Trump to Congress: Drop Dead!

Enough of this “Mr. President” stuff. The proper way to address Donald J. Trump is now “Hail, Caesar!”

Trump has made it clear for a long time that he regards the legislative branch as a pesky nuisance, an irritating check on his power, an outmoded relic of an earlier, excessively democratic era. Trump has already defied Congress in many ways and taken unprecedented steps to curb its powers.

Now, the man who would be king has escalated his war on Congress to an even more dangerous level. Trump has completely rejected the House of Representatives’ right to conduct oversight of his administration by using its ultimate power, that of impeachment. This is a direct assault on the separation of powers between the executive and legislative branches, which has been fundamental to preserving our democracy during previous periods of stress.

The White House has announced that it will not cooperate, in any way, with the House of Representatives’ impeachment inquiry. The Administration will not provide any documents requested by the Congressional committees that are investigating the facts and circumstances surrounding Trump’s call with Volodymyr Zelensky, the Ukrainian President.

The Administration has ordered key government officials, including Gordon Sondland, not to appear before Congress. Sondland, the U.S. Ambassador to the European Union, was deeply involved in the negotiations with the Ukrainians about the conditions for securing a meeting with President Trump in the White House (and, probably, the release of $420 million in military aid).

The Man Who Would Be King

The President’s Right to Choose…Not to be Impeached

To justify this course of action, Pat Cipollone, the White House Counsel, has put forth the remarkable proposition that the Administration can refuse to cooperate with Congress because it considers the impeachment inquiry “partisan” and “unconstitutional”. That conclusion is presumably based on the President’s great and unmatched wisdom regarding legal matters. This is a radical new approach to the separation of powers and Congress’ ability to conduct oversight over the executive branch, in general, and impeachment proceedings specifically.

As a legal document, Cipollone’s eight-page letter would not get a passing grade in a reputable law school. This is, instead, a highly political document, the opening salvo in the Administration’s attack on the “legitimacy” of the impeachment inquiry.

Cipollone starts off by declaring that Trump’s phone call was “completely appropriate”, even though the record shows that the President was putting pressure on the Ukrainian leader to investigate Joe Biden. However, as Ellen Weintraub, the chair of the Federal Election Commission, recently reminded Americans:

“It is illegal for any person to solicit, accept or receive anything of value from a foreign national in connection with a national election. This is not a novel concept. Electoral intervention from foreign governments has been considered unacceptable since the beginnings of our nation.”

Cipollone tries to bolster the case by raising some due process issues and by attacking Rep. Adam Schiff, the chair of the House Intelligence Committee, on false, spurious grounds. But his main argument is that the present impeachment inquiry is so tainted by partisanship that Congress doesn’t have a legitimate basis for conducting it.

Under this Orwellian logic, the President and his advisers can decide whether or not there exist constitutional grounds for questioning his conduct. So they can tell Congress to back off if they think the proceedings are “unfair” (a favorite Trump phrase).

The new approach is very convenient, particularly since previously released documents, such as the transcript of Trump’s phone call with the Ukraine President and the whistleblower’s complaint, have already raised “deeply troubling questions”. At least, that’s how Senator Mitt Romney (R-Utah) saw it.

But the Constitution Poses a Problem for Mr. Trump

However, there are some fundamental problems with the White House’s reasoning. The first obstacle is the Constitution, which grants Congress the power to impeach in, shall we say, rather pithy terms:

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. (Article 1, Section 2)

The Senate shall have the sole power to try all impeachments…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 1, Section 3)

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 2, Section 4).

So the ground rules are fairly simple. The House has the sole power of impeachment, that is, to investigate the President’s actions, and the Senate conducts the trial. The President can be convicted for treason, bribery or other “high crimes and misdemeanors”, which are taken to mean abusing his office. The Constitution does not say that Congress’ power to institute an impeachment proceeding is “subject to the approval of the President”.

The Constitution allows the House to establish its procedures for an impeachment inquiry or proceeding; the document does not specify any due process safeguards. Congress and the Administration might, eventually, agree on some due process guardrails, as happened during Bill Clinton’s impeachment. This would be particularly important if the impeachment advances to a trial in the Senate. But the Constitution does not give the White House the right to stonewall an impeachment process because of its purported concerns about due process.

Which Impeachment Proceeding Has Not Been “Partisan”?

Furthermore, all previous impeachment proceedings (all three, that is) have been “partisan”, of course. The President’s own party doesn’t lead the charge to kick him out of the White House. And it is an unfortunate fact of life that many Congressional inquiries are very partisan; that is part of our democracy.

Hillary Clinton and other Obama Administration officials undoubtedly thought the interminable hearings on the Benghazi incident were highly partisan and a waste of time. Nonetheless, they cooperated with the Republicans as a matter of course. Clinton testified at length on the Benghazi affair (and left her Republican questioners looking rather foolish).

Here’s one irony: Trump wants to bring on Trey Gowdy, the former Representative who conducted the Benghazi hearings, as a special adviser on dealing with the impeachment inquiry. Gowdy would be unpaid, of course, like Rudy Giuliani, Trump’s personal lawyer.

So the Administration does not have the law on its side in this battle. Unfortunately for Trump, the facts are not on his side, either. So the President is desperately trying to prevent further damaging disclosures. Trump and his advisers know that he is in great danger, regardless of what Sen. Mitch McConnell (R-Kentucky) says. If Trump loses in the court of public opinion, his Presidency will end.

Public Opinion Is Shifting Against the President

Republicans in Congress stood squarely by President Richard Nixon for two years during the Watergate investigation. They fought Democratic attempts to interview Administration officials and obtain documents. However, Republican leaders in the Senate finally abandoned Nixon, after public opinion turned against him. Voters came to see that Nixon had lied to them and he had obstructed investigations into the break-in at the Watergate complex. Realizing that he was finished, Nixon resigned shortly before the House was about to vote on whether to impeach him. We are starting to see a similar shift in public opinion now, which clearly worries Trump and his staff. Based on a recent poll from Fox News, more than 50% of voters agree that the House should conduct an impeachment inquiry and Trump should be removed from office. That is an abrupt rise from 42% before the Ukraine phone call became news.

However, according to some other well-established polls, a majority of voters favor an inquiry but most of them have not yet concluded that Trump should be removed from office.

That’s reasonable; voters want to see the facts. It’s the Democrats’ job to provide those facts and educate them. After the debacles of Robert Mueller’s and Corey Lewandowski’s testimony, the Democrats know that in the impeachment hearings they must paint a clear, compelling picture of Trump’s misdeeds.

That was never going to be an easy task. Now, Trump and his minions are trying to make it Mission Impossible. Let’s hope that Nancy Pelosi, Adam Schiff and the other Democratic leaders are up to the task.

If they’re not, you should start practicing that “Hail Caesar!”

The Wall Street Democrat