There can be no doubt that the main defense being mounted by the Trump White House in regards to the ongoing impeachment inquiry is not to mount a defense based on evidence. Instead, the defense is based almost entirely on attacking the process.
A key line of attack (when more extreme rhetoric about coups isn’t being used) is that the impeachment inquiry is “unconstitutional” or that it is an attempt to “overturn” the 2016 election.
For example, at his rally in Louisiana this week, Trump stated the following:
“They know they can’t win on Election Day so they’re pursuing an illegal, invalid and unconstitutional, bulls— impeachment,” the president thundered at his second political rally in as many days.
Indeed, this week, the White House Counsel, Pat Cipollone, sent a letter to the House outlining why the White House would not be cooperating and detailing a novel theory of how the House ought to be behaving. The letter asserts that the current process violates the constitution on the subject of impeachment and makes some claims about due process that bears no relationship to how congressional inquiries actually function.
The letter is a direct manifestation of the administration’s tactics in regards to the ongoing inquiry. They are going to pretend like the House’s processes somehow violate constitutional requirements for impeachment, and hence make the case that this specific attempt at an impeachment investigation is “unconstitutional.” This, they argue, means that they don’t have to cooperate.
This is utter nonsense.
The letter claims:
As you know, you have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process.
Except, of course, there is no “constitutionally mandated” anything about the procedures the House should use in an impeachment inquiry (nor for an actual impeachment vote).
The letter continues:
For example, you have denied the President 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 guaranteed to all Americans. You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives. All of this violates the Constitution, the rule of law, and every past precedent. Never before in our history has the House of
Representatives-under the control of either political party-taken the American people down the dangerous path you seem determined to pursue.
Emphasis in the the original.
This paragraph asserts processes that exist, yes, in a courtroom, but not in the House when it pursues impeachment. The House indicts, it does not try, that’s the Senate’s job. The claim about every past precedent is a gross mistake at best and a knowing lie at worst.
Note, again: this letter is from the White House Counsel.
The letter goes on to claim:
Put simply, you seek to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen.
I cannot emphasize enough that impeachment is a constitutional process. It is not “overturn[ing]” an election. It is formally charging a government official with wrongdoing in office and sets the stage for a constitutional process to then remove that person from office (or, in plainer terms that perhaps Trump would better understand, it is a way to fire him from his job).
If Trump is impeached and removed, the 2016 election still would have happened. And the voters will still have their say in 2020. But if Trump is impeached only, it becomes a matter of the historic record and voters will be free to assess it as they see fit. If he is removed, it will mean that he did his job so poorly, and abused his office sufficiently, that a super-majority of the Senate saw fit to fire him from his job.
Overturning an election is language to be reserved for authoritarian regimes that use extralegal powers to nullify results they don’t like (indeed, it is a type of coup).
Impeaching and removing an president is “overturning an election” only in the same way that a president losing re-election “overturns” the previous election or when a president is term-limited out of office. These are all constitutional ways in which a president can leave office.
For those who want to know what the US Constitution says about the impeachment process, here it is.
Article I, Section 2, paragraph 5 states:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I, Section 3, paragraphs 6 and 7:
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.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article II, section 4:
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.
It should be noted that Article II, section 2 states that impeachment cannot be pardoned by the president.
Also quite relevant, but not about impeachment, Article 1, Section 5, paragraph 2:
Each House may determine the Rules of its Proceeding
That last bit means that the House can proceed in this process however it chooses. The President, nor the White House Counsel, can dictate the how the impeachment inquiry will proceed.
The bottom line is this: the House can pursue this process however it likes and the only procedural requirement is that if it is going to impeach, it will need to have a floor vote.
Interestingly, when the House impeached Andrew Johnson, it first voted to impeach and then drew up articles of impeachment. Law prof Frank O. Bowman, III notes:
On February 24, the full House voted to impeach Johnson with the proviso that it would draft articles of impeachment formalizing the charges in short order.
The task of drafting the articles was delegated to a special committee, which returned five days later, on February 29, with proposed articles.
Bowman’s entire piece is worth reading, as it reinforces and elaborates on a lot of what I have noted above.
