The leading headline on the New York Times site on Tuesday evening was, “White House Declares War on Impeachment Inquiry.” That refers to the astonishing letter produced by the White House counsel’s office declaring that the impeachment inquiry is invalid because the Democrats are seeking to overturn the 2016 election. Since impeachment, by definition, is a constitutional process to overturn an election, that contention is embarrassingly daft.
But that’s beside the point. This document signals that the White House has decided to formally defy the Congress and challenge its clear constitutional power to check a president who has committed treason, bribery or other high crimes and misdemeanors. The Trump administration has declared that the concept of checks and balances is no longer operative in the United States Constitution. In fact, I don’t know if we can be sure anyone in the White House or the Republican Party thinks the Constitution is still operative at all.
As Stephen Colbert put it late on Tuesday:
It wasn’t just the comedians saying so. Conservative legal scholars and Republican insiders have joined in:
Ok, *now* there’s a constitutional crisis. (Just waiting for the right time to say that.) https://t.co/9LblNF4UwS
— Orin Kerr (@OrinKerr) October 8, 2019
Indeed this is a very strange “legal” document, reminiscent of the amateurish James Comey “firing” memo that former Deputy Attorney General Rod Rosenstein produced for President Trump. It sounds exactly the way the president would sound if he could write in semi-intelligible language. The whole thing is basically a Donald Trump rally rant without the nasty nicknames.
It attacks House Intelligence Committee chairman Adam Schiff, D-Calif., in particular, for his recent public paraphrase of the famous phone call between Trump and the Ukrainian president — contending, bizarrely, that it proves the president is innocent of wrongdoing. Trump and White House counsel Pat Cipollone apparently see this banal event as some kind of smoking gun, even though anyone who watched the Intelligence Committee hearing had no confusion about the matter, and the “rough transcript” the White House released has been read by far more people than saw that hearing. The president’s own words are the problem, not Adam Schiff’s.
By way of “legal” defenses, the White House offers the Department of Justice decision that Trump did not commit a campaign finance violation, which is both highly debatable and completely irrelevant. The letter also fatuously asserts that because Ukrainian President Volodymyr Zelensky, looking like a frightened man in a hostage video, said that Trump didn’t “pressure” him, the case is closed.
These “factual” rebuttals to the impeachment inquiry bear a striking resemblance to Trump’s Twitter tantrums of the past few days. Indeed, it’s fairly obvious that Trump himself dictated the contents of the letter — something that you have to believe happens more often than not with White House communications.
Certainly, the argument that impeachment is “illegal” because the Congress is attempting to overturn an election could not have been drafted by an attorney who plans to practice law after his or her stint in the White House is over. One can only assume that applies to Cipollone, who signed this vacuous document with a flourish.
If the White House argument was shrill and inelegant, President Trump’s overcaffeinated lawyer Joe diGenova, appearing on Laura Ingraham’s Fox News show Tuesday night made it sound downright genteel by comparison:
What you’re seeing is regicide. This is regicide by another name, fake impeachment. We get first one anonymous informant, then a second anonymous informant. I refuse to call them whistleblowers. These two nonentities are suicide bombers that the Democrats have unleashed on the democratic process. … It’s pretty obvious that this first suicide bomber who sent that complaint to the inspector general was a paid Democratic operative of the Democratic Party.
He said more than he meant to say there with the word “regicide,” which is not typically employed in American politics. Donald Trump really does believe he is a king. Here’s something he tweeted just last week:
As the President of the United States, I have an absolute right, perhaps even a duty, to investigate, or have investigated, CORRUPTION, and that would include asking, or suggesting, other Countries to help us out!
— Donald J. Trump (@realDonaldTrump) October 4, 2019
Surely it’s a coincidence that he has only seen fit to exercise his “absolute right” in pursuit of his political enemies.
It seems that Trump’s accomplices in the White House, the Department of Justice and among congressional Republicans are prepared to defend this position. The DOJ has held that a sitting president can’t be indicted because the Constitution specifically orders a political process for presidential misconduct. That was the reason Robert Mueller did not file obstruction of justice charges against the president overwhelming evidence of his crimes.
Now the White House counsel has declared that this alternative process is illegitimate because it is political and therefore the American people must make the final decision in the next election. Mind you, the president has specifically been accused of attempting to sabotage the next election. It’s a truly awe-inspiring Catch-22.
Republicans in Congress seem to be coming around to the idea that they can beat this by pretending that the Democrats are breaking some nonexistent rule, even as the White House has decided that the Constitution is no longer in force. Senate Majority Leader Mitch McConnell lugubriously announced:
So far, the House has fallen far short by failing to follow the same basic procedures that it has followed for every other president in our history.
As if McConnell were some kind of a stickler for procedure. (Cough, cough, Merrick Garland, cough.) There have only been three attempts to impeach previous presidents, and in the first of those, in 1868. “the House voted to impeach before even deciding what articles would be the basis for it.” The idea that there are long-established precedents that the House is failing to follow is absurd.
For now, the official GOP talking point is that the process is unfair, which again sounds as if it came from Donald Trump’s Twitter feed. No five-year-old whines and cries as much about “unfairness” as the president of the United States. Unfortunately, at least some of the punditry is prepared to agree, suggesting that the Democrats must capitulate to the president’s demands lest the public turn on them. Unfortunately, the only thing the White House will agree to is for the Democrats to abandon their inquiry:
Senior administration official, in call orchestrated by White House, declined to specify what would need to change for White House to cooperate with impeachment inquiry. A "full halt," official says on the call, of interviews or document requests.
— Josh Dawsey (@jdawsey1) October 8, 2019
The question before us now is whether the courts will back this imperial view of the presidency, and if they don’t, whether or not Trump will adhere to their rulings. The White House has more or less respected judicial actions up until now. But that was before this declaration of “war” — a war Trump and his henchmen are clearly determined to win by any means necessary.
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