Trump Impeachment Trial: His Defense Team Takes Center Stage — First Day Was Very Shaky

Trump Defense Team Blunder Adds to Obstruction

(House vote not needed for inquiry)

How Trump Sees Himself (One-man ruler)

(This GOP Seems to Agree)

Introduction: Quite long but accurate in detail re: The White House has declared that it would not cooperate with the impeachment inquiry, which may itself constitute an impeachable offense (as it did for President Nixon). 

The White House’s claims that the inquiry is illegitimate do not hold water, and Congress should not tolerate the deliberate defiance that has been this administration’s standard practice. 

The politics of our age demand no less, even in the face of utter recalcitrance by the White House.

Trump’s Defense Team Swings into Action: One defense manager, Pat Philbin flat-out lied saying: Congress did not vote for impeachment inquiry – ergo: this is illegal and this from W/H Counsel Pat Cipollone issued a now-infamous eight-page letter to House Democratic leadership announcing that President Donald Trump would not cooperate with the impeachment inquiry.

My Note: The legal history about that false statement is here. 

Also, my earlier post here.

While the letter set out a host of perceived grievances, perhaps none is as concerning — and misleading — as the complaint that the impeachment inquiry is “constitutionally invalid and a violation of due process” since the House DID NOT authorize an impeachment inquiry. 

The White House’s claims notwithstanding, a look at history and the law shows that Congress has broad powers and few requirements as it carries out its impeachment duties.

So, What’s Required (very simple):

#1: When it comes to impeachment, the text of the Constitution is clear – the House acts as the prosecution in formulating any articles of impeachment with their own rules – no full House vote is required or mandatory.

#2:  The Senate serves as the jury, overseen by the Chief Justice. The president cannot be convicted and removed from office without a two-thirds vote of senators present (67 from all 100).

Also, the Constitution sets out no minimum rules, procedures, or processes that are to be followed.

What does the Constitution say?

In the Cipollone letter, which contains nearly 30 footnotes, there is only one reference to a court case concerning the legal parameters of an impeachment proceeding (and it’s a ruling that was vacated just months after it was decided).

 No wonder: The Supreme Court has held that questions of impeachment procedure are a no-go zone for the federal courts.

Two impeached judge cases learned the hard way that the courts cannot overturn Congress’s impeachment rules:

Case One: The case of then-Judge (current Rep.) Alcee Hastings, who challenged his impeachment because only a committee of 12 senators, rather than the full Senate, heard the evidence in his trial before the full Senate held a vote. At first, a district court agreed that it was unfair for only a Senate committee to try Hastings, and thus ordered his impeachment overturned and remanded the case to the Senate for a new trial.

But before the ink was dry on this opinion, the Supreme Court issued a unanimous decision in January 1993 that would upend Hastings’ brief win. It cited the case that involved the removal of another federal judge, Walter Nixon Jr., who made a similar appeal concerning the role of a Senate committee in his impeachment. Nixon found no takers on the high court.

The Supreme Court held that because the Constitution explicitly confers the impeachment power on Congress — and because of the “lack of finality and the difficulty of fashioning relief” in cases of impeachment before the courts — the Senate’s procedure was not subject to judicial review. 

In short, there is scant case law on the question of the amount of process due to a president (or any other impeachable federal official) during an impeachment proceeding, and what guidance there is kneecaps Cipollone’s arguments. The Supreme Court has made clear that when it comes to the rules of impeachment, the Senate’s say is final.

But What About Due Process in the House: The Cipollone letter complains that the House has taken the “unprecedented” step of refusing to hold a House floor vote to authorize an impeachment investigation. It is true that the House voted to authorize an impeachment process when it began proceedings examining the conduct of Presidents Richard Nixon and Bill Clinton. But, as Article I, Section 5 of the Constitution makes clear, both the House and Senate make their own rules.

Ergo: There is no requirement for the House to formally vote to commence an impeachment investigation. In fact, as noted above, the House did not approve resolutions authorizing impeachment investigations into three federal judges who were subsequently impeached and removed from office: Harry E. Claiborne, Alcee Hastings, and Walter L. Nixon.

Context is here and important. The circumstances of the current impeachment inquiry differ significantly from those of the past two modern impeachments of American presidents in several important respects. Looking at the history shows why an initial authorizing vote isn’t as important in this case.

Why not: This time, there’s no IC report and the critical points.

1.  Both Presidents Nixon and Clinton faced impeachment following an outside investigation authorized by the DOJ (IC appointed).

2.  It was upon the completion of those IC independent investigations (or, in the case of Nixon, the firing of the prosecutor conducting the investigation) that the House leapt into action to formally adopt a resolution to investigate whether grounds for impeachment existed. 

3.  In the case of Nixon, then-AG Elliot Richardson appointed Archibald Cox to investigate the Watergate break-in and related matters concerning Nixon’s reelection campaign in May 1973.

4. This appointment occurred at the same time that the Senate commenced public hearings on the scandal, as did the House Judiciary Committee.

5.  Then in October 1973, Nixon’s “Saturday Night Massacre” led to the firing of the special prosecutor (Mr. Cox), which precipitated various resolutions approved by the House to authorize additional investigations.

6.  By February 1974, the House had approved a formal resolution to mandate an investigation of whether it should impeach the president. It passed 410-4.

Philbin missed this legal fact as he tried to justify the Cipollone 8-page latter refusing witnesses and documents why>

Congress has the inherent authority to investigate thus, it doesn’t need to give itself permission to do what it already can.

In the case of Clinton, then-AG Janet Reno appointed Robert Fiske to investigate various matters involving the president’s financial and real estate dealings (Whitewater scandal) in 1994, pursuant to the IC Act.

Later that year, Kenneth Starr replaced Fiske and the investigation expanded to several other matters, which ultimately gave rise to Starr’s finding in 1998 of information that could be grounds for impeachment. 

A month after the House adopted a resolution to authorize transmission of the Starr report to Congress, the House debated and then adopted a second resolution to allow the Judiciary Committee to commence an impeachment investigation of the president.

The events precipitating Speaker Pelosi’s announcement of this Trump impeachment inquiry have not been the subject of any publicly known outside investigation.

Because the S/C Mueller report was limited to the events surrounding Russian interference in the 2016 election and not current Trump misdeeds.

Thus, the House served as the full-time investigator of the president’s alleged misdeeds rather than with or by an external entity. As a result, the House doesn’t need to bless an outside entity’s investigation with the formality of an authorization vote. Congress has the inherent authority to investigate: and does not need to give itself permission to do what it already can.

Up to this point, there is plenty of time for addition procedural votes once there’s been a comparable amount of fact-finding to the Nixon and Clinton impeachments and now we have full house two Articles of Impeachment.

Total clarity: The House Committees Also Have Subpoena Power.

One of the notable features of the votes authorizing the Nixon and Clinton impeachment investigations was language granting House committees expanded powers.

The contemporary rules governing House committees largely obviate the need to confer special powers on House committees to conduct an impeachment investigation and gather information. As the Brookings Institution notes, the Nixon and Clinton resolutions allowed the House Judiciary Committee to issue subpoenas and enabled committee staff to take depositions.

Today, such authorization is unnecessary as most House committees, including the Judiciary Committee, have subpoena power, and the Judiciary Committee’s chair has the power to issue subpoenas on his own. Further, House rules permit “either a member or committee counsel to take depositions.”

In fact, one could argue that by not adopting a formal impeachment investigation resolution —one that could confer additional powers on committee chairs — House Democrats are limiting their power to the existing rules.   

The White House can make its case to the voters that the House should make use of a more elaborate process before voting on a presidential impeachment. Or, that the Democrats have pursued impeachment with unseemly zeal, or that an impeachment is not substantively justified and that the Democrats are grasping at straws.

The modern history of congressional investigations is replete with examples of the success of formal power-sharing agreements between the majority and minority, such as during the Watergate investigation.

Likewise, there are plenty of instances illustrating the futility and waste of those investigations without any semblance of cooperation, as in the Benghazi saga. The best congressional investigations involve true bipartisanship, though that requires good faith in addition to rules.

Past impeachments have also adhered to rules and norms to better safeguard the actual and perceived integrity of the proceedings. While the House could move directly to a vote on articles of impeachment without hearing the president’s side, that hasn’t been the practice.

Interesting video clip here on the topic of Trump’s defense team blasting DEM arguments but without presenting any of the supporting facts of the basic argument that the DEMS presented in their initial presentation. That clip below re: It was not Russia in 2016 - it was Ukraine (Sen. Schumer's rebuttal):

https://a.msn.com/r/2/BBZkk95?m=enus&referrerID=InAppShare&ocid=News

My 2 cents: Overall the GOP Trump defense team was weak and incoherent – offering nothing of substance; in fact, avoiding key substance. We’re apt to see more of the same next week.

Historical event run amok now due to the political spin that was expected and makes this trial seem like a segment of Trump’s latest TV show: Apprentice II.

Thanks for stopping by.