You already know what this is about. Trump previewed it in his tweets this morning defending his decision to block Gordon Sondland from testifying. The White House has decided that it’s done cooperating with the House’s impeachment probe — and not for any traditional legal reason, really, like executive privilege, although White House counsel Pat Cipollone does include that in his list of grievances in this eight-page rant. It’s done cooperating because, it says, the probe is simply too unfair. It’s too secretive, it’s too one-sided, it hasn’t been properly authorized via a formal House vote. Trump’s not getting due process, Cipollone argues, therefore the White House is no longer required to comply with subpoenas or make anyone available to testify.
Coincidentally, they’ve arrived at this decision at the very moment that Sondland, a firsthand witness who once allegedly told Ron Johnson that there was a quid pro quo happening with Ukraine, was about to talk.
You can read the whole thing here. Most of it resembles a talk-radio monologue, not a letter from the White House counsel, which is befitting of its true nature. This is a PR document aimed to rally righties around Trump as he goes about obstructing the probe, not something for Democratic lawyers to mull over. Cipollone dispenses with the legal claims in Section I, which runs only a few pages. Here’s the bottom line:
And again a bit later:
What this is, in other words, is a constitutional crisis pitting the House’s authority to pursue impeachment of the president against a variety of claims by the White House — due process, for starters, and executive privilege secondarily. It’s highly likely that House Democrats would win that battle if it went to court, that judges would decide that the House has broad discretion in how to conduct impeachment proceedings and that the issue is generally nonjusticiable. The alternative, a win for Trump, would grant future presidents the power to short-circuit any impeachment proceeding by identifying alleged unfairness and using that as a pretext to withhold evidence. Probably a court will say that Sondland should testify and the White House should turn over requested materials and then plead its case about fairness to the two juries in impeachment — the Senate, first and foremost, and the electorate more generally. It’ll be especially hard for Cipollone to convince a court to side with the White House, I think, given that the Senate is controlled by the president’s own party. If Trump were at risk of being railroaded by a Democratic-controlled Congress, that might give a judge pause, As it is, everything in this letter can and will be cited by Republican senators as reasons to acquit Trump once the matter reaches them.
Some critics of the letter this evening are predictable…
This letter, in and of itself, is an impeachable offense.
— George Conway (@gtconway3d) October 8, 2019
…others are marginally more interesting:
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
Nunziata used to be Marco Rubio’s counsel. As for what Democrats do now, in a sense it doesn’t matter: Trump knows he’s getting impeached one way or another so he’s seizing the opportunity here to put some meat on the bone for his “witch hunt” defense once it happens. Having Cipollone do it instead of the White House comms department is smart too since it gives him some (self-serving) legal authority for the claim. It’s not just Trump who says it’s a witch hunt, it’s his own extremely well-respected attorney!
Pelosi’s going to have to make a choice and it comes down to this.
1. Impeach Trump for obstruction immediately. She’d rather not do that since it would take the focus off his Ukraine behavior and turn public opinion into a referendum on whether the impeachment process was fair or not. At a minimum, if Dems go this route, they’ll impeach him for obstruction *and* for making the Biden request to Zelensky, irrespective of whether there was a quid pro quo. The advantage of impeaching him ASAP is that it’ll save time, as Pelosi doesn’t want the process dragging on for months so that Republicans can argue that voters should settle it at the ballot box instead.
2. Start holding people in contempt and fight Trump on that point first. Some Trump cronies are practically begging her to do so:
Giuliani tells me he won't testify or give documents to impeachment hearings being led by Schiff & would welcome legal fight over contempt. Others won't cooperate either, he says. "The position I'm stating now is the position of the administration." https://t.co/koifkuDDSe
— Josh Dawsey (@jdawsey1) October 8, 2019
Does Rudy think he has a free-floating privilege not to cooperate with Democrat-run probes? He’s not a member of the administration so he can’t rightly claim executive privilege. His work for Trump in Ukraine appears to have been diplomatic, not legal, so there’s no attorney/client privilege. If Giuliani won’t cough up documents, Pelosi may have to hold him in contempt. Same goes for Sondland if he won’t testify. Dems might even consider the nuclear option of “inherent contempt,” in which they impose their own sanctions on uncooperative witnesses without court help (up to and including imprisonment). But an aggressive offensive involving contempt risks bolstering Trump’s claim that Democrats have resorted to dubious procedures to prosecute their vendetta against him. If Trump is running around telling voters that Pelosi has gone crazy with Trump-hatred, what are they going to conclude if she has Rudy Giuliani thrown in the congressional brig or whatever? Trump was right!
The other problem with contempt is that it’ll be challenged in court and that could drag out for much longer than Pelosi wants. There’s an upside to it too, of course: Nothing would validate the impeachment inquiry in the public’s eyes like having a court, especially the Supreme Court, side with Democrats on the constitutional dispute. But there’s no telling if the courts will review the matter urgently because of its national significance. And of course Pelosi’s taking a big risk counting on a conservative-leaning SCOTUS to side with her against Trump. I think it’s worth the risk to her to go this route, though, knowing that John Roberts is highly unlikely to join a 5-4 party-line vote in Trump’s favor given his worries about perceptions of the Court’s independence. And a favorable SCOTUS ruling for Dems might be the only thing that can really damage Trump’s and Cipollone’s claim that this is a procedural fiasco. Winning a court battle will give the inquiry legitimacy. But at the expense of time.