The House impeachment inquiry is zeroing in on two White House lawyers privy to a discussion about moving a memo recounting President Donald Trump's phone call with the leader of Ukraine into a highly restricted computer system normally reserved for documents about covert action.
Deepening their reach into the West Wing, impeachment investigators have summoned former national security adviser John Bolton to testify next week. But they also are seeking testimony of two other political appointees — John Eisenberg, the lead lawyer for the National Security Council, and Michael Ellis, a senior associate counsel to the president.
The impeachment inquiry is investigating Trump's call in which he asked Ukrainian President Volodymyr Zelenskiy for "a favor" — one that alarmed at least two White House staffers who listened in on the July 25 call.
Trump asked Zelenskiy to investigate Democrats in the 2016 election and former Vice President Joe Biden, a potential 2020 rival, as the Trump administration held up millions of dollars in military aid for the Eastern European ally confronting Russian aggression.
The lawyers' role is critical because two witnesses have suggested the NSC legal counsel — when told that Trump asked a foreign leader for domestic political help — took the extraordinary step of shielding access to the transcript not because of its covert nature but rather its potential damage to the Republican president.
Trump has repeatedly stressed that he knew people were listening in on the call, holding that out as proof that he never would have said anything inappropriate. But the subsequent effort to lock down the rough transcript suggests some people in the White House viewed the president's conversation as problematic.
Tim Morrison, outgoing deputy assistant to the president who handled European and Russian affairs at the NSC, told impeachment investigators on Thursday that military aid to Ukraine was held up by Trump's demand for the ally to investigate Democrats and Joe Biden.
Morrison testified that he was "not concerned that anything illegal was discussed" on the July 25 call, but he said that after listening to what Trump said he "promptly asked the NSC legal adviser to review it."
Lt. Col. Alexander Vindman, a Ukraine expert at the NSC, had the same reaction. He and Morrison were both in the Situation Room in the basement of the West Wing listening in on Trump's conversation with Zelenskiy. Vindman told impeachment investigators that he was alarmed by what he heard, grabbed his notes from the call and went to see Eisenberg.
"I did not think it was proper to demand that a foreign government investigate a U.S. citizen, and I was worried about the implications for the U.S. government's support of Ukraine," Vindman said.
Vindman said Eisenberg, who's known inside and outside the White House as a meticulous, deliberate lawyer, suggested moving the document that recounted the call to a restricted computer server for highly classified materials, according to a person who familiar with Vindman's testimony. The person was not authorized to publicly discuss it and spoke only on the condition of anonymity.
Ellis, the other White House lawyer being asked to testify, was with Eisenberg when he made the suggestion to move the document into the more secure server. Ellis is no stranger to White House controversies. The New York Times reported in March 2017 that he allowed his former boss Rep. Devin Nunes, R-Calif., then the chairman of the House intelligence committee, to review classified material at the White House.
The material was to bolster Trump's claim that he was wiretapped during the 2016 campaign on the orders of President Barack Obama's administration. The intelligence reports consisted primarily of ambassadors and other foreign officials talking about trying to develop contacts in the inner circle of then President-elect Trump. The report was not confirmed by The Associated Press.
Eisenberg and Ellis, both part of the White House legal staff, declined to comment through an NSC spokesman.
"Consistent with the practices of past administrations from both parties, we will not discuss the internal deliberations of the White House Counsel's Office," deputy press secretary Hogan Gidley said.
Mulvaney: No cover-up
Mick Mulvaney, the acting White House chief of staff, has declined to discuss how the White House handles classified materials, but he denies that moving the memo about the call into the highly restricted N.I.C.E. server — which stands for NSC Intelligence Collaboration Environment — amounted to a cover-up.
"There's only one reason people care about that, right? And it's because they think there's a cover-up," he told reporters at a recent White House briefing, adding, "There must have been something really, really duplicitous, something really under-handed about how they handled this document, because there must be a cover-up."
Mulvaney said if the administration had wanted to cover anything up, it wouldn't have called the Justice Department after the call to have them look at the transcript and wouldn't have publicly released the memorandum of the conversation.
The so-called "memcon" is close to a verbatim transcript, although no audio recordings are made.
Individuals familiar with Trump White House procedure say one Situation Room staffer, using voice-to-text software, repeats each word the president says and another listens and repeats what a foreign leader says. The spoken words are rendered as text and a rough draft is produced.
The draft, which in this case included a few ellipses, is circulated to several people, including NSC subject matter specialists who listened in on the call. They edit the draft for accuracy. Each version is separately preserved on the T-Net system, forming an archive that documents various edits.
Vindman told investigators that the call included a discussion of Biden and Burisma — a reference to the gas company where Joe Biden's son, Hunter, served on the board. Vindman said Trump also mentioned that there were audio recordings of Joe Biden discussing corruption in Ukraine, according to individuals familiar with Tuesday's closed-door testimony.
Vindman said he tried to suggest changes to the five-page "memcon," but was unsuccessful, according to the individuals, who were not authorized to discuss the testimony and spoke only on condition of anonymity.
White House press secretary Stephanie Grisham pushed back on Thursday, saying Vindman "never suggested filling in any words at any points where ellipses appear in the transcript." She added that because Vindman testified behind closed doors, the White House "cannot confirm whether or not Lt. Col. Vindman himself made any such false claim."
Like most presidential calls with foreign leaders, the Trump-Zelenskiy call was put into the T-Net system where certain individuals are granted permission to read it based on their need to know, according to two individuals with direct knowledge of the system. NSC officials working on African issues, for example, would not routinely have been given access to the Ukraine call.
Taking it off T-Net would involve systems specialists, according to the individuals, who were not authorized to discuss the systems publicly and spoke only on condition of anonymity. They would have to identify every person who accessed the document and then wipe any trace of the memcon off the T-Net server. After that, other NSC workers would have had to place the material onto the N.I.C.E. system, which is physically housed in the NSC intelligence directorate.
According to one of the individuals familiar with the White House classified computer systems, Eisenberg couldn't have actually moved it to N.I.C.E. by himself. That raises a question, the individual said, as to what reasons were given for needing it to be moved.