Scott Gurvey

L’affaire Trump has entered a new stage. In a scathing eight page letter to Democratic leaders in the House of Representatives, White House counsel Pat Cipollone declared that Donald Trump “cannot participate” in the House’s impeachment inquiry, complaining the “inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.”

The Trumpies of course love the letter even though it reads like Trump himself sketched it out, filling it with his long list of lies and manufactured grievances, and then handed it to Cipollone. I can imagine Cipollone struggling to take out Trump’s usual adjectives like, “lil’ Adam Schiff,” and adding some legalese. The resulting argument would get a failing grade in anyone’s first year Constitutional Law course.

Where to begin? The Constitution gives the House of Representatives the “sole Power of Impeachment” (Article I, Section 2). It does not specify how the House shall operate, other than to say “The President, Vice President and all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4). House practice dictates the procedure for the impeachment process, requiring that it pass, by simple majority, articles of impeachment.

“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. (Article I, Section 3).

There are many great commentaries on impeachment, and books as well, for readers interested in Googling for more detail. See Bob Bauer at Lawfare and Nate Robson and Mike Scarcella at Law.com.

But the bottom line is what it has always been. This is a political process, not a legal one. The outcome will be determined by the votes of elected representatives in both houses of Congress. The bar for removal from office is high and has never been met in the case of a president.

I personally would rather the House took a formal vote to “begin” an impeachment inquiry. I think that would strengthen its hand as it seeks court assistance to enforce its subpoenas. I assume Speaker Nancy Pelosi wants to delay putting members on record. But eventually articles of impeachment will have to be voted on and the record will be available for the voters to review come November of next year. A Senate vote is also likely and will create another record.

But if you insist on looking at this as a legal issue, it is clear from the language of the Framers that the House is serving the role of a grand jury in our criminal justice system. In that light the Cipollone argument fails miserably. No subject of an investigation gets due process rights at the grand jury level, except the right to invoke the Fifth Amendment protection against self-incrimination.

The Senate then is acting as the trial court. There the president will presumably have the right, subject to Senate rules, to confront his accusers, cross examine the witnesses against him and challenge their evidence. He will also have the right to present his own testimony and evidence. Then he will face the vote of the Senators, acting as jury. The Constitution requires a super-majority vote to convict and remove from office. That verdict will be final, see United States v. Nixon, 418 U.S. 683 (1974).

Trump asserts that he is not subject to the House proceeding because it is unconstitutional. He also claims that the House cannot proceed unless he consents. Clearly, this position would render the impeachment process untenable.

But beyond that argument, Trump asserts not only his right to refuse to cooperate, but also his right to prevent any employee, past or present, of the federal government, from cooperating. Here he invokes the right of an absolute monarch. This is not exactly a surprise. Trump has already proclaimed that “Article II” gives him the “right as President to do whatever I want to.”

In Nixon, the Supreme Court rejected President Richard Nixon’s claim to an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Before the Supreme Court had its say, James D. St. Clair, Nixon’s attorney, told Judge John Sirica of the U.S. District Court for the District of Columbia:

The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.

Many historians now doubt that the infamous French monarch ever said, “l‘état, c’est moi,” literally, “The state, it is I” as a statement of his absolute power. But one thing is certain, the Framers of the Constitution had two principal fears, foreign influence on the American government, and unfettered executive power. Trump seems to condone and encourage the first fear and advocate the second.

It was because of these fears that the Framers enacted the intricate set of checks and balances which, imperfect though they so obviously are, still act to protect us from tyranny today. This tyranny is exactly what Cipollone advances as the proper interpretation of the Constitution in Trump’s world. It is exactly what a unanimous Supreme Court held was not constitutional in United States v. Nixon. Cipollone admits his argument is contrary to the Nixon case. He says the Supreme Court got it wrong in 1974 and should reverse that decision.

I dissent. L’état n’est pas Donald Trump.

 

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