The White House continued along its ill-considered strategy of refusing to cooperate in an impeachment inquiry. I have previously written that Speaker Nancy Pelosi has made a fundamental error in not securing a vote of the House to commence an impeachment investigation. However, the letter issued by the White House counsel further undermines the case for executive privilege arguments and could reinforce obstruction allegations in any final articles of impeachment.
The letter rightfully raises concerns over the lack of a House vote of the body and the secrecy of proceedings. 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.
The letter emphasizes a lack of due process in the proceedings. The Constitution does not guarantee such rights as confrontation. Indeed, it does not expressly require anything other than a vote of the House on impeachment and a majority threshold for any referral of the matter to the Senate for trial.
Once again, past impeachments (like the one that I handled) have allowed for witness examinations and some adversarial process. That should be the case here. There is clearly an effort by Democrats to prevent serious questioning of witnesses by Republican members. That is not a good practice and undermines the impeachment investigation.
However, none of that justifies the position of the White House. This is a constitutional function of the highest order for Congress. There is a legitimate basis for congressional investigation under both its oversight and impeachment authority. If proven, these allegations of self-dealing could be a basis for articles of impeachment. 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.
Worse yet, the letter again undermines the executive privilege arguments that will be key to any court fight. I discussed yesterday how Trump’s tweet about wanting an ambassador to testify (but blocking him because he does not trust the committee) is the death knell for a privilege claim. A president cannot withhold material evidence because he does not like the other party in control of a house of Congress. It must be based on a claim that disclosure, even to a co-equal branch, would undermine national security or diplomatic relations or essential confidential communications. This letter repeats that flawed premise for refusing to cooperate. It is a curious move since tweets by Trump could be dismissed (as the Justice Department did in the immigration litigation) as not reflective of the real position of the government. Now, the White House counsel himself has embraced those same arguments.
The letter is another avoidable self-inflicted wound by a White House that seems intent on counter-punching itself into an impeachment. There are defenses here as well as viable privilege arguments. This letter however is eviscerating those defenses with a reckless abandon.