The Need for a Bipartisan Stand Against the White House Counsel Letter 

Earlier this week, White House Counsel Pat Cippolone sent a jaw-dropping letter to Congress. Dripping with contempt, it announced that the Administration has no intention of submitting any further information or allowing any more witnesses to appear before Congress’s impeachment inquiry. Dressed up in dubious legal reasoning, the letter argues that the impeachment process as presently constructed is “constitutionally invalid” because the House has not formally voted to open an impeachment inquiry. It also asserts that the way the House has conducted its investigation violates the President’s “due process rights.” 

With respect to the due process argument, the letter catalogues several procedural protections that the House is not affording the President such as the right to present evidence, call witnesses, have counsel present, and so on. In addition, the letter argues that the inquiry is fatally tainted by “illegitimate partisan purpose” and “a naked political strategy” characterized by a “transparent rush to judgment.” 

Let’s start with what the letter gets right. It is true that the full House has not voted to open an impeachment inquiry, as it did in previous cases of impeachment of a President. Doing so would add appropriate gravity to the process and make members accountable for proceeding along that track. I agree that the Speaker would be wise to schedule such a vote if she wishes to proceed with impeachment.

It is also true that many Congressional Democrats stood ready to impeach the President on the day of his Inauguration. Democrats have filed multiple impeachment resolutions since the beginning of this Administration and, attempting to force votes on them, dozens of members have supported these thinly supported efforts, including attempting to impeach the President for his tweets. Many Democrats in Congress have shown almost an eagerness to believe the flimsiest of allegations against the President and his Administration, and to drive policy disagreements into this most solemn procedure for handling high crimes and misdemeanors. 

It is also true that in the current inquiry, the President and the Republican minority in Congress have not been afforded the procedural protections the letter catalogues, including some that Congress has granted in previous impeachment proceedings. It might help promote credibility of the proceedings, for instance, to allow Republicans on the relevant Committees to issue subpoenas. The White House and Congressional Republicans are well within their rights to argue for these measures.

Where the letter gets into trouble, however, is that it tries to turn these political and procedural arguments into legal and constitutional ones. The decision to elevate general process and fairness complaints to categorical constitutional claims drastically raises the stakes in the White House’s conflict. It also makes it much more difficult for the two sides to resolve their conflict over access to documents and witnesses the traditional way, through a negotiated compromise

While past presidential impeachment proceedings have begun with a vote on a resolution to begin an inquiry and establish a special committee, there’s nothing in the Constitution which requires those steps. The procedural rules in the House of Representatives have long allowed for multiple methods of bringing an impeachment matter before the House, the establishment of a special Committee or mandate for a standing committee by a full House resolution is just one way this may be done. Indeed, other office holders have been impeached and removed without such a resolution. Multiple court decisions have made clear that Congress has broad latitude to set its own rules of procedure. (Besides, Congress has the proper authority to conduct this oversight whether or not it calls the investigations part of an impeachment inquiry; it does not magically lose that power when the “i-word” drops from the Speaker’s lips.)

The White House has asserted a unilateral right to assess the merits of a Congressional investigation and, if found lacking, refuse to participate. This strikes at the heart of our system of checks and balances.

The arguments with respect to due process and fairness similarly fail. Virtually all of the familiar procedural rights the letter demands are features of judicial proceedings, in particular criminal ones, many of them simply do not apply to Congressional proceedings. Congressional investigations have different rules and expectations than judicial proceedings. Such familiar features as attorney-client privilege, to take one example, need not be recognized by Congress. 

But even if we assume that all the rights and privileges of a judicial proceeding should apply in in impeachment proceedings, the rights claimed here would apply at a different stage of the process. An impeachment proceeding in the House is far more analogous to a grand jury proceeding, where defendants’ procedural rights are nothing close to what the White House Counsel demands. It is the Senate trial, after impeachment by the House, that is analogous to a criminal trial. In criminal proceedings the right to counsel, to open hearings, to confront witnesses, and more kick in after a grand jury indicts. Similarly, if these rights apply in impeachment proceedings, it would be after the House impeaches and the matter moves to the Senate for trial where the procedure, in the case of a President, will be overseen by the Chief Justice of the Supreme Court.

While a judicial proceeding characterized by prejudgment and bias against the defendant is odious to our Constitution, that very document vests impeachment powers in Congress. The Constitution uses the terms “sole power of impeachment” and “sole power to try all impeachments” for that reason. The Founders deliberately chose to place these powers with a political branch and not the judiciary. They understood and even expected that the House could be inflamed by partisan passion. Alexander Hamilton wrote in Federalist 65 about impeachment proceedings:

They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The solution to this political, partisan process they found was not to regulate or limit how the House, the body closest to the people, considers impeachments. The solution was to vest the actual trial and removal decision in the Senate, which the Founders expected  to weigh an impeachment proceeding and the dramatic step of removing an official far more gravely. The extraordinarily high threshold for removal by the Senate is meant to guarantee something approaching national consensus before a President or other official is convicted. 

In short, the House’s process may well be ugly, political, and driven by partisan interest. If it is, the White House’s political team should point that out at every turn. If a partisan and thinly supported inquiry leads to an unconvincing impeachment vote, it will be all the easier to win acquittal in the Senate — and to run against Democrats who pushed the impeachment next fall. That is the system our Founders designed for us.

If many of the legal arguments in the White House’s letter fail to convince, its overall thrust and implications should trouble all members of Congress, Republicans and Democrats alike. In short, the White House has asserted a unilateral right to assess the merits of a Congressional investigation and, if found lacking, refuse to participate. This strikes at the heart of our system of checks and balances.

Congress’s oversight and investigatory powers support its ability to play its indispensable role in our system. The power to conduct investigations is implicit in Congress’s impeachment powers, but it also plays a role in myriad other functions such as advice and consent on nominations, effective use of the appropriations power, and even general legislation. To be meaningful, that power must include the ability to compel testimony and production of documents. The Supreme Court has long held that “the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.”

Sadly, we live in a very partisan and polarized age. Not many politicians — in either party — will put long term institutional concerns above immediate partisan advantage. Members of the House and Senate rarely stand up to an overreaching Executive, or defend their own prerogatives, when  a member of their party occupies the White House. This was a feature of the Obama years, when Democrats in Congress could not muster a word to criticize unconstitutional recess appointments, sweeping executive orders, or prosecutorial discretion bordering on legislative nullification. Members of Congress have for years failed to, as James Madison hoped, jealously guard their prerogatives. Ambition has failed to counteract ambition, and legislative powers have slowly eroded.

The thrust of the White House Counsel’s letter, however, threatens not just continued erosion, but the destruction of a very pillar of legislative authority. If Republicans in Congress cannot be moved to forcefully push back on it based on purely institutional interests, surely they can consider their own partisan self-interest. Not very long ago we had a Democrat in the White House and at some point we will have another one. Republicans in Congress will not want to give the White House veto power over the Legislature’s ability to conduct oversight. How the current standoff is resolved will shape which way the precedent is established and have ramifications we will live with long after the conclusion of this Congress and this Administration.  

About the Author(s)

Gregg T. Nunziata

Partner at Manatt, Phelps & Phillips, LLP. He served as general counsel and a senior domestic policy advisor to Sen. Marco Rubio, including during the senator’s presidential and re-election campaigns, and previously held senior Republican counsel positions on Capitol Hill. Follow him on Twitter (@greggnunziata).