Over the past few days, Democrats have been warning with more and more urgency that the Trump administration’s response to an impeachment inquiry might represent obstruction of justice.
White House Counsel Pat Cipollone explained the administration’s view yesterday in a letter to House Democratic leaders. The missive sprawls over eight pages, but its message can be boiled down to just five words: You’re damn right we’re obstructing.
Since Democrats took control of the House in January 2019, the White House has pursued a strategy of noncooperation, trying to slow down any inquiries, tangle them up in often absurd litigation, and generally run out the clock on investigations before the 2020 election. Yesterday morning, the administration announced that it would block planned testimony to the House by Gordon Sondland, President Donald Trump’s ambassador to the European Union. The letter formalizes that strategy and promises total, massive resistance:
Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it. Because participating in this inquiry under the current unconstitutional posture would inflict lasting institutional harm on the Executive Branch and lasting damage to the separation of powers, you have left the President no choice. Consistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office, President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.
Labeling each new destruction of precedent by Trump a constitutional crisis has become banal, but in its statement of total noncompliance, the letter may bring a crisis closer than any previous step by this president has. In its refusal to comply with what appear to most experts to be lawful congressional subpoenas, Trump is echoing President Richard Nixon’s refusal to turn over tapes to Congress during the Watergate proceedings.
That standoff was ultimately resolved in Congress’s favor. Nixon turned over the tapes, and soon after resigned. Legal experts expect that Trump would fare no better in the courts—he hasn’t this week—but he may hope to stall investigations until it’s too late for Democrats to do anything. It’s a strategy that’s worked for him before.
Even before Cipollone’s letter, constitutional experts said Trump’s attempts at stonewalling were baseless.
“He doesn’t have any power to do this. It’s just a flat defiance of an obvious congressional authority,” Frank Bowman III, a professor of law at the University of Missouri and the author of a recent book on impeachment, told me. “The House has the power to inquire into facts that would support an impeachment. The president simply has no authority to refuse to produce those facts.”
Michael Gerhardt, a law professor at the University of North Carolina and a nationally recognized expert on impeachment, agrees that Trump had no grounds for blocking testimony. “He is playing politics and nothing but politics, though the law is clear: No privilege precludes an ambassador or any other official from talking about legal violations and abuse of power,” Gerhardt said in an email.
Indeed, though the letter is signed by the White House’s top lawyer, its arguments are predominantly political rather than legal. In the first section of the letter, Cipollone lays out a few arguments based in law. He notes that the House has not held a vote to officially open an impeachment inquiry, which is true but largely beside the point; there’s no legal requirement to hold a vote at this stage. Cipollone also complains that Trump has not been given sufficient opportunity to defend himself or respond to charges, and that this violates due process.
The problem for Trump is that the Constitution is minimal but direct on the matter of impeachment, leaving the rules to the House to set. If the House were to vote to impeach Trump without offering him a chance to defend himself, it would raise political questions of fairness—but the House is only in a fact-gathering stage, trying to interview witnesses and collect information, and hasn’t even drafted articles of impeachment, which would come to a vote.
Cipollone argues that House Republicans should have subpoena power, saying that minority parties had that power during the Nixon and Bill Clinton impeachments—but in both cases, minority subpoenas would have been subject to a vote by full committee, giving the majority a de facto veto.
Finally, the letter argues that executive privilege allows Trump to prevent testimony. But as Bowman noted, Nixon v. United States concluded that the president can’t invoke executive privilege to withhold evidence in a criminal case—a precedent that would probably apply to impeachment as well. “It’s clear as such a thing can be that a president cannot exercise executive privilege to bar the House from getting information necessary to exercise its impeachment power,” he said.
The next two sections of the letter veer off into political arguments, charging that Democrats are simply trying to overturn the 2016 election and influence the 2020 election. These claims are arguable but not legally relevant. The letter also argues that the impeachment inquiry is illegitimate because Trump did nothing wrong, which is at least a clean tautology.
Cipollone’s letter offers a more sophisticated twist on Trump’s Twitter feed, on which the president defended blocking Sondland’s testimony because “unfortunately he would be testifying before a totally compromised kangaroo court, where Republican’s rights have been taken away, and true facts are not allowed out for the public to see.” But charging that your opponents are mean isn’t a legal defense either.
“Absent a privilege of some sort the ‘I don’t want to’ or ‘It’s a kangaroo court’ defense is, legally, no defense at all,” Paul Rosenzweig, a member of Independent Counsel Ken Starr’s Whitewater probe in the 1990s, wrote me in an email. “As I read the president’s tweets he is not asserting such a privilege and so his direction to the ambassador is, strictly speaking, legally groundless. And thus, I think, this is a strong case for an article of impeachment (a la Nixon) on obstructing a congressional investigation.”
With his announcement that he will refuse to comply at all with the investigation because he finds it politically distasteful, Trump will court more accusations of obstruction. The escalation seems to be the latest move by a White House cycling through potential responses. First it tried transparency, releasing a transcript of Trump’s call with Ukrainian President Volodymyr Zelensky; that only fueled the impeachment fervor. Then it tried targeted stonewalling; that hasn’t worked either.
“The president has done nothing wrong, and the Democrats know it,” White House Press Secretary Stephanie Grisham said in a statement yesterday evening. Yet several Republican senators have already said publicly that Trump acted inappropriately in asking Ukraine to interfere in the election by investigating Trump’s political rival Joe Biden. Beyond that, a growing number of Americans of all political stripes support impeachment. Even larger numbers—55 percent in a Wall Street Journal/NBC News poll published yesterday—support an impeachment inquiry. Even 13 percent of Republicans agreed.
These numbers show the uncomfortable background of Cipollone’s letter: When you’re complaining about the rules, you’re probably losing.