The White House Is Trying to Bluff Its Way Through the Impeachment Process
The House Judiciary Committee will hold its first public hearing this week on the impeachment of President Donald Trump, convening a panel of legal experts to discuss what, exactly, qualifies an impeachable offense under the U.S. Constitution. Despite the obvious importance of the answer to this question, in a letter on Sunday, White House Counsel Pat Cipollone declined Judiciary Committee chair Jerry Nadler's formal invitation to participate in the discussion, deriding the "baseless and highly partisan" proceedings as an "unprecedented and extremely troubling denial of basic due process." If the committee elects to move forward with impeachment, they will do so with neither the inquiry's subject nor any of his legal representatives in attendance.
Like Cipollone's last unhinged anti-impeachment screed, in which he asserted to House leadership that the constitutionally-enshrined institution of impeachment is unconstitutional, this letter mostly dispenses with the particulars of Trump's conduct in the Ukraine scandal and instead offers a laundry list of gripes about the inquiry's process. The Judiciary Committee hasn't provided formal notice of the identities of the witnesses, Cipollone complains, and left the White House with insufficient time to mount a defense. Cipollone also accuses Democrats of "no doubt purposely" scheduling the hearing when Trump will be in Europe for an annual meeting of NATO country leaders—as if Trump would otherwise have personally appeared before Nadler and company to observe the debate himself.
These arguments are part of a broader Republican strategy of trying to discredit impeachment as a blatantly unfair exercise of partisan power by the Democratic Party. (Nadler's invitation, Cipollone goes on to say, "only exacerbates the complete lack of due process and fundamental fairness afforded the President throughout this purported impeachment inquiry.") During last month's hearings, which were conducted by the House Intelligence Committee under the leadership of California congressman Adam Schiff, Republicans repeatedly insisted that they were boxed out of the process and denied a fair opportunity to make their case: For example, Schiff rejected their requests to compel the testimony of the anonymous whistleblower whose complaint blew open the scandal—testimony that would be redundant in light of firsthand evidence of the president's misconduct, and that could put the whistleblower's safety at risk. The president's attorneys were not allowed to cross-examine fact witnesses, or call their own witnesses in his defense. GOP lawmakers like New York representative Elise Stefanik, meanwhile, chafed under guidelines that limited the ability of members of both parties to freely question witnesses—a stunt that earned her the president's compliments.
As an initial matter, setting ground rules for an impeachment inquiry is a privilege reserved to the party that controls the House—so, Democrats. But as the Brookings Institution's Molly Reynolds and Margaret Taylor wrote for Lawfare in October, the structure of the House's impeachment resolution likely reflects an effort to differentiate between the fact-gathering stage, which took place in the House Intelligence Committee, and the presentation of the evidence to lawmakers, which is what the House Judiciary Committee will do next. And as Nadler's invitation to Trump indicates, the president does have far more rights during this second stage: to attend, and to cross-examine witnesses, request additional testimony, and object to the admissibility of evidence, among others. By not showing up, the Trump administration is declining to exercise those rights.
Its explanations for this decision occasionally veer into absurd territory: At one point, Cipollone asserts that Nadler has "not even provided simple notice of the process that will be followed." In fact, the Judiciary Committee's procedures, which explicitly outline the president's rights, were included as enclosures in the invitation Nadler sent to Cipollone last week. It is true that under those rules, Nadler retains the authority to decide questions of admissibility, and "the Committee"—a committee comprised mostly of Democrats—gets to determine whether any proposed evidence is "necessary or desirable to a full and fair record." In other words, Trump will not be allowed to defend himself however he wants. But objections to the scope of the rules do not mean that the rules do not exist. The White House just might not like these rules, or wish that the rules afforded them more power.
Cipollone's dogged insistence on lodging procedure-related protests reflects a basic conundrums for the president's defenders: There isn't really a coherent defense for what Trump actually did here, which is try to force Ukrainian president Volodymyr Zelensky to open a sham corruption investigation into a key political rival, former vice president Joe Biden. By itself, a sitting president asking a foreign power to interfere in a U.S. election is an abuse of the public trust. Whether this conduct also involved extortion, in the form of an attempt to withhold congressionally-appropriated military aid or other diplomatic privileges, would only make its impeachable nature more apparent. To date, Republicans have been loudest when lamenting the inquiry's alleged unfairness because doing so is far simpler than trying to justify the underlying conduct.
The beginning of the Judiciary Committee phase of the impeachment inquiry suddenly puts this favorite Republican talking point on far shakier ground. For Trump, whose public position on impeachment is that it is "illegitimate" and a "hoax," participating in the hearings would lend legitimacy to the entire inquiry. But as he turns down chances to be involved in the process, his contention that the process is fatally flawed becomes more absurd than ever. Cipollone tries gamely to walk this line, asserting that even if he were to attend Nadler's hearings, it already "too late to cure the profound procedural deficiencies that have tainted this entire inquiry." Even so, for a man who insists that his conduct was "perfect," Donald Trump doesn't seem eager to take this opportunity to prove it.
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Originally Appeared on GQ
