White House counsel Pat Cipollone has sent a letter to the leadership of the House of Representatives stating that the so called president and his minions will not participate in the impeachment inquiry the House has announced.
This letter claims that the inquiry “lacks any legitimate constitutional foundation.” The executive has no say in the matter.
It is well to explain why this claim is preposterous in the extreme.
Any thinking person gave up all hope long ago that the so called president might exhibit the tiniest understanding of the constitution he swore to protect and defend when he took office. He has declared, absurdly, that Article II of the U.S. Constitution gives him the right to do whatever he wants, a claim that is ridiculous on its face and entirely ignores the whole purpose of the document as well as its design and operation.
A key feature of our Constitution that the so called president and his minions, whom one might expect to have more information about the question, ignores, both with his previous claims and their current whining at the House of Representatives, is the separation of powers, which it nowhere states explicitly, but clearly reflects in its structure. Trump alludes to what he does not understand when he mentions “Article II,” or the second article of the Constitution, which defines the executive branch, of which the president is the chief executive.
As “Article II” implies, there is an “Article I,” which defines the legislative branch, or Congress, which is, as many observers say, a “co-equal” branch of government, although one could argue that it is preeminent, since only it can pass laws, albeit with the signature of the president, who has the power to veto legislation, but Congress can override the president’s veto, with a two-thirds majority in both Houses, so Congress has the final say in passing legislation.
Without laws, there is no government, so the legislature is conceptually more important than the executive. Regardless, the idea of our Constitution is that the branches should check and balance each other. The Founders wanted Congress to have the power to check the executive if necessary. Any fool knows this. Trump apparently does not, but Cipollone must. It is one of the most elementary principles in our government.
The Founders gave teeth to this checking power, and implicitly recognized the primacy of the legislative branch, when they defined the power to impeach, which, amusingly, they define the conditions for in Article II, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
As the trial judge found in holding that the president’s accounting firm, Mazars, must comply with a subpoena for information about the so called president’s taxes, where they offered a very similar argument — that the House Committee in question had no valid basis for the subpoena — Congress has enormous power to decide subjects on which it wants to legislate, and it must have the power to investigate before legislating. There, the federal judge held that he must defer substantially to the decisions of the House of Representatives. Trump filed suit in federal court because Article III of the Constitution defines the judiciary, which in some ways has the most power of the three branches — a federal judge can prevent the implementation of any statute Congress passes, or of any executive order the president issues — but is still “the least dangerous branch” in part because it only exercises its power when aggrieved parties, according to the judiciary’s own definition, bring “cases and controversies,” as the Constitution put it, to it, and its investigative powers are essentially zero. Federal judges rely on the information litigants put before them and exercise effectively no independent investigative power of their own.
But the Mazars judge made the point that, precisely because Congress has virtually unlimited power to choose topics on which to legislate, and thus on which to investigate, federal judges have almost nothing to say by way of reasons to stop them from issuing subpoenas. He did not say so explicitly, but that rule applies with greater force when they are investigating a president, someone whom they have the clear responsibility to check when necessary.
It matters to some extent who issues a subpoena and for what purpose, but past a certain point, a subpoena is a subpoena. The word comes from the Latin and literally means “under penalty.” The Mazars case dealt with an ordinary House investigation of the sort they might pursue any day of the week on any topic.
That House Speaker Nancy Pelosi has declared an impeachment investigation introduces a new element in deciding the limits of the House’s power to issue subpoenas. The Constitution grants to the House of Representatives “the sole power of impeachment.” Remember, from above, “the President” is the first person on the list of officers who “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Remember also the separation of powers, with its purpose of allowing the branches to check and balance each other.
In law, “shall” means, you better do it. Judges notice the word “shall” in a piece of legislation or the Constitution. The Supreme Court also noticed the word, “sole.” In Nixon (not that Nixon) v. U.S., 506 U.S. 224 (1993), the petitioner, Mr. Nixon, was a federal judge who had lost his position for committing a crime, which is the only reason the Constitution allows for removing a federal judge from office. The House of Representatives impeached Nixon and the Senate convicted him after a trial. He challenged the method the Senate used to try him.
The Supreme Court, unanimously, in a decision by Republican justice William Rehnquist, officially decided that it was without power to decide the issue, that it was “nonjusticiable,” to use the term the Court itself uses. A case is “nonjusticiable,” as Rehnquist explained, where the Court can find “a textually demonstrable constitutional commitment of the issue to a coordinate political department….” Um, whoops. In plain language, what that means is that, if the Constitution clearly assigns a particular power to a branch other than the judiciary, then the judiciary has to leave the issue alone.
Rehnquist’s opinion is 12 pages long, 226–238 in the reporter. He devotes nearly eight pages, from the bottom of page 230 to the end, on page 238, to discussing why the word, “sole,” in the passage where the Constitution states that the Senate shall have “the sole power to try all impeachments,” necessarily means that the federal courts, including the Supreme Court, should have nothing to say about the procedure the Senate used to conduct an impeachment trial. He notes that the power of removal via impeachment is enormous and terrifying, as the conduct of the so called president in the face of it indicates. The Founders did not want to assign that power to so small a group as the Supreme Court. They required a two-thirds vote in the Senate as a brake on the use of that enormous power. They divided it between the two House of Congress as a further brake.
He also pointed out the insuperable practical problem that giving the power to remove through impeachment to the courts also would create the unacceptable possibility of long delays in making the momentous decision to remove an official, potentially including a president. President Nixon had the good grace to resign quickly and leave town once his likely removal by the Senate became known to him. Because President Clinton knew the Senate would not vote to remove him, he remained in office throughout the process, but neither he nor Congress got anything else done during his impeachment. It makes no sense to put the nation’s business on hold while an impeachment drags through the courts.
In sum, Rehnquist concluded that, when the Founders assigned “the sole power to try all impeachments” to the Senate, they really meant it and the Court, for multiple reasons, must respect that choice and not interfere with how the Senate chose to conduct an impeachment trial.
Different House of Congress, different official — we now face a dispute between the House of Representatives and the so called president.
But it will require an impressive feat of legal acrobatics for any justice on the current Court — Thomas is the only justice still on the Court now — to come up with a sufficient explanation for why, after the Court unanimously refused to intervene in a Senate impeachment trial, it should now intervene in a House impeachment investigation. As Rehnquist noted, the word, “sole,” appears in the Constitution only twice, once in the passage he discusses above, assigning to the Senate “the sole power to try all impeachments,” and just before that, where it assigns to the House “the sole power to impeach.”
It is possible to violate a party’s rights in the conduct of an investigation. The Fourth Amendment prohibits unreasonable searches and seizures, which is not an issue where the House has issued a subpoena. Those involve neither searches nor seizures. The so called president has considerable power at his disposal and is obviously well able to defend his rights in court. He has no right to defy subpoenas from the House of Representatives, at all, but especially not in the case of an impeachment investigation.
The position Cipollone has taken, at the behest of the so called president, is nonsense on stilts. It finds no support at all in our Constitution.
The House should take whatever legal means it has available to enforce its subpoenas. The Supreme Court may choose to go fully partisan and side with the so called president against all law and reason. The so called president may still refuse to comply, even with an order of the Supreme Court. We have yet to find the limit of the Republicans’ willingness to pursue the basest instincts of their Party at the expense of the rest of the republic.
The incompetence and embarrassment of the so called president alone were sufficient to drive historically high voter turn out in 2018. Having a supine Supreme Court and Senate on the side of the incompetent, embarrassing president would likely drive turn out even higher in 2020.
It would be better for all concerned not to get to that point, but only Republicans other than the so called president can decide if they are willing to push the nation to such extremes.