The Trump administration’s October 8 letter to House Speaker Nancy Pelosi and the three committee chairs leading the House impeachment inquiry, is a deeply political document in tone and content that distorts the law in fundamental ways. Amidst accusations of partisanship and unconstitutional conduct, the letter, signed by White House Counsel Pat Cipollone, declares “President Trump and his Administration cannot participate” in the House’s inquiry.
Far from a good faith effort to engage Congress in the normal accommodations process, in which both branches tend to move towards compromise over time, the letter’s true purpose appears to be furthering President Donald Trump’s preferred political strategy – stonewalling Congress while trying to muddy the waters with pretextual arguments that his supporters can amplify in the court of public opinion. This is all the more insidious given the Department of Justice is arguing in ongoing cases that the courts need not rule on similar disputes between the President and Congress, precisely because they should be handled through the interbranch accommodation process – combine this with a White House letter that the New York Times says “declares war” in slamming shut any cooperation with Congress, and there is no avenue for accountability.
This analysis does not attempt to catalogue all of the distortions of law and unfounded allegations in the letter, but rather to focus on two particularly pernicious aspects of it that should not get lost amidst airing of technical issues.
The White House letter distorts the nature of the impeachment inquiry and the purpose of impeachment
The White House letter has a section titled “The Invalid ‘Impeachment Inquiry’ Plainly Seeks To Reverse the Election of 2016 and To Influence the Election of 2020.” It begins with the (false) assertion that the House inquiry is an effort to impeach Trump “without regard to any evidence of his actions in office.” Of course, the inquiry is based squarely on evidence of the President’s actions in office – specifically, his efforts to get the government of Ukraine to launch investigations aimed at hurting his political opponent in his 2020 re-election campaign and at discrediting the incontrovertible fact of Russian interference in the 2016 election. These abuses of his office have been confirmed in the rough transcript released by the White House of a July 25 call between Trump and Ukrainian President Volodymyr Zelensky, in released text messages among U.S. government officials and Ukrainian officials, and other public records.
The main purpose of this section of the White House letter, however, is to allege that the impeachment inquiry is motivated by a desire to overturn the 2016 election results and on the Democratic Party’s “fear[s] for its prospects against the sitting President in the next election.” There is certainly no disputing that if the President were impeached by the House and convicted by the Senate, he would be removed from office, and that impeachment is indeed an extraordinary remedy. But imputing a purely partisan motive on the inquiry because the President is of a different party than the current majority in the House is a hollow attempt to confuse the real issues at stake.
No matter which party controls the House, if it were not pursuing an impeachment inquiry based on the President’s conduct already on display in the public domain, it would not be doing its job. And waiting for elections is not a substitute to fulfilling its constitutional role as a check on grave presidential abuse of power for personal political gain.
As law professor and impeachment historian Frank Bowman has explained, this is exactly the type of situation that the framers had in mind when they included impeachment (not just periodic elections) as a remedy for abuse of power in our Constitution:
To the founders, the main point of impeachment was that there must be a remedy when a president perverts the powers of his office, either for personal or political self-aggrandizement or when the president’s acts threaten the proper distribution of authority among the coordinate branches or otherwise offend the law or fundamental governing norms.
What’s more, the White House’s argument turns the factual situation on its head. It is Trump who seeks to improperly use the powers of his office to improperly influence the 2020 election — by inducing a foreign government to investigate his most feared political opponent, at the expense of our national security interests — and to cast doubt on Russia’s interference in his favor in the 2016 election, which adds to serious concerns that Trump is “green lighting” further election interference on Russia’s part.
This is one of the reasons an impeachment inquiry, as opposed to waiting to see if voters decide to hold the President accountable in the next election cycle, is appropriate. As Professors Lawrence Friedman and Victor Hansen note,
[A] president who arguably has taken steps to consort with a foreign power to influence his re-election and to place his own interests above the very citizens he is sworn to protect, poses a serious and ongoing risk to national security. If the allegations regarding President Trump’s conduct prove to be true, his actions would violate the public trust in the most basic sense—one so important, and so immediate, that the members of the House reasonably might believe they ought not wait until the next election for an uncertain remedy. This is precisely why the framers assigned the House the impeachment power.
In sum, the Constitution vests the impeachment power in the Congress for a reason. Precisely to ensure democratic accountability, and avoid tyranny, a co-equal branch of government needs the mechanism of impeachment to be available to remedy profound presidential abuses of authority like the one at the root of this inquiry.
The letter seeks to turn the subject matter of the inquiry on its head – Trump’s call was plainly not “completely appropriate”
The White House letter goes to great lengths to seek to white wash Trump’s July 25 call with Zelensky. While Trump has repeatedly claimed the call was “perfect,” his tendency to rob words of their meaning by turning them on their head is not new, although it continues to be of great concern to the health of our democracy. What is shocking about the October 8th letter is that Cipollone, in a written communication to Congress, embraces this approach with his full-throated defense of the plainly false assertion that there was “nothing wrong with the call.”
To be clear, the released rough transcript of the July 25 call is profoundly disturbing enough to have resulted in multiple criminal referrals to the Department of Justice by Trump appointees – the CIA’s General Counsel, and the Office of the Director of National Intelligence, and the Inspector General of the Intelligence Community (ICIG). And alongside other indications of wrongdoing leading up to and following the July 25 call, it is also at the heart of the whistleblower’s complaint that the ICIG investigated and found “credible” and a matter of “urgent concern.”
Nevertheless, the White House letter claims at least three separate times, over several pages, that the call was appropriate:
The record clearly established that the call was completely appropriate and that there is no basis for your inquiry. The fact that there was nothing wrong with the call… Your current effort is founded on a completely appropriate call on July 25, 2019, between President Trump and President Zelenskyy of Ukraine… That record clearly established that the call was completely appropriate, that the President did nothing wrong, and that there is no basis for an impeachment inquiry.
Perhaps the White House is resorting to such extremes to seek to muddy the very clear waters on this fundamental point because it is, after all, the crux of the impeachable conduct at issue. To again quote Professor Bowman, “Trump’s Extorsion of Ukraine is an Impeachable Abuse of Power”:
[T]he publicly known facts about President Trump’s interactions with Ukraine support a case for impeachment based on abuse of presidential power. Impeachment has always been, first and foremost, a constitutional defense against executive misuse of power … Mr. Trump’s behavior is a classic example of abuse of presidential power for personal or political gain, and is therefore properly impeachable…. The norms and immemorial understandings of American constitutionalism make clear that a president may not use the power of his office to request, induce, inveigle, coerce, or extort another country into doing things primarily to benefit the president’s electoral hopes. A president who does so is impeachable on that ground.
In short, the July 25 call is one of the key pieces of evidence already in the public domain showing that Trump has abused the powers of his office to serve his private interests. Others include the President’s own public statements doubling down on the very same impeachable conduct. This public evidence can’t be taken out of the daylight, so instead, the President and his inner circle are attempting to normalize it – even at the expense of their professional reputations and the health of our democracy.
A primary role of the White House Counsel is to defend the office of the presidency. When the White House Counsel instead tries to hold that office above the law, refuses to recognize the legitimacy of a co-equal branch of government — and becomes party to the distortion of reality that is a hallmark of the current President — he damages the very office he is charged with protecting.
IMAGE: WASHINGTON, DC – MAY 07: Acting White House Chief of Staff Mick Mulvaney, White House Counsel Pat Cipollone, and Principal Deputy Press Secretary Hogan Gidley listen during a Rose Garden event at the White House May 7, 2019 in Washington, DC. (Photo by Alex Wong/Getty Images)