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Wednesday, October 9, 2019

Trump's Tantrum Over Impeachment Just Got Official

By Elizabeth Nolan Brown - October 09, 2019 at 09:33AM

Trump won't comply with impeachment inquiry requests. On Tuesday, the president's lawyer called the inquiry "partisan and unconstitutional" and told House Speaker Nancy Pelosi (D–Calif.) that the White House "cannot participate."

In a letter to Pelosi and other Democratic leaders in the House of Representatives, Trump lawyer Pat Cipollone said he was writing on behalf of the president that the House's impeachment inquiry "violates fundamental fairness and constitutionally mandated due process."

For the record, impeachment is one of the rare things the U.S. Constitution explicitly gives Congress the power to do, doling out to the House "the sole power" to start impeachment inquiries and to the Senate "the sole power to try all impeachments." It does not, however, specify what exactly this should look like.

Trump seems to think that as the House is trying to determine whether impeachment is even warranted—and before the White House answers any questions at all or submits to any information requests—he is entitled to the same rights as a defendant in a criminal trial. The letter accuses House Democrats of denying Trump "the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights," and asserts that this is one of the reasons Trump will not cooperate.

But as lawyer and national security analyst Mieke Eoyang points out, "the White House doesn't get to tell Congress how to conduct impeachment." Indeed, the president's "due process rights kick in when the proceedings move to the Senate" and the trial phase of impeachment begins. Any "due process concerns raised by the WH counsel's letter" can be negotiated at that stage. 

"Impeachment in the House is akin to a grand jury & indictment," notes Eoyang, and the House has already made allowances beyond what's permitted for the targets of a grand jury. In a grand jury proceeding, for instance, witnesses can't bring in personal lawyers and "the target's counsel does not get to sit and hear the evidence." But the House is allowing personal counsel for witnesses and letting all sides hear witness testimony. Overall, they're "being quite fair," tweeted Eoyang, adding:

This is all to say that the WH counsel's screed is premature, mistakes the nature of the proceedings, and is attempting to distract from the underlying accusations of wrongdoing.

Also, WH counsel has no legal basis for what he's arguing, and he knows it.

But reality has never stopped Trump or his staff from flinging wild accusations.

Trump's lawyer's letter insists "there was nothing wrong with the call" between Trump and the Ukrainian president and asserts that the impeachment inquiry is simply a ploy to "overturn the results of the 2016 election" and "influence the next election." Declaring the impeachment inquiry "unconstitutional," "unprecedented," and "naked political strategy," the letter informs House leaders that "President Trump and his Administration cannot participate" in the impeachment inquiry.

You can read the whole letter here.

"Even for the Trump White House, this memo is breathtakingly disconnected from all law, constitutional provisions, history, and facts," tweeted attorney and author Mike Godwin.

"This is best understood as a political document," suggests Keith Whittington at The Volokh Conspiracy (hosted at Reason):

Cipollone, on behalf of the president, has thrown down the gauntlet. The White House will not offer documents or testimony that might put the president's or the administration's conduct in a better light. The House can either choose to impeach the president based on what it knows or can discover without the president's cooperation, or it can move on. The president has dared the House to impeach him, and he has now chosen to mount his defense against possible removal in the Senate and in the court of public opinion.

This sets a bad precedent, even if the House is overreacting about Ukraine.

In the event that there is not "much of a fire beneath the smoke surrounding the Ukraine matter," that's for the House to investigate first, the Senate to judge, and the voters to respond to on election day, writes Whittington. But "if this president can simply issue a blanket refusal to cooperate with any congressional oversight of executive branch activities, then Congress should expect that future presidents will try to build on that example."

Pelosi has responded with a warning:

The White House should be warned that continued efforts to hide the truth of the President's abuse of power from the American people will be regarded as further evidence of obstruction.

Mr. President, you are not above the law.  You will be held accountable."

Related: a timeline of Trump's shifting defenses about Ukraine.


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ELECTION 2020

FiveThirtyEight takes a look at why the Kamala Harris campaign is faltering: 

At least four 2020 candidates—Beto O'Rourke, Cory Booker, Buttigieg and Harris—have run campaigns that echo Barack Obama's 2008 run: a youthful candidate without much Washington experience runs on charisma and personality more than a defined ideology or particular policy stands. Obama is beloved by Democrats, and his 2008 campaign was iconic, so it's natural that 2020 candidates would try to emulate him. But Harris, Booker, Buttigieg and O'Rourke are at 14 percent combined in national polls, suggesting that Democratic voters aren't looking for an Obama re-run.

In some ways, Harris has the same problem that Ted Cruz and Marco Rubio had in the 2016 Republican primary, when they (wrongly) thought that the GOP would be excited about nominating a youngish, non-white standard-bearer with a solid conservative record."

But writer Perry Bacon Jr. also offers a caveat:

It's entirely possible that in December or January, Democrats feel like Biden is not inspiring enough but also that Sanders and Warren have taken too many left-wing positions and are risky bets in the general. In such a scenario, Harris, along with Buttigieg, are the best positioned candidates to rise.

But a lot would have to happen for Harris to pull off such a comeback. Right now, she seems more likely to finish behind Andrew Yang than to win the Democratic nomination.

Meanwhile, in poll results:

Yes, Sen. Elizabeth Warren (D–Mass.) is now out-polling Joe Biden. This also held for a new poll from RealClearPolitics:


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