As the White House pushes back hard against House Democrats’ impeachment inquiry, legal experts are weighing in on the validity of the objections raised by the administration -- including what rights the president has, and whether lawmakers should vote in the House first.
The White House on Wednesday issued a defiant letter, saying it would not cooperate with the impeachment inquiry looking into Trump’s July 25 conversation with Ukrainian President Volodymyr Zelensky. Democrats claim that Trump urged Zelensky to investigate Vice President Joe Biden as part of a quid pro quo involving the withholding of U.S. military aid.
While the White House released both the transcript of the call and the complaint from a whistleblower who alerted the intelligence community’s inspector general, Democrats in the House announced a formal impeachment inquiry. But White House Counsel Pat Cipollone slammed what he called a “partisan and unconstitutional inquiry” and said the White House would not cooperate. Democrats have warned that a refusal to cooperate by the White House could be a criminal act of obstruction.
As both sides stake out their claims ahead of a bruising impeachment fight, legal experts note that impeachment is not clearly defined by the framers of the Constitution.
“Both House Democrats and the White House are making political arguments…Impeachment is a political process, and so both sides are trying to win in the court of public opinion,” David Rivkin, a lawyer in the Reagan and Bush 41 administrations in the White House Counsel’s Office and Department of Justice, told Fox News. "However, the House’s political arguments happen to be false and White House’s political arguments happen to be meritorious.”
Attorney George Conway, a fierce opponent of Trump, described the letter as “an impeachable offense” by itself. Harvard law scholar Laurence Tribe said the “stonewalling” by the White House, as well as the administration's decision not to let E.U. Ambassador Gordon Sondland appear at a deposition, “signals another ground for his impeachment: obstruction of Congress.”
“The House Judiciary Committee in 1974 identified President Richard Nixon’s direction of systematic defiance of congressional impeachment inquiries by his administration as an obstruction of the constitutional role of Congress and thus a violation of the president’s duty faithfully to execute the laws,” Tribe wrote in USA Today. “Such a charge is manifestly warranted against Trump today.”
Jonathan Turley, a law professor at George Washington University gave a similar take, saying that “a president cannot simply pick up his marbles and leave the game because he does not like the other players. A refusal to cooperate with a constitutionally mandated process can itself be an abuse of power.’
"The letter rightfully raises concerns over the lack of a House vote of the body and the secrecy of proceedings," he wrote. "The Democrats have limited Republicans in their effort to question witnesses and secure material. However, that is not a legitimate basis for refusing to cooperate or supply clearly material evidence."
But Rivkin dismissed the idea that a refusal to cooperate was itself an impeachable offense.
“There’s nothing about impeachment that turns the president into a ward of the legislature," he said. "The Executive Branch has every right to defend its constitutional prerogatives, including executive privilege. Once there is a final judicial determination on whether the House or the White House are right on the document production and testimonial issues, that would have to be complied with. Until that happens, rejecting House’s demands is a perfectly appropriate course of action.”
Also unclear is the White House claim that a vote should be held to open an impeachment inquiry. Votes of the whole House were held ahead of prior impeachment hearings, but the inquiry this time was announced in a press conference by House Speaker Nancy Pelosi, D-Calif.
“Your contrived process is unprecedented in the history of the Nation and lacks the necessary authorization for a valid impeachment proceeding,” Cipollone wrote to Democrats.
Earlier this week, Turley wrote in The Hill that “the decision to avoid a full vote robs the House of the legitimacy and substance that comes from a vote of the entire body.”
“The current impeachment ‘inquiry’ rests on the authority of one person. Until the entire body votes, it remains the Pelosi impeachment effort rather than a House impeachment process,” he said.
Other lawyers suggested that while not absolutely necessary, a vote involving the full House would be a correct way to proceed.
“The correct piano chord is to call a vote, call the House of Representatives to vote on a motion to start an impeachment inquiry,” former federal prosecutor Doug Burns told Fox News. “Instead this was a highly calculated political gambit, but in the end, the House is going to determine whether they have 217 votes.”
But Rivkin told Fox News that even though he disagrees with how the House is proceeding, it is not constitutionally compelled to hold a vote or accede to other Trump demands.
“The framers left it to Congress to work out the specifics of the impeachment process," he said. "It did expect Congress to proceed in a politically accountable fashion, accountability being the major disciplining check on the use of impeachment power. But proceeding in an accountable fashion – which the House is manifestly not doing now – is a matter of upholding the constitutional values; it is not a matter of being constitutionally compelled to do so.”
But as the legal debate continues, it seems that neither Congress nor the White House is willing to shift its position and are hunkering down for an ugly political fight. Trump on Wednesday called the inquiry "a continuation of the greatest Scam and Witch Hunt in the history of our Country!"