Schol­ars say Trump strat­egy may back­fire

White House let­ter ‘a barely-lawyered tem­per tantrum’

The Morning Call - - FRONT PAGE - By David G. Sav­age

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.

WIN MCNAMEE/GETTY

Pres­i­dent Trump, through the White House coun­sel, has flatly re­fused to co­op­er­ate with the House im­peach­ment inquiry.

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