TLDRUpFront: The White House responded to the House’s request to participate in the inquiry with a blanket rejection. The House had offered the opportunity for the President’s lawyers to be present as well as requesting witnesses and documents. In rejecting the request, the White House is making a rhetorical, rather than Constitutionally valid, appeal. Analysis of key arguments by the White House and the Constitutional issues at play in this post.
FullContext in the Back:
First, we always want to understand the relevant laws at hand, which in this case is found in the Constitution. Quoted below, emphasis added:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. (ART I, Sec 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. (ART I, Sec 3)
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. (ART I, Sec 4)
That’s it. The phrase “sole power” is emphasized because it means that the House, and the Senate, can independently do whatever they want within their respective spheres. This is the double-edged sword President Trump is facing when people (rightfully) argue that the Senate need not even hold a trial even if he is Impeached, and thus not hold him accountable. It can hold a trial, conduct it in any way it wants, establish whatever standards of evidence wants and as long as the Chief Justice presides and conviction doesn’t occur at less than 2/3rd’s, that’s the Senate call.
That’s what sole power means.
Likewise, the House could impeach President Trump over his hairdo if it wanted too. “Sole power” means “sole power.” There are no legal or due process protections in impeachment because impeachment is a political, not legal act. This is explicitly specified in the ART I SEC 4 part I quoted, which limits the punishment of impeachment to removal of office and disqualification to hold future offices. A later trial conducted with legal procedures and protections may find them guilty for additional punishment. But the act of impeachment itself, as an inherently political act, is limited to an inherently political outcome, the removal of a politician or confirmed appointee from office.
The letter raises many complaints, concerns, and grievances which make excellent fodder for talk show hosts but only raises three key arguments which I’ll handle in brief order here. Also don’t blame me on the punctuation of the section headings, it looks like a staffer fond of founding fathers decided to capitalize important words.
Your “Inquiry” Is Constitutionally Invalid and Violates Basic Due Process Rights and the Separation of Powers.
I don’t know where to begin. The House has the “sole power” of impeachment, and thus it is impossible for it to be Constitutionally invalid, there is no due process for what is an inherently political act because impeachment is not an enforcement of the law, which is specifically called out in Art I Sec 4 final clause.
This entire section is a not-so-subtle of the Executive to dictate terms, in the form of procedures, rights, and privileges, in the event an Impeachment should proceed.
About the only thing that’s remotely viable as a point of contention is the long-standing disagreement between where Executive privilege begins and ends. The pearl-clutching on this part on the part of the left is a little bit disingenuous considering every President: Trump, Obama, Bush, Clinton etc. etc. going all the way back to Washington has invoked Executive Privilege at one point or another on something the House is asking. And the takeaway, especially in United States v. Nixon, is that a President’s executive privilege is limited – and the arbitrator of when it applies, will be the Supreme Court. Not the WH attorney on behalf of the President.
II The Invalid “Impeachment Inquiry” Plainly Seeks to Reverse the Election of 2016 and To Influence the Election of 2020.
This is wrong on its surface as the same Constitution which authorizes the Electoral College and procedures wherein President Trump won the office, despite losing the popular vote, is the same Constitution that vests the House with the ‘sole power’ to initiate impeachment proceedings. Even in the remote chance of a successful conviction in the Senate Trial this would not ‘overturn’ the 2016 elections. President Trump was chosen by the electors alongside Vice President Pence. And if President Trump is removed from office Vice President Pence, the lawfully elected Vice President, would take his duties on. That assumes it even gets to a trial in the Senate.
Even if we assume, for the sake of discussion, the premise is valid, and this is solely a job to reverse the election…that’s a valid authority of the House to try. The House is the “fast-gear” of Congress in that it represents the popular will of the last mid-term. And it certainly could try, if it believes it has the political consensus of the nation, to see the 2016 election undone if that be the will of the majority who put Representatives in office. There is a huge risk to this. They could be wrong and thus cost them the election in 2020. This is why impeachment is ‘inherently political’ process because everything about it is political. Not just in the sense that these are lying cheating thieving politicians, but at every stage to proceed or not to proceed is an inherently political calculation that cannot, and never has been, reduced to a binding set of rules imposed by a non-political source. It can’t do it on its own, as it needs the “slow-gear” Senate to convict.
III There Is No Legitimate Basis for Your “Impeachment Inquiry”; Instead the Committee’s Actions Raises Serious Question.
See sole power clause of Art I Sec 2. Again, legitimate basis is not a standard in an impeachment effort unless the House or Senate, using its “sole power” decides to subject itself to such a standard. Aside from that, President Trump has admitted, he has released summary transcripts, and corroborating evidence has been obtained by a non-partisan government official (the ICIG)…this is sufficient for a ‘legitimate basis’ test, if there was one.
Polemics over Persuasion
The letter itself does not look like a legal argument or briefing before the Supreme Court where this is inevitably heading, insomuch as it does a closing statement to the jury or an opening salvo in a civil dispute. This is a political document, designed to set a narrative for the American public while trying to dictate terms to Congress.
I can completely understand this being a preemptive motion or letter between plaintiffs in a civil case, but it is an exceptionally weak document given the level it is issued at. It asserts plainly incorrect powers of the Executive to stymie the Congress in areas that the Constitution gives explicit authority and “sole power” to the House and the Senate, it mistakes the nature of impeachment to being that of a court of law and thus subject to those provisions (which it is not), it fails every falsification test in that – if this letter were accepted as valid, no Congress ever could have oversight on any President. If the validity of a Congressional impeachment proceeding is determined on the perception of ‘legitimate basis’ by the Executive branch, then impeachment is meaningless.
As a narrative it also fails – though the audience its intended for may not notice. The President presents an image of a tough fighter, a brawler. And he is in any arena where he can control all the aspects and ensure the outcome. On Twitter, among subordinates. But there is a trend in President Trump – both in foreign policy and domestic issues to play avoidance where he may not hold all the cards or ambiguity makes uncertain if he’ll come out the other side looking a ‘winner.’ Pretend this were a game of away football – even if we accept that the other team plays dirty, the refs favor the home team – it’s still incumbent to get out of the locker room and onto the field to play ball. And it’s not like there won’t be a home game (in the Senate) at some point in the future. Instead the President and his legal team has him hiding in the locker room of the White House, a brave Sir Robin who on seeing the battle ahead girded his loins turned and rode the other way.
Source of Letter: https://www.scribd.com/document/429357573/White-House-Letter-to-Speaker-Pelosi-Et-Al-10-08-2019
TLDR overview of executive privilege usage and exceptions:
And a much more detailed review by LawFareBlog of recent assertions of Executive privilege not just to protect Executive information, but as a specific effort to “countermand” a co-equal branch of government.