While this move to escalate the tension between the Democratically-controlled House and the Trump Administration will play well with Trump's supporters, who revel in the idea of a no-holds-bar fight with ideologically opposed parties, Trump's outward contempt for the House risks a more aggressive push for his impeachment.
Although Trump holds the Democratic leaders in Congress in disdain, congress is obliged to oversee the actions of the Executive Branch. This is all part of the checks and balances of the U.S. Constitution, which seeks to ensure that no one branch of government dominates over the other two. It is a power meant to guard against tyranny and authoritarianism.
Given the gravity of the current situation, the President must be willing to provide information to Congress, and make members of his Administration available for testimony.
In this regard, some communications with the President may be privileged due to national security or the public interest. But a wholesale refusal to cooperate with congressionally issued subpoenas can hardly be justified, especially after the President himself released a memorandum of a telephone call between Trump and Zelensky where Trump clearly requested the Ukrainian President's help in gathering dirt against Trump's political rival, Joe Biden. As the head of the Federal Elections Commission confirmed in June of this year, the act of soliciting something of value (in this case research on an opponent) in connection with a federal election is in and of itself a violation of law. If the President pressured Ukraine by withholding congressionally approved military aid, his behavior becomes all the more egregious.
In the middle of this situation stands the U.S. Ambassador to the E.U. Trump dismissed the U.S. Ambassador to Ukraine, Marie Yovanovich, because she stood in the way of Trump's efforts to have Ukraine investigate Joe Biden and his son, Hunter. Despite the fact that Ukraine is not a member of the European Union, Sondland took over the role of coordinating the U.S. Government's policy with respect to the Ukraine. Recently, text messages involving Sondland surfaced, strongly suggesting that Trump was using the military aid to pressure Ukraine. Sondland's testimony, therefore, is important to determine the extent of the President's malfeasance.
Trump's refusal to permit Sondland, or any other member of the Administration, to cooperate with the House inquiry appears as a powerful indication that Trump has something to hide. Moreover, given that Robert Mueller and his team of investigators have already documented Trump's tendency to obstruct official investigations, the President is courting yet another reason for his impeachment; that is obstruction of Congress.
In this regard, the President's Counsel charges that the impeachment inquiry violates the President's due process rights, and fails to follow accepted procedures from prior impeachment inquiries. Cipollone's criticism of the House is misguided as he fails to recognize the purpose behind the separate steps of the impeachment and removal process, as well as the breadth of authority the Constitution grants the House over impeachment proceedings.
The Constitution is not concerned with the personal rights and interests of the person who happens to occupy the Office of President. Nor should it be. The Constitution is concerned with the well-being of the Republic. In this regard, the President acts as a fiduciary, a person who is required to suppress his or her own personal interests, in favor of making decisions that are in the best interests of the people of the United States.
This is why impeachment is not a criminal proceeding, nor should it be treated as one. Impeachment is about the integrity of the U.S. Government. At one point in his political career, the President's staunchest defender in the Senate agreed with this principle. Senator Lindsey Graham, serving as a Representative in the House of Representative in 1999, said of impeachment:
- You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body[, the House of Representatives,] determines that your conduct as a public official is clearly out of bounds in your role. . . . Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.
At the time, Graham was arguing in favor of the impeachment of President Bill Clinton, who lied while under oath about a sexual relationship he had with a White House intern. Graham not only pressed for Clinton's impeachment in the House, but also served as a House Manager during Clinton's trial in the Senate. As Manager, Graham was tasked with presenting the reasons why the House concluded Clinton should be removed from office.
Yet, consistent with the President's narcissism, Trump's public defense against impeachment has, many times, focused on Trump's personal interests, and not the best interests of the United States. Thus, Trump makes claims concerning personal legal rights, like the argument that his lawyers should be permitted to cross-examine witnesses and call witnesses of their own.
But impeachment is not a criminal proceeding. It is a political one. Article I of the Constitution grants the House of Representatives "the sole Power of Impeachment." There are no other provisions in the Constitution which define the role of the House in impeachment, or the procedures that the House must follow. It is therefore up to the House itself to define its own rules and proceed accordingly.
The Constitution is very specific on effects of an impeachment. It stands as but the first step in a process to determine whether to remove a person from civil office. Pursuant to Article II, once the House has impeached the President, the Senate then holds a trial, with the Chief Justice of the Supreme Court presiding. The Senate can only convict with a two-thirds majority. Article II, Section 3, Clause 7 of the Constitution limits the effect of impeachment:
- 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.
The Constitution may use words such as "trial" and "conviction" which are reminiscent of criminal law. But it is clear that impeachment is not meant to be punishment. The Constitution reserves the decision on whether a person removed from office will be subject to any criminal proceeding and criminal punishment to the appropriate law enforcement authorities.
Nonetheless, analogies can be made between criminal process and the impeachment and removal of a president. In this regard, impeachment can be seen as similar to a grand jury proceeding, through which a prosecutor can seek an indictment. This is the decision to charge a person with a crime and hold a trial. But even in criminal law, at that first stage of a criminal prosecution, not all of the personal rights enumerated in the Constitution apply. A person subject to a grand jury proceeding is not entitled to the right of legal counsel or the right to cross-examine witnesses. Moreover, the Government in a grand jury proceeding is not required to present evidence that favors the accused.
To support the argument that the House is proceeding unfairly, the White House relies on certain procedures followed in prior impeachment processes. But again, this fails to recognize that the House has the "sole Power of Impeachment." The House is not bound to follow any procedures established in prior impeachment proceedings. In addition, because impeachment is a political act, not a criminal law proceeding, it is not subject to judicial review. Under the political questions doctrine, the courts will not hear a case when the Constitution textually commits the issue to one of the political branches of government, that is Congress or the Executive. Because the text of the Constitution unequivocally gives the power over impeachment to the House, the courts will not review the exercise of that power. What process the House will follow that leads up to a vote on articles of impeachment is simply up to the discretion of the House and its leaders.
Another argument that Trump uses to support his decision to thwart the impeachment inquiry is that the Democrats in the House are attempting to overturn the 2016 presidential election. He likens impeachment to a coup. But again, impeachment and removal from office are powers granted the House and Senate in order to protect against the abuse of office by the President. It is an entirely appropriate procedure to invoke when a president uses his authority to conduct foreign policy in manner that benefits himself privately. The Constitution protects against the abuse of the impeachment and removal power by dividing authority between the House and the Senate. Thus, impeachment itself does not remove a president from office. Rather, he must be convicted after a trial in the Senate. Moreover, in order to convict, the Constitution requires a super-majority of two-thirds before a president can be removed from office. Safeguards therefore exist to ensure that the process is a deliberative one, and not merely a negation of an election.
Indeed, even if the President is impeached, his Vice President will assume the Office of President. The President and Vice President run together on the same ticket. Presumably, with both the President and Vice President coming from the same political party. the Vice President will agree with the major policy objectives of the President. An impeachment, therefore, does not overturn an election. It simply is one step in removing a person who has shown an unfitness to hold the Office, leaving the President's political party in charge of Executive Branch.
Sadly, Trump's presidency has never been about what is best for the American people. It has always been about Trump's self-aggrandizement. He has sought outright flattery from his Cabinet members. He attempts to enforce personal loyalty, and not loyalty to the Constitution and the rule of law. He has publicly stated that he sees nothing wrong with accepting help with finding disparaging information on a political opponent from a foreign source. He has viewed an investigation about national security, namely the investigation of Russian interference in the 2016 election, as an investigation of himself instead of as the counter-intelligence investigation it was. When he sees an investigation as potential detrimental to his personal interests, he engages in witness tampering and otherwise attempts to obstruct that investigation. His current refusal is simply a continuation of that behavior. His continued willingness to thwart the law and investigations into his conduct should be considered as a violation of the trust he holds from the American people, and featured prominently in the House's deliberations on whether to impeach him.
By: William J. Kovatch, Jr.
Another argument that Trump uses to support his decision to thwart the impeachment inquiry is that the Democrats in the House are attempting to overturn the 2016 presidential election. He likens impeachment to a coup. But again, impeachment and removal from office are powers granted the House and Senate in order to protect against the abuse of office by the President. It is an entirely appropriate procedure to invoke when a president uses his authority to conduct foreign policy in manner that benefits himself privately. The Constitution protects against the abuse of the impeachment and removal power by dividing authority between the House and the Senate. Thus, impeachment itself does not remove a president from office. Rather, he must be convicted after a trial in the Senate. Moreover, in order to convict, the Constitution requires a super-majority of two-thirds before a president can be removed from office. Safeguards therefore exist to ensure that the process is a deliberative one, and not merely a negation of an election.
Indeed, even if the President is impeached, his Vice President will assume the Office of President. The President and Vice President run together on the same ticket. Presumably, with both the President and Vice President coming from the same political party. the Vice President will agree with the major policy objectives of the President. An impeachment, therefore, does not overturn an election. It simply is one step in removing a person who has shown an unfitness to hold the Office, leaving the President's political party in charge of Executive Branch.
Sadly, Trump's presidency has never been about what is best for the American people. It has always been about Trump's self-aggrandizement. He has sought outright flattery from his Cabinet members. He attempts to enforce personal loyalty, and not loyalty to the Constitution and the rule of law. He has publicly stated that he sees nothing wrong with accepting help with finding disparaging information on a political opponent from a foreign source. He has viewed an investigation about national security, namely the investigation of Russian interference in the 2016 election, as an investigation of himself instead of as the counter-intelligence investigation it was. When he sees an investigation as potential detrimental to his personal interests, he engages in witness tampering and otherwise attempts to obstruct that investigation. His current refusal is simply a continuation of that behavior. His continued willingness to thwart the law and investigations into his conduct should be considered as a violation of the trust he holds from the American people, and featured prominently in the House's deliberations on whether to impeach him.
By: William J. Kovatch, Jr.
And Cippalone should know this!
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