Friday, 5 Jun 2020

Trump’s Sweeping Case Against Impeachment: A Political Document Intended to Delegitimize the Process

WASHINGTON — Breathtaking in scope, defiant in tone, the White House’s refusal to cooperate with the House impeachment inquiry amounts to an unabashed challenge to America’s longstanding constitutional order.

In effect, President Trump is making the sweeping assertion that he can ignore Congress as it weighs his fate because he considers the impeachment effort unfair and the Democrats who initiated it biased against him, an argument that channeled his anger even as it failed to pass muster with many scholars on Wednesday.

But the White House case, outlined in an extraordinary letter to Democratic leaders on Tuesday, is more a political argument than a legal one, aimed less at convincing a judge than convincing the public, or at least a portion of it. At its core, it is born out of the cold calculation that Mr. Trump probably cannot stop the Democrat-led House from impeaching him, so the real goal is to delegitimize the process.

Just last week, Mr. Trump acknowledged that Democrats appeared to have enough votes to impeach him in the House and that he was counting on the Republican-controlled Senate to acquit him. By presenting the inquiry as the work of an unholy alliance of deep-state saboteurs and Democratic hatchet-men, he hopes to undermine its credibility, forestall Republican defections and energize his voters heading into next year’s re-election campaign.

“As a general matter, painting the process as highly partisan should rally the G.O.P. and Trump base, as those groups will see the current inquiry as merely a continuation of the past three years,” said Henry Olsen, a senior fellow at the Ethics and Public Policy Center, a Washington research organization, and a student of conservative thought.

But it may also harden opposition to Mr. Trump, bolstering the impression that he considers himself above the law. That could build support for an article of impeachment that charges him with obstructing Congress in addition to any related to his effort to pressure Ukraine for damaging information about his Democratic adversaries.

The eight-page letter signed by Pat A. Cipollone, the White House counsel, and sent to Speaker Nancy Pelosi and other top Democrats outlined a bevy of grievances about the House inquiry, some procedural and others political.

It argued that “this purported ‘impeachment inquiry’” was not valid because the House did not vote to authorize it, as it did in the cases of Presidents Richard M. Nixon and Bill Clinton, and that Ms. Pelosi took it upon herself instead to declare the existence of an impeachment process by fiat. It complained that Republicans have been denied subpoena power of their own and that the president’s lawyers have not been allowed to attend closed-door interviews, cross-examine witnesses or call their own to testify.

But it also threw in a hodgepodge of Mr. Trump’s favorite objections, essentially memorializing some of his many Twitter blasts at Representative Adam B. Schiff, Democrat of California, who is leading the inquiry and has become the president’s chief target.

“You look at all the irregularities, you can come to the conclusion that this is an illicit hearing,” Rudolph W. Giuliani, the president’s personal lawyer, said in an interview. “This is the first time that a president hasn’t had the ability to have his party to call witnesses in the preliminary phase. It sounds like they’re singling him out for unfair treatment.”

Constitutional scholars, though, were not impressed. “It looks like a pathetic attempt to make a legal argument when the president is really expressing rage at the Congress for trying to stop him,” said Corey Brettschneider, an impeachment expert at Brown University. “What’s sad about it is it’s so poorly drafted and the legal arguments are so nonexistent that you wonder who’s advising the president.”

Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official under President George W. Bush, said Mr. Trump’s position was more political than constitutional.

“The White House letter’s legal objections don’t have merit,” he said. “The letter, like the ‘official impeachment inquiry’ itself, is a hardball tactic designed to achieve maximum political advantage” before the public.

Indeed, it could ultimately end up being a negotiating position. Speaking with reporters on Wednesday, Mr. Trump said he could change his mind and cooperate if the House voted to formally authorize the impeachment inquiry. “Yeah, that sounds O.K.,” he said. “We would if they give us our rights. It depends.”

As a matter of historical precedent, Mr. Cipollone was correct in saying that Mr. Clinton and his lawyers and Democratic allies were granted more rights during his impeachment in 1998 than Mr. Trump has been, at least so far. Mr. Clinton’s lawyer, for instance, was given the opportunity to cross-examine his main accuser, the independent counsel Ken Starr, during an open House Judiciary Committee hearing.

But the Constitution makes no guarantees of such rights for a president facing impeachment, simply saying that the House “shall have the sole Power of Impeachment.” Indeed, the House impeached President Andrew Johnson in 1868 without even drawing up articles of impeachment until after the vote. Legal experts said nothing in the White House letter justified a president or his administration unilaterally defying congressional subpoenas.

In fact, such resistance has been used against presidents in past impeachment efforts. One of three articles of impeachment approved by the House Judiciary Committee against Mr. Nixon before he resigned in 1974 charged that he “willfully disobeyed” congressional subpoenas, thereby “substituting his judgment as to what materials were necessary for the inquiry.”

In his report to Congress in 1998, Mr. Starr argued that among the grounds for impeachment was what the prosecutor considered Mr. Clinton’s “frivolous” and “patently groundless” assertions of executive and other privileges to thwart a perjury and obstruction of justice investigation stemming from the president’s affair with Monica Lewinsky. In that case, though, the House opted against including such a charge in the articles of impeachment passed against Mr. Clinton.

In some ways, Mr. Trump is employing a version of Mr. Clinton’s strategy, albeit on steroids. During Mr. Starr’s investigation, Mr. Clinton repeatedly sought to block testimony or documents, only to be overruled by the courts, just as Mr. Nixon was in the Supreme Court’s groundbreaking and unanimous U.S. v. Nixon decision. Unlike Mr. Trump, Mr. Clinton finally agreed to testify before Mr. Starr’s grand jury, although only after refusing six times and eventually being subpoenaed.

When the Republican-led House took up the matter, it did little original investigating of its own, relying primarily on Mr. Starr’s findings, so there were not the sort of subpoenas to resist the way Mr. Trump is now. But Mr. Clinton likewise felt outrage about the effort to impeach him, convinced that it was a partisan witch-hunt, and set about discrediting it with the public.

House Republicans rejected protections and limits sought by Mr. Clinton’s team, and his Democratic allies attacked the process, accusing the other side of railroading the president and making it an us-versus-them fight to keep wavering Democrats on Mr. Clinton’s side. House Democrats privately called their strategy “win by losing,” reasoning that the more process motions they lost on partisan votes, the more illegitimate the effort would seem.

In the end, the House voted almost entirely on party lines to impeach Mr. Clinton and, with Democrats sticking by him, the Senate voted to acquit him after a trial — the scenario that, flipping the parties, looks most likely to repeat itself with Mr. Trump.

“In one respect, President Trump seems to be borrowing from the Clinton White House playbook,” said Ken Gormley, the author of “The Death of American Virtue” about Mr. Clinton’s battle with Mr. Starr. “He is attempting to throw gasoline over the entire impeachment process in the House and light a match, in order to cause a conflagration and treat the entire process as illegitimate from the start.”

But, he added, Mr. Trump is taking Mr. Clinton’s strategy even further by refusing any cooperation at all and advancing the theory that the impeachment is an unconstitutional effort to overturn the 2016 presidential election and therefore he can ignore it.

“Not surprisingly, President Trump is adopting a take-no-prisoners approach to this new threat that presents itself to his presidency, just has he has done, often with great success, when previous threats have presented themselves,” added Mr. Gormley, the president of Duquesne University.

While Democrats ponder going to court, Mr. Trump will take his case to the court of public opinion, or at least his base. He has scheduled three campaign rallies in the next week, starting Thursday in Minnesota, then Friday in Louisiana and then next Thursday in Texas.

It seems safe to assume that he will have something to say about impeachment.

Follow Peter Baker on Twitter: @peterbakernyt.

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