He won’t cooperate, period. And now we are officially in a constitutional crisis.
The missive sprawls over eight pages, but its message can be boiled down to just five words: You’re damn right we’re obstructing.
I need to discuss the legal issues here — there are very few in this letter. They are tucked away in footnotes. And they are terrible.
Most notably, on page 3, they write: “The Supreme Court has recognized that due process protections apply to all congressional investigations.” Looking at footnote 8, they cite in support of this statement: “See, e.g., Watkins v. United States, 354 U.S. 178,188 (1957); Quinn v. United States, 349 U.S. 155,161 (1955).
Watkins was a case during the McCarthy era, involving a private citizen, and held that the “due process” required is that the witness have some knowledge of the question under inquiry. Quinn, another McCarthy era case, does not deal with due process at all, but the right against self-incrimination.
The letter also cites Hastings v. United Stales, 802 F. Supp. 490, 504 (D.D.C. 1992), as support for the notion that due process is required in impeachment proceedings. The Hastings case says nothing of the sort. In Hastings, a judges was impeached and removed by Congress for conduct that a jury had found him innocent of. It says nothing about requiring due process.
And that’s it for legal cases cited in the letter. The rest is just bluster.
From a legal perspective, this letter is objectively absurd. This is the indictment phase of impeachment. How can the President be deprived of the right to cross-examine witnesses when the Constitution requires the Senate to have a full-blown trial once the House indicts?
Trump Administration: The reason why a sitting President can’t be indicted is because the Constitution expressly creates an alternative, political process for presidential misconduct.— Steve Vladeck (@steve_vladeck) October 8, 2019
Also Trump Administration: That alternative process is too political and entirely illegitimate.
I’ll let The Rude Pundit talk about the non-legal aspects:
The letter is less a legal document and more a review of the script of every bullshit campaign ad that Trump has put out in the last couple of weeks. They’ve still got 2016 on the brain: “You seek to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen. Many Democrats now apparently view impeachment not only as a means to undo the democratic results of the last election, but as a strategy to influence the next election, which is barely more than a year away” in order to defeat Trump.
This is the “state the obvious in a sinister way” strategy. Yeah, fucko, the purpose of an impeachment is ultimately to remove the president, which, obviously, somewhat undoes the last election (it won’t undo the shit-ton of damage Trump has already done) and, yeah, obviously, it would influence the next election. Every time someone says this shit, someone else should be there to yell, “Duh” and “No shit, shit-for-brains.”
The rest of the letter is a list of the Fox “news”-ready grievances and lies that Trump airs every fuckin’ day on Hell’s Twitter feed. The phone call with President Zelensky was “completely appropriate.” Rep. Adam Schiff “covertly assisted” the whistleblower. And, my favorite, Schiff created “a false version of the call and read it to the American people at a congressional hearing, without disclosing that he was simply making it all up,” which is true if you’re not a fucking moron and if Schiff hadn’t said that he was speaking “the essence” of what Trump said, “shorn of its rambling character.” By constantly insisting that Schiff didn’t present it as a paraphrase, Trump is counting on his idiot hordes’ idiocy (and probably revealing his own) in not understanding what Schiff said.
The letter even fucking lies about things. For instance, it reads, “The Committees have broadly threatened that if State Department officials attempt to insist upon the right for the Department to have an agency lawyer present at depositions to protect legitimate Executive Branch confidentiality interests-or apparently if they make any effort to protect those confidentiality interests at all-these officials will have their salaries withheld.”
It cites a letter from the chairs of the committees to Deputy Secretary of State John Sullivan that’s about Secretary of State and Trump’s most loyal ass lamprey Mike Pompeo preventing DoS employees from testifying. Reps. Engel, Cummings, and Schiff say that House rules say that witnesses may have personal counsel present, but not Executive Branch counsel. And that “the same rule has been in place for more than a decade…and it was in place during Secretary Pompeo’s tenure on the Benghazi Select Committee” back when Pompeo was just that fucking prick congressman from Kansas. And the Democrats go on to say that, if you insist on violating the rules and force your employees to violate them, here are the penalties, including loss of salary, which is what the law calls for. Imagine how Pompeo would have blown a fucking fuse if Hillary Clinton (see? She’s always around) had told the Benghazi committee to go fuck themselves. Republicans would have Benghazi’d the State Department themselves.
Most impotently, Trump challenges Pelosi to hold a vote on the inquiry: “the House of Representatives has never attempted to launch an impeachment inquiry against the President without a majority of the House taking political accountability for that decision by voting to authorize such a dramatic constitutional step.” And that gives the game away. “Political accountability” just means “I want some shit to make more campaign ads. I want some names I can toss around at my rallies of the damned.”
The letter of course cites no law or House rule that says a full House vote is required for an impeachment inquiry to start.
Marty Lederman on the role of lawyers: