ANALYSIS | Experts agree a letter the White House sent to House Democrats stating a refusal to cooperate with their impeachment inquiry is legally flimsy and is mostly about politics.
“Put simply, you seek to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen,” White House Counsel Pat Cipollone wrote in a letter to Speaker Nancy Pelosi, House Intelligence Chairman Adam B. Schiff and two other senior Democrats.
The White House’s top lawyer told the Democrats their “unprecedented actions have left the President with no choice,” telling them he will not cooperate with the probe “under these circumstances.”
But legal experts quickly digested the letter’s constitutional claims — or, as they saw them, the lack thereof.
“Cipollone’s letter isn’t so much a legal challenge as a press release. The letter is undignified and borderline hysterical,” Walter Shaub, who resigned as director of the Office of Government Ethics over objections about perceived lapses by the Trump administration, told CQ Roll Call. “The points he raised are based on political bluster, not law. … Cipollone would rip up the Constitution and make impeachment subject to presidential consent.
“Its underlining assumption, that the executive must consent to an impeachment inquiry, mistakes Trump for a king,” Shaub, now a senior adviser at Citizens for Responsibility and Ethics in Washington said of the letter. “The executive branch claims the President can’t be prosecuted because he can be impeached, then claims he can’t be impeached because he hasn’t consented.”
Gregg Nunziata, a former counsel to GOP Sen. Marco Rubio of Florida, Senate Judiciary Committee staffer and Justice Department attorney, took to Twitter to call the letter “bananas” and a “barely-lawyered temper tantrum” that amounted to nothing but a “middle finger to Congress and its oversight responsibilities.”
Wow. This letter is bananas. A barely-lawyered temper tantrum. A middle finger to Congress and its oversight responsibilities.
No Member of Congress should accept it, no matter his or her view on the behavior of Pelosi, Schiff, or Trump.
Things are bad. Things will get worse. https://t.co/AesJ6cGHrl
— Gregg Nunziata (@greggnunziata) October 8, 2019
But the document offers clues that the Trump White House is focused on politics first.
“No citizen — including the President — should be treated this unfairly,” Cipollone wrote. The notion that he — and, by extension, his political base have been targeted and often attacked by the political system is a hallmark of Trump’s 2016 and 2020 campaign messages.
Cipollone and other White House officials involved in crafting the letter did not attempt to mask the Trump team’s desire to make it a political document. It includes a challenge to Democrats to let voters decide whether the president’s request that Ukraine’s president “do us a favor” by investigating 2020 Democratic candidate Joe Biden and son Hunter Biden should disqualify him from a second term.
“The Founders, however, did not create the extraordinary mechanism of impeachment so it could be used by a political party that feared for its prospects against the sitting President in the next election,” the letter states. “The decision as to who will be elected President in 2020 should rest with the people of the United States, exactly where the Constitution places it.”
Mark Rom, a Georgetown University government and public policy professor, said Wednesday the White House’s intent was to score political — not legal — points.
“Politically, the letter is strong. I think it works well for the people the president wants to reach, which is, as usual, his political base,” Rom said. “I think the Democrats are in a weaker position on this point: Many Democrats have wanted to get rid of Trump from the day after the election. So it does look to many Republicans across the country like, as the president puts it, they want to overthrow his entire presidency.
“Now, legally, as I read the letter, I see nothing that tries to rely on carefully crafted legal arguments that would be looked at favorably by the courts,” he added. “The intent is political. And impeachment is very much a political process.”
A senior White House official was asked several times during a Tuesday briefing call about whether any changes by Pelosi to the impeachment process might trigger the administration’s involvement. Each time, the official declined to comment about “hypotheticals.”
The next morning, the president also played a political — rather than legal — game.
He fired off tweets and retweets Wednesday aiming to discredit an intelligence community whistleblower whose complaint set off the impeachment inquiry.
That still-unknown person “should be exposed and questioned properly” over a “conflict of interest and involvement with a Democrat Candidate,” the president tweeted, appearing to mean by White House or his personal lawyers.
(Media reports this week cite multiple sources saying the whistleblower told the intelligence community’s top inspector general he has some kind of personal or professional relationship with one of the 2020 Democratic presidential candidates.)
In another, Trump went back after House Democrats, labeling them “The Do Nothing Democrats” and calling them “Con Artists” who want to “hurt the Republican Party and President.”
“Their total focus is 2020, nothing more, and nothing less,” Trump tweeted.
The Do Nothing Democrats are Con Artists, only looking to hurt the Republican Party and President. Their total focus is 2020, nothing more, and nothing less. The good news is that WE WILL WIN!!!!
— Donald J. Trump (@realDonaldTrump) October 9, 2019
The so-called Whistleblower, before knowing I was going to release the exact Transcript, stated that my call with the Ukrainian President was “crazy, frightening, and completely lacking in substance related to national security.” This is a very big Lie. Read the Transcript!
— Donald J. Trump (@realDonaldTrump) October 9, 2019
His electoral fate is still in flux. But Rom said one thing is clear.
“The letter was about the White House and the president throwing down the gauntlet,” he said. “The message is … we don’t think your process is legally fair, so we’re not going to participate in the legal part of this. So it then becomes all about the politics.”