A popular saying among lawyers is that if the facts are against you, argue the law; if the law is against you, argue the facts. And “if the law and the facts are against you, pound the table and yell like hell.”
White House counsel Pat Cipollone took that last alternative in his Tuesday letter to leaders of the House of Representatives, announcing that the Trump White House will provide neither witnesses nor testimony in response to the House impeachment inquiry. If that letter were produced by a law student, the grade would be an F.
In refusing to cooperate with the House inquiry, which focuses on whistleblower allegations that the president improperly pressed the president of Ukraine to investigate his political rival, former Vice President Joe Biden, the White House largely indulged a howl of outrage without substantive legal basis. Indeed, the letter’s misstatement of impeachment law is extensive.
Not a criminal proceeding
The White House letter shouts that the House is violating the Constitution “and every past precedent” by conducting its investigation in confidential hearings attended by committee members (Democrats and Republicans), committee staff, and witnesses and their lawyers. That procedure violates nothing in the Constitution or any statute.
The Constitution prescribes no procedures for House impeachment inquiries, but states simply it “shall have the sole power of impeachment.” The House can adopt whatever procedures it wishes, as it did in February 1868. In voting to impeach President Andrew Johnson, the House conducted no investigation whatever. It moved directly to a vote on a resolution that did not specify the grounds for Johnson’s removal; those were prepared and approved a few days later.
The White House letter appeals repeatedly for the application to the House inquiry of constitutional provisions that protect the accused in a criminal trial. The House may choose to provide some of those provisions, as it has on occasion in the past, but no constitutional provision requires that it do so. An impeachment is not a criminal proceeding. The impeachment respondent may not be executed, sent to jail or even have to pay a fine. The only result is that he or she may be removed from public office.
The White House letter also complains that the impeachment process is “partisan,” a proposition that is hardly news. The Constitution’s framers established the process to be conducted in Congress rather than courts. They intended the process to be political, not judicial. Every presidential impeachment in our history has been partisan, led by the political party that was not the president’s.
President Pence wouldn't reverse 2016
The White House also lodges the baffling accusation that the House is attempting to overturn the result of the 2016 election. Every impeachment proceeding aims to remove the official who is charged, so if the House impeaches and the Senate convicts by a two-thirds vote, President Donald Trump would lose his job. But in that event, Vice President Mike Pence would succeed him, exactly as the 2016 election outcome dictates.
An equally puzzling error is the White House’s reliance on a 1992 trial court opinion in United States v. Hastings. That case concerned whether, when addressing the impeachment of a federal judge, the Senate has to conduct an evidentiary hearing on the Senate floor. It thus concerned the constitutional provision for Senate trials, a provision that does not apply to the House. Moreover, the holding in that case was vacated because of a contrary Supreme Court ruling, which means (as even a law student should know) it has no precedential value whatever and should never be cited.
If the White House persists in making public statements on impeachment like its Tuesday letter, the government may need to lay in some extra tables to absorb all the pounding.
David O. Stewart, author of "Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy," was principal defense counsel in the 1989 impeachment trial of Judge Walter L. Nixon Jr.
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This article originally appeared on USA TODAY: Trump White House lawyer can't argue facts or law on impeachment