Scholars say Trump strategy shaky
White House letter ‘a barely-lawyered temper tantrum’
WASHINGTON — Constitutional lawyers said Wednesday that President Donald Trump’s vow not to cooperate with the impeachment inquiry is both unprecedented and unlikely to spare him from being formally charged by the House.
In fact, they say, it may only increase the chances that he will be impeached.
The Constitution says the “House of Representatives shall have the sole power of impeachment,” and it does not give the president a specific role in the process. A president is in some sense like an ordinary defendant who may be subject to a criminal investigation and an indictment, all without his participation or involvement, scholars say.
“The president’s cooperation is not required or needed,” said University of North Carolina law professor Michael Gerhardt, an expert on impeachment. And “the House may make that defiance grounds for impeachment,” he added, noting that in 1974, a House committee approved articles of impeachment against President Richard Nixon based in part on his refusal to comply with congressional subpoenas.
Though both Nixon and President Bill Clinton tried behind the scenes to slow or stop impeachment proceedings, they also attempted to cooperate at times, or at least appear to, out of respect for the process and fear they might look like they were hiding something.
“There is no precedent for the president doing what President Trump is doing here: saying I will flatly refuse to cooperate and ordering all employees of the executive branch to refuse to cooperate as well,” said professor Frank Bowman, who teaches impeachment law at the University of Missouri and Georgetown.
In Tuesday’s eight-page letter to House Democrats, White House Counsel Pat Cipillone pronounced Trump innocent of wrongdoing and the inquiry “unconstitutional.”
He said Trump’s July 25 phone call asking the new president of Ukraine to do him “a favor” and investigate former Vice President Joe Biden and his son Hunter was “completely appropriate. The president did nothing wrong, and there is no legitimate basis for an impeachment inquiry.”
For his part, the former vice president made his most direct call yet for impeachment Wednesday, just hours after Trump tweeted that the Democratic-led inquiry was tainted with political bias and should be terminated “for the good of the Country.”
China, Biden said, “was the third foreign power that we know of that (Trump) has asked in clear, unmistakable language to intervene on his behalf in the democratic proceedings of the United States,” the former vice president said, referring to public remarks Trump made last week on the White House lawn.
“President Trump has indicted himself by obstructing justice, refusing to comply with a congressional inquiry … he’s already convicted himself,” Biden said.
Legal experts say Trump’s actions were exactly the kinds of things the framers were thinking of when they included an impeachment provision in the Constitution.
Trump has acknowledged that even as he asked Ukraine to investigate one of his political opponents, he had ordered that nearly $400 million in aid to Ukraine be withheld.
The White House letter suggests that the inquiry is invalid because there was no formal House vote to launch it, and that Trump and Republicans have so far not been given the right to see evidence and call witnesses.
Based on this conclusion, Cipillone writes, “President Trump and his administration cannot participate in your partisan and unconstitutional inquiry.”
Trump again defended his decision not to cooperate, calling a whistleblower’s complaint about his call with Ukraine’s leader “a fraud being perpetrated on the American public” and saying Republicans are being treated unfairly. He repeated he was being vilified for “a perfect phone call.”
But the president also undercut his no-cooperation argument Wednesday by putting conditions on his willingness, saying he would cooperate only if the House held a vote and Democrats would “give us our rights.”
Lawyers took to social media to express surprise and disdain, noting that no such rights or requirements exist in the Constitution.
“This letter is bananas. A barely-lawyered temper tantrum,” tweeted Gregg Nunziata, a former counsel for Senate Republicans.
University of Texas law professor Steve Vladeck said it was remarkable for the top White House lawyer to say in writing that it “is completely appropriate for the president of the United States to actively solicit foreign intervention in U.S. presidential elections. Let’s not lose sight of just how insane that is.”
Trump’s stonewalling of impeachment comes as polls find that Americans are more likely to approve than disapprove of the inquiry, even as they divide on whether Trump should be removed from office. A new Washington Post-Schar School poll finds 58% supportive of the decision by Congress to launch an impeachment inquiry that could lead to Trump being removed from office. About half of all Americans also think Congress should remove Trump from office.
The Washington Post and Associated Press contributed.