With no facts on his side

Mr. Trump’s lawyer tries and fails to jus­tify stonewalli­ng.

The Washington Post - - TUESDAY OPINION -

WHITE HOUSE Coun­sel Pat Cipol­lone was sur­pris­ingly un­lawyerly in his pre­vi­ous ma­jor let­ter to Congress, in which he de­clared that the White House would ob­struct, in any way it could, the House Democrats’ im­peach­ment probe. So there was of­fense but little sur­prise in his lat­est let­ter, this time to the House Ju­di­ciary Com­mit­tee, in which he in­formed Chair­man Jer­rold Nadler (D-N.Y.) that White House of­fi­cials would not at­tend the com­mit­tee’s Wed­nes­day im­peach­ment hear­ing.

Mr. Cipol­lone de­clared that past pres­i­dents fac­ing im­peach­ment, no­tably Bill Clin­ton and Richard M. Nixon, were treated more fairly. In fact, Mr. Clin­ton and Nixon each sent coun­sel to ar­gue their cases be­fore the Ju­di­ciary Com­mit­tee, as House Democrats have in­vited Pres­i­dent Trump to do, in­clud­ing by of­fer­ing ev­i­dence and re­quest­ing wit­ness tes­ti­mony. They also have asked whether the White House would like to send of­fi­cials to par­tic­i­pate in other hear­ings, such as Wed­nes­day’s, which will fea­ture schol­ars tes­ti­fy­ing on im­peach­ment.

In re­ject­ing the of­fer to par­tic­i­pate Wed­nes­day, Mr. Cipol­lone com­plained of myr­iad al­leged pro­ce­dural prob­lems, such as the fact that the House Repub­li­can mi­nor­ity does not have un­fet­tered sub­poena power, as the ma­jor­ity does. In fact, the mi­nor­ity’s abil­ity to call wit­nesses is sim­i­lar to that which ex­isted in the Clin­ton and Nixon im­peach­ments. The ar­range­ment is par­tic­u­larly un­der­stand­able in this case: House Repub­li­can lead­ers have based their de­fense of Mr. Trump on fic­ti­tious claims about Bi­den fam­ily cor­rup­tion and Ukrainian in­ter­ven­tion in the 2016 elec­tion. Mean­while, the pres­i­dent has re­fused to fur­nish key wit­nesses who can tes­tify about the matter at hand: his own be­hav­ior.

Mr. Cipol­lone also com­plained that the Democrats might limit what the pres­i­dent can do in the hear­ings if Mr. Trump con­tin­ued to ob­struct their law­ful con­gres­sional probe. Democrats have noted that the Ju­di­ciary Com­mit­tee can deny spe­cific White House re­quests if the pres­i­dent’s pol­icy of to­tal non­co­op­er­a­tion con­tin­ues. This is un­sur­pris­ing: The House ma­jor­ity main­tains this power and al­ways has. The Con­sti­tu­tion as­signs the House “the sole Power of Im­peach­ment” and states that the House “may de­ter­mine the Rules of its Pro­ceed­ings.” Mr. Cipol­lone is es­sen­tially ar­gu­ing that the House must sur­ren­der con­trol of its hear­ings be­fore the pres­i­dent halts his legally du­bi­ous em­bargo of those pro­ceed­ings.

Mr. Trump is the one break­ing prece­dent. The pres­i­dent has barred all ex­ec­u­tive branch wit­nesses from tes­ti­fy­ing and has re­fused to turn over rel­e­vant ex­ec­u­tive branch doc­u­ments, even when law­mak­ers have is­sued valid sub­poe­nas. Some ex­ec­u­tive branch of­fi­cials have co­op­er­ated out of a sense of duty — or re­spect for the law — while oth­ers, such as for­mer na­tional se­cu­rity ad­viser John Bolton, act­ing White House chief of staff Mick Mul­vaney and Sec­re­tary of State Mike Pom­peo, have re­fused to com­ply. Le­gal schol­ars quickly de­bunked Mr. Cipol­lone’s ar­gu­ment that pre­vi­ous pres­i­dents have been similarly in­tran­si­gent.

The White House coun­sel’s over­ar­ch­ing pic­ture of a pres­i­dent be­ing rail­roaded is false. If Mr. Trump has a sub­stan­tive de­fense, he should send ad­vis­ers to give tes­ti­mony un­der oath in­stead of com­plain­ing about the process.

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