The Rotunda at the U.S. Capitol in Washington, D.C. Photo: Diego M. Radzinschi/ALM

On a Monday evening last month, in the waning hours of her daylong deposition in the House impeachment inquiry, Fiona Hill addressed the conspiracy theories that swirled around her tenure as President Donald Trump's adviser on Russia and Europe.

Hill recalled accusations, spread on the far-right website InfoWars, that she was a "mole" planted by the Democratic mega-donor George Soros. With the impeachment inquiry picking up, Hill testified that she was now "out on InfoWars again."

Within moments, Hill's lawyer Lee Wolosky cut in. At Hill's mention of InfoWars and Soros, Wolosky said he saw Steve Castor, a top lawyer and investigator for House Republicans, laugh. Wolosky, a partner at the law firm Boies Schiller Flexner, wanted that response to be recorded in the deposition transcript.

"That is an outrageous—that is outrageous to say that I laughed at that," Castor said.

"You did laugh, and I want the record to reflect it because this is a very serious matter where people's lives potentially are in danger," Wolosky responded, referring to death threats and harassing calls Hill has received. "And it's not a laughing matter."

Castor continued to dispute Wolosky's claim, saying it was an "absolutely ridiculous characterization." But Wolosky's objection would be reflected in the record, living on in the publicly released transcript of Hill's deposition.

The tense exchange offered a glimpse into how lawyers have negotiated, in real time, the curves thrown by the House impeachment probe, an inquiry that has focused on whether Trump abused his power in leveraging U.S. military aid to pressure Ukraine to investigate former Vice President Joe Biden and his son Hunter.

After playing out for weeks behind closed doors, the impeachment inquiry is set to spill out into public view Wednesday, with William Taylor, a former ambassador to Ukraine, and career diplomat George Kent both appearing before the House Intelligence Committee. A K&L Gates team has advised Kent, and lawyers from Arnold & Porter Kaye Scholer have represented Taylor.

Marie Yovanovitch, a former U.S. ambassador to Ukraine, is slated to testify publicly Friday. She is represented by Lawrence Robbins of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber.

In interviews, lawyers involved in the impeachment inquiry described numerous challenges in navigating the House impeachment inquiry, a high-pressure proceeding rife with murky legal questions and rules unfamiliar even to experienced defense attorneys.

"For these folks caught in crossfire between two political parties and two branches of government, there aren't firm answers on the legal questions, and that makes it really difficult," said one lawyer. "The law itself is contested."

In court, top Trump administration officials have sought clarity on whether they should comply with House subpoenas demanding their testimony or follow the White House's instructions not to testify.

Boies Schiller Flexner offices in Washington, D.C. Photo: Diego M. Radzinschi/ALM

Ahead of Hill's testimony, Wolosky exchanged letters with the White House counsel's office concerning the extent to which executive privilege would apply to the former National Security Council official's testimony. Because the House's rules bar administration officials from sitting in on the questioning, it fell to Hill and her lawyer to avoid divulging information that might be privileged.

"It becomes the responsibility of the witness's lawyer to figure that out," Wolosky said in an interview Tuesday. "That is completely odd-ball stuff since you don't hold the privilege—very different from any deposition most lawyers will encounter."

In preparation for the public phase of the impeachment inquiry, lawyers said they have scoured transcripts of the closed-door depositions, looking for narratives particular lawmakers might seek to explore during their questioning. The Trump administration's refusal to provide documents has limited the ability of some witnesses to refresh their recollections of the events in question, requiring them to draw from memory—and take proper precautions in doing so.

"This is not an adjudication where we win the case, we defeat a claim or win a judgment. This is an exercise in surviving what is going to be an uncomfortable day for every witness that gets up there," one lawyer said. "You're really just trying to absorb and be resilient, appropriately caveat answers and not create discomfort that transcends the hearing."

The House rules allow the top members of the House Intelligence Committee—the panel's chairman, U.S. Rep. Adam Schiff, and the ranking member, U.S. Rep. Devin Nunes—to yield time to counsel during an initial 45-minute round of questioning. Castor will be on hand to conduct questioning during Nunes' allocated time. For the Democrats, Daniel Goldman, a former federal prosecutor in Manhattan, is expected to conduct much of the questioning.

Following the extended questioning, there will be alternative five-minutes rounds of questioning by Democratic and Republican committee members.

The House's impeachment inquiry set off a scramble for lawyers, the likes of which was last seen during the special counsel investigation of Russia interference in the 2016 presidential election. Major U.S. law firms—including Paul Hastings, Akin Gump Strauss Hauer & Feld, Squire Patton Boggs and White & Case—have advised current or former U.S. officials amid the impeachment inquiry.

Paul Hastings partners Robert Luskin and Kwame Manley represent Gordon Sondland, the U.S. ambassador to the European Union. Taylor is represented by Arnold & Porter partner John Bellinger, who served under the George W. Bush administration as the State Department legal adviser. Kent is being advised by K&L Gates partners Andrew Wright and Barry Hartman.

Transcripts of the closed-door depositions reveal varying approaches from the lawyers, their styles ranging from hands off to highly active and, in some instances, adversarial.

Lawrence Robbins of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. April 26, 2010. Photo: Diego M. Radzinschi /ALM

In the transcript of Yovanovitch's deposition, Robbins repeatedly stepped in to clarify questions or relay the privilege the State Department was asserting over internal communications. At another point, when Castor inquired about how the Washington Post obtained an advance copy of Yovanovitch's opening statement, Robbins stepped in to head off an answer.

"Anything she would know about that, she would know through counsel, so she's not going to answer that," Robbins said.

The lawyers also kept an eye on the clock—and repeated questions. In the more than nine-hour deposition of Sondland, Luskin pushed back against U.S. Rep. Lee Zeldin, R-New York, when he pressed the ambassador over his view about Trump's effort to pressure Ukraine to investigate former Vice President Joseph Biden and his son Hunter.

Sondland said he was not a lawyer and that the propriety of Trump's conduct depended on whether it was legal. "That's the best I can give you," Sondland said. "It's really a question of law."

Zeldin said he was trying to reconcile "two completely different answers" from Sondland, prompting Luskin to point out the length of the deposition.

"With all respect, congressman, we've now been here for eight and a half hours and Ambassador Sondland has not declined to answer a single question posed by any member or any counsel member," Luskin said. "You've asked this question now three different times. I know you're unhappy with his answer, but if we stay until 7:30 he's not going to change his answer."

 

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