Yesterday, Donald Trump’s White House Counsel told the House of Representatives that the White House would not cooperate with the impeachment inquiry in any way. The letter began:
I write on behalf of President Donald J. Trump in response to your numerous, legally unsupported demands made as part of what you have labeled contrary to the Constitution of the United States and all past bipartisan precedent-as an “impeachment inquiry.” As you know, you have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process.
For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans. You have conducted your proceedings in secret.
In essence, the letter claims the impeachment inquiry has no Constitutional basis since the House has not voted to initiate the inquiry and since the Republicans don’t have subpoena power.
The problem with this line of thought is that the Constitution does not require a House vote or any particular procedures. Here is what the Constitution says:
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. (Article 1, Section 2)
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. (Article 1, Section 3)
The House acts as a grand jury which does work in secret. The House investigates possible charges and if necessary constructs Articles of Impeachment which are then tried in the Senate. Because the Constitution doesn’t specify procedures, the House can do things publicly and privately or in some combination.
It appears to me that Trump is painting himself into a corner and is trying to buy some time. However, many of those following him might believe that his rights are being infringed just because he said so.
At least two of his current supporters once offered a different point of view of the executive branch’s failure to cooperate with Congress. Lindsey Graham had this to say about Nixon:
Lindsey Graham made a great argument for why a president should comply with Congress during an impeachment inquiry back in ’98 pic.twitter.com/rg5jdRhImT
— NowThis (@nowthisnews) October 9, 2019
This is the situation we are now in with Trump. He has repeatedly failed to comply with requests for information and subpoenas or allow his staff to comply.
Trey Gowdy, who is now going to assist Trump in his defense, once agreed it was wrong to withhold information.
The power of impeachment, per the constitution, lies with the House of Representatives. The @gop has ZERO agency to dictate terms.#TreyGowdy knows it’s wrong to deny Congress documents in an investigation – why don’t you? pic.twitter.com/n2WfDEQWtq
— David Lopez (@Data4Logistics) October 9, 2019
Trump’s letter, in essence, argues that the Constitution is unconstitutional. Trump wants to drive the process but has no authority to do so.