Outside the Beltway

White House Doubles Down On Stonewalling

The White House is doubling down on its illegitimate stonewalling of valid Congressional document requests.

Doug Mataconis · Wednesday, October 9, 2019 · 19 comments

Sending the ongoing impeachment inquiry in the House of Representatives into territory unseen since the Nixon Administration, and most likely inevitably further than that, the White House informed the House of Representatives last night that it would not be complying with any request for documents, information, or witnesses in connection with what it somewhat bizarrely referred to as an “unconstitutional” impeachment investigation:

WASHINGTON — The White House declared war on the House impeachment inquiry on Tuesday, announcing that it would not cooperate with what it called an illegitimate effort “to overturn the results of the 2016 election” and setting the stage for a constitutional clash with far-reaching consequences.

In a letter to House Democratic leaders, the White House said the inquiry had violated precedent and denied President Trump’s due process rights in such an egregious way that neither he nor the executive branch would willingly provide testimony or documents.

“Your unprecedented actions have left the president with no choice,” said the letter signed by Pat A. Cipollone, the White House counsel. “In order to fulfill his duties to the American people, the Constitution, the executive branch and all future occupants of the office of the presidency, President Trump and his administration cannot participate in your partisan and unconstitutional inquiry under these circumstances.”

But in refusing to cooperate with what Mr. Trump on Tuesday called a “kangaroo court,” the president risked ensuring the very outcome he would rather avoid. House Democrats made clear that his failure to comply with their demands for information could form the basis for its own article of impeachment.

“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,” Speaker Nancy Pelosi of California said in a statement. “Mr. President, you are not above the law. You will be held accountable.”

The letter came shortly after the White House blocked the interview of a key witness, Gordon D. Sondland, the United States ambassador to the European Union, just hours before he was to appear on Capitol Hill. A senior administration official said no other witnesses or documents would be provided, putting a “full halt” to cooperation.

The president’s decision to resist across the board is itself a potentially precedent-setting move that could have far-reaching implications for the inquiry. Democrats believe that it bolsters their list of impeachable offenses, adding the stonewalling of Congress to the tally, but it could also deprive them of crucial witnesses and evidence they might need to lodge credible charges against the president.

More from The Washington Post:

The White House on Tuesday said it would not cooperate with the House’s impeachment inquiry of President Trump, arguing that the probe “violates the Constitution, the rule of law, and every past precedent” in an escalating standoff with an unbowed Congress.

In a scathing eight-page letter, the White House said the inquiry into the Ukraine scandal was without merit, complained that the president has been denied his due process rights and argued that Democrats were intent on overturning the results of the 2016 election and influencing the 2020 contest.

“To fulfill his duties to the American people, the Constitution, the executive branch, and all future occupants of the Office of the presidency, President Trump and his administration cannot participate in your partisan and unconstitutional inquiry under these circumstances,” White House counsel Pat A. Cipollone wrote to top congressional Democrats.

In response, House Speaker Nancy Pelosi (D-Calif.) signaled that Democrats were undeterred and would move ahead with their investigation focused on Trump’s pressure on a foreign leader to dig up dirt on a domestic political rival.

“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,” Pelosi said in a statement. “Mr. President, you are not above the law. You will be held accountable.”

The White House letter, which lacked substantive legal arguments and echoed Trump’s political broadsides, capped a day of defiance and challenges as House Democrats have tried to force recalcitrant administration officials to divulge potentially incriminating information over Republican objections. But it also highlights the limitations of Democrats’ ability to exercise their oversight authority in the face of an administration that appears unfazed by flouting subpoenas.

The White House’s resistance throws a new and formidable roadblock in the way of House investigators attempting to depose various State Department officials this month as they build a case that Trump abused his office by trying to pressure Ukrainian President Volodymyr Zelensky to investigate former vice president Joe Biden, a 2020 Democratic presidential candidate, and his son Hunter.

Cipollone dismissed the notion that Trump did anything wrong when he spoke to Zelensky on that July 25 call, the details of which were revealed in a rough transcript released by the White House last month.

“The record clearly established that the call was completely appropriate and that there is no basis for your inquiry,” the counsel wrote.

(…)

In its stonewalling, the State Department blocked House investigators from deposing Gordon Sondland, the U.S. ambassador to the European Union, and a central figure in the impeachment inquiry. Sondland had worked to ensure that the Ukrainians would investigate an energy company that previously paid Hunter Biden to sit on its board as a precondition for a meeting between the two heads of state.

Text messages supplied to the House last week by Volker show that Sondland coordinated with other diplomats, Trump’s personal lawyer Rudolph W. Giuliani, and a top aide to Zelensky to secure what he called the “deliverable,” while defending Trump against concerns raised by other officials that they were attempting to orchestrate a quid pro quo.

“I would love to send Ambassador Sondland, a really good man and great American, to testify, but unfortunately he would be testifying before a totally compromised kangaroo court,” Trump tweeted Tuesday.

Sondland was willing to testify, according to his lawyer Robert Luskin, but didn’t appear on Tuesday at the direction of the State Department. The order to Sondland’s attorneys not to testify came via voice mail at 12:30 a.m. Tuesday, according to Democrats.

“As the sitting U.S. Ambassador to the E.U. and employee of the State Department, Ambassador Sondland is required to follow the Department’s direction,” Luskin said.

The White House letter suggests that the administration will take similar steps to block the testimony of former U.S. ambassador to Ukraine Marie Yovanovitch, who is expected for a deposition with the panels on Friday. Attempts to reach a lawyer for Yovanovitch were unsuccessful.

Giuliani also pledged on Tuesday to disregard a House subpoena for documents related to his efforts in Ukraine.

“Let them hold me in contempt. We’ll go to court. We’ll challenge the contempt,” Giuliani said in an interview. He added that he would be “very interested” in speaking instead to the GOP-led Senate Judiciary Committee, where chairman and Trump ally Sen. Lindsey O. Graham (S.C.) promised to launch a Ukraine probe, centered on Giuliani’s testimony, to rival House Democrats’ impeachment-focused investigation

This move from the White House comes after months of similar stonewalling with respect to Congressional requests for documents and subpoenas for documents and witnesses, and it had been anticipated for several days now. As far back as a week ago when we first learned of the aforementioned text messages featured Ambassador Sondland and other officials first became public, the White House was signaling that it would not be cooperating with document and other requests related to the impeachment inquiry.

At the time, it was reported that the White House would base its argument on the idea that there had not been a formal vote by the House of Representatives to authorize an inquiry and that, therefore, the claim that the current investigation was an “impeachment inquiry” was invalid. It quickly became apparent, though, that this argument had no legal or factual basis as neither the Constitution or the existing rules governing the operation of the House of Representatives require such a vote. Admittedly, one can point to the 1974 impeachment of Richard Nixon and the 1998 Clinton impeachment as examples where the full House did vote to authorize an inquiry prior to the relevant committees undertaking a vote, but those precedents do not establish a rule.

In any case, as it turns out the White House does not raise the issue of a vote by the full House to make an impeachment inquiry “official” in its letter. Indeed, the letter, which I’ve embedded below, doesn’t appear to make any legal argument whatsoever. Instead, as many have observed, it reads more like the script for a Trump political rally or one of his White House South Lawn press gaggles. It alleges, for example, that the impeachment inquiry is invalid because it is an attempt to overturn the results of the 2016 election and to influence the outcome of the 2020 election. This is not an argument one expects from an attorney with the experience and reputation of Pat Cipollone, the current White House Counsel. It is instead an eight-page version of a Trump Twitter storm or the script of a Trump rally. And it fits in with the old lawyer’s adage that if you have the facts you argue the facts if you don’t have the facts you argue the law, and if you have neither the facts nor the law, you just argue. That’s what Cipollone is going here, he’s just arguing and in the process he’s basically just throwing whatever he can at the House even though, as is the case here, it’s largely utterly irrelevant.

As I noted above, this latest move is in some sense just a continuation of the same stonewalling strategy that we’ve seen from the White House since various House committees began conducting oversight investigations into issues ranging from the inclusion of a citizenship question on the 2020 Census to the Russia investigation to a seemingly legal request for copies of the President’s tax returns. In addition to these major issues, the White House has also played hardball on virtually every other request for documents and witnesses regardless of the subject matter. In that sense, this letter is consistent with that stonewalling process and indicates that the House will be required to go to court in order to enforce its rights to investigate wrongdoing and conduct oversight of the Executive Branch.

While this is an obvious and expected move on the part of the Administration, it is also one fraught with dangers all its own that could serve to bolster the case for impeachment. As I have noted before, the third article of impeachment against Richard Nixon centered on the fact that the President had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives.” One could see future articles of impeachment against this President making similar charges. Indeed, it’s worth noting that while Nixon was being cited for a handful of incidents in which the Administration had refused to provide documents to Congress, the list of such incidents on the part of this Administration is far longer and shows nothing but contempt for Congressional exercise of its proper role in the process of checks and balances. As such, I believe it is fair to say that this Administration is creating a far more extensive Constitutional crisis than what we saw 45 years ago. The question is what Congress and the American people are going to do about it.

Here’s the White House letter:

White House Impeachment Inq… by Doug Mataconis on Scribd