had, quote, "instructed Mr. Eisenberg not to appear at the deposition," unquote. The attorney attached correspondence from White House counsel Pat Cipollone and a letter from the Office of Legal Counsel at Department of Justice. The OLC letter informs the White House that Mr. Eisenberg is purportedly, quote, "absolutely immune from compelled congressional testimony in his capacity as a senior advisor to the President," unquote. ...
Moreover, neither Congress nor the courts recognize a blanket, quote, "absolute immunity," unquote, as a basis to defy a congressional subpoena. Mr. Eisenberg and the White House, therefore, have no basis for evading a lawful subpoena. As such, the President's direction to Mr. Eisenberg to defy a lawful compulsory process can only be construed as an effort to delay testimony and obstruct the inquiry, consistent with the White House counsel's letter dated October 8, 2019. As Mr. Eisenberg was informed, the Committees may consider his noncompliance with the subpoena as evidence in a future contempt proceeding. His failure or refusal to appear, moreover, shall constitute evidence of obstruction of the House's impeachment inquiry and may be used as an adverse inference against the President. The subpoena remains in full force. The committees reserve all of their rights, including the right to raise this matter at a future Intelligence Committee proceeding, at the discretion of the chair of the committee.
Mr. Eisenberg's nonappearance today adds to a growing body of evidence of the White House seeking to obstruct the White House's impeachment inquiry. To the extent the White House believes that an issue could be raised at the deposition that may implicate a valid claim of privilege, the White House may seek to assert that privilege with the Committee in advance of the deposition. To date, as has been the case in every other deposition as part of the inquiry, the White House has not done so. Mr. Eisenberg's failure to appear today also flies in the face of historical precedent. Even absent impeachment proceedings, congressional committees have deposed senior White House officials, including White House counsels and senior White House lawyers.233
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