Michael Ellis, Senior Associate Counsel to the President and Deputy Legal Advisor, National Security Council
On October 30, the Committees sent a letter to Michael Ellis, a Senior Associate Counsel to the President and the Deputy Legal Advisor at the National Security Council, seeking his appearance at a deposition on November 4.234 On November 2, Mr. Ellis' personal attorney sent an email to Committee staff stating:
[W]e are in receipt of an opinion from the Office of Legal Counsel providing guidance on the validity of a subpoena under the current terms and conditions and based on that guidance we are not in a position to appear for a deposition at this time.235
This email followed the November 1 Office of Legal Counsel opinion, discussed above, which sought to extend the reach of the President's earlier direction to defy Congressional subpoenas and provided justification for noncompliance by officials who could not plausibly be considered among the President's closest advisors.
On November 3, Mr. Ellis' personal attorney sent another email to Committee staff stating:
[O]ur guidance is that the failure to permit agency counsel to attend a deposition of Mr. Ellis would not allow sufficient protection of relevant privileges and therefore render any subpoena constitutionally invalid. As an Executive branch employee Mr. Ellis is required to follow this guidance.236
On November 3, the Committees sent a letter to Mr. Ellis' personal attorney transmitting a subpoena compelling his appearance at a deposition on November 4, stating:
Mr. Ellis' failure or refusal to comply with the subpoena, including at the direction or behest of the President or the White House, shall constitute further evidence of obstruction of the House's impeachment inquiry and may be used as an adverse inference against Mr. Ellis and the President.237
On November 4, Mr. Ellis did not appear for the scheduled deposition, in defiance of the Committees' subpoena. The Committees met and Chairman Schiff acknowledged Mr. Ellis' absence, stating:
Other than the White House's objections to longstanding congressional practice, the committees are aware of no other valid constitutional privilege asserted by the White House to direct Mr. Ellis to defy this subpoena.238
To date, Mr. Ellis has not changed his position or contacted the Committees about compliance with the subpoena.
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