The White House responded to the impeachment inquiry into President Trump on Tuesday with a letter arguing that the administration has no obligation to comply with congressional demands for testimony and documents. The letter is remarkable for a number of reasons, including the cynicism displayed by its author.
In his eight-page response to House Speaker Nancy Pelosi and committee chairmen, White House counsel Pat Cipollone states that President Trump will not comply with subpoenas issued by Congress. He attacks the House’s impeachment inquiry with disdain for the concept of congressional oversight. This view alone is antithetical to our constitutional structure of three coequal branches of government, each serving as checks and balances on the others. But even more disappointing is the letter’s effort to fool the American people into believing that it is actually Trump who is being treated unfairly.
Cipollone’s letter makes three main arguments. First, he argues that the process is unfair. He argues that the impeachment inquiry is constitutionally invalid because the full House has not voted to approve it. That assertion has no basis in law. The Constitution provides that the House has the sole power of impeachment, and that each chamber of Congress may determine the rules of its proceedings. The Trump administration may want to force House members to go on record with their support of an impeachment probe for political purposes, but no requirement exists in the law. To pass articles of impeachment, the House must approve them by a majority of its members, but no such vote is required merely to initiate an inquiry.
Cipollone goes on to assert that due process requires the right to cross-examine witnesses, call witnesses, present evidence, and to have the assistance of counsel. All of those protections would be provided at a trial in the Senate, but are not required or even appropriate at the impeachment phase, which is akin to the charging phase in a criminal case. Due process does not entitle a defendant to cross-examine witnesses, call witnesses, present evidence, have the assistance of counsel, or even be present during a grand jury investigation. There is no reason to think that such requirements exist at the charging stage before Congress, either.
The letter also argues that Congress is intimidating witnesses by threatening to hold them in contempt for failing to appear on the basis of privilege. He fails to mention that the privileges are based on legally unsupportable claims of absolute immunity to block their appearance as witnesses altogether.
Second, Cipollone argues that the impeachment inquiry is an effort to reverse the election of 2016 and to influence the outcome of the 2020 race. The purpose of an impeachment inquiry, of course, is to determine whether evidence supports a charge of a high crime or misdemeanor for which removal from office is appropriate. Conduct must be egregious enough to render a president unfit for office, not simply an opportunity to reverse the outcome of an election. Cipollone’s argument suggests that Trump’s conduct toward Ukraine cannot possibly be found to constitute a high crime or misdemeanor. But it is the House, through impeachment, and the Senate, through a removal trial, that decide this question, not the president.
Finally, Cipollone claims that there is no legitimate basis for the impeachment inquiry, and that instead, it is the committees’ actions that raise serious questions. Cipollone describes the call between Trump and Ukrainian president Volodymyr Zelensky as “completely appropriate,” and notes that the Department of Justice found no violation of campaign-finance laws. Regardless of whether the call violated campaign-finance laws, conduct need not amount to a violation of a federal statute to be an impeachable offense. By requesting an investigation from a foreign government of a U.S. citizen who is his political opponent, Trump arguably abused his office. And by appearing to condition $400 million in military aid on the performance of that favor, Trump risked harm to the national security of the United States by delaying military assistance intended to repel Russian aggression in Ukraine, that Congress had authorized.
Yet Cipollone contends that the real culprit here is Congress, arguing that House Intelligence Committee Chairman Adam Schiff mischaracterized the Trump-Zelensky call during a House hearing, and that the whistle-blower sought guidance from the Intelligence Committee before filing his complaint, contrary to a statement by Schiff that “we have not spoken directly to the whistle-blower.” Schiff explained that he was paraphrasing Trump’s phone call to help people understand its gravity. Additionally, there is no prohibition on a whistle-blower’s seeking procedural guidance from the congressional intelligence committees. If Schiff has behaved inappropriately, then he should be subject to sanctions. But none of this excuses the president’s betrayal of his duty to the public.
And here is where the cynicism should alarm and disgust us. This is one of President Trump’s favorite gaslighting moves — to not only deny the accusations, but to suggest that it is actually his opponent who is the wrongdoer. Trump demonstrated this tactic during a debate with Hillary Clinton: When she accused him of being a puppet for Russian president Vladimir Putin, he responded by calling her a puppet (his memorable phrase: “No puppet. No puppet. You’re the puppet!”). No matter that the accusation was a complete non sequitur.
Cipollone does the same here when he argues about procedural rights such as “due process.” His argument may sound persuasive to people who have only a passing familiarity with such terms, and are unaware that these rights do not apply at this investigative stage. The administration’s blanket invocation of absolute executive privilege puts the executive branch beyond the reach of congressional oversight, an outcome that is completely at odds with our system of government. And if the call was “completely appropriate,” then there is no need to hide the facts.
The reality is that this stonewalling to prevent the discovery of the truth is a gross deviation from our constitutional values, and is itself grounds for impeachment.