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Opinion Senate Democrats need to hold firm. America needs a history lesson.

George T. Conway III in April 2017. (Chip Somodevilla/Getty Images)

It is easy to forget why we are now witnessing a face-off between the Senate majority and minority leaders over calling witnesses at President Trump’s impeachment trial: Trump took the unprecedented move of asserting “absolute immunity” in response to all document and witness requests. On Page 140 of the House impeachment report, the Judiciary Committee majority recounts:

Following President Trump’s direction, and at his behest, the White House, the Department of State under Secretary Michael R. Pompeo, the Office of Management and Budget under Acting Director Russell T. Vought, the Department of Energy under Secretary James Richard “Rick” Perry, and the Department of Defense under Secretary Mark T. Esper refused to produce a single document or record in response to Congressional subpoenas. Moreover, adhering to President Trump’s direction, nine Administration officials defied subpoenas for testimony, namely John Michael “Mick” Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl.
In directing these agencies, offices, and officials to disobey subpoenas, President Trump prevented Congress from obtaining additional evidence highly pertinent to the House’s impeachment inquiry. He did so, moreover, through an official direction lacking any valid cause or excuse—and that strikingly reflected his previous pattern of obstructing United States government investigations into foreign interference in our elections. By engaging in this conduct, President Trump grossly abused his power and sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own wrongdoing.

Republicans now turn around to claim that the House should have exhausted all appeals to compel witnesses, and therefore cannot try to subpoena them in the Senate nor use Trump’s obstruction as a basis for an article on obstruction of Congress. This is poppycock.

The latest updates in the Trump impeachment process

As the House majority report makes clear, Congress has the sole power to conduct impeachment hearings and never before has a president denied all requests in blanket fashion. (“[The] history of House impeachment inquiries teaches a single lesson: compliance with subpoenas is the rule, defiance the exceedingly rare [and impeachable] exception. No president has ever issued a blanket ban on compliance with House subpoenas and challenged the House to find a way around his unlawful order.”)

Moreover, in federal court Trump’s lawyers repeatedly claimed that the court has no jurisdiction to entertain House demands for appearance of witnesses nor provision of documents. In any event, the House is not compelled while a threat to our democracy sits in the Oval Office to await an end to appeals on Trump’s ludicrous arguments and final judgment from the Supreme Court.

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One case that is not encompassed by the current impeachment proceedings, namely former White House counsel Donald McGahn’s refusal to appear in front of the Judiciary Committee to answer questions about the Mueller report, now sits in the federal D.C. Circuit court after the district court rejected Trump’s claims to absolute immunity. The House might get a favorable ruling there, but certainly the president will appeal, and we will, as in the Mazars USA and Deutsche Bank cases (as well as one brought by New York state prosecutors concerning Trump’s taxes), have to wait for the Supreme Court to decide to take the case, set a briefing schedule, hear oral arguments and then issue an opinion (which might include a remand to a lower court!).

Trump’s game is clear: Tell the courts they have no role, tell the Congress it has no role and then escape any accountability. This is a recipe for autocratic rule in which the president stands above the other branches without any check.

In the McGahn case, a group of Republican lawyers, ex-lawmakers and ex-officials, including George T. Conway III, former congressman Mickey Edwards, Stuart M. Gerson, former senator Gordon J. Humphrey, Trevor Potter and Paul Rosenzweig have filed an amicus brief that delivers a much-needed history lesson. They write:

The idea that a president and his current and former advisors enjoy absolute immunity from subpoena — particularly during impeachment proceedings — finds no support in early American practice. During the early republic, Congresses and presidents recognized that Congress had nearly untrammeled authority to request documents and testimony to support impeachment proceedings. Otherwise, as John Quincy Adams noted, it would make a “mockery” of the Constitution’s impeachment power for Congress to have the power to impeach but “not the power to obtain the evidence and proofs on which their impeachment was based.”

The amici brief then goes through some early cases, including the subpoenas to President Thomas Jefferson in the Aaron Burr trial and President James Monroe in the court martial of a Navy surgeon in which the president complied with subpoenas.

In the McGahn case, as with all the other subpoenaed executive branch employees, the case against Trump is even stronger. “Where, as here, the subpoena issues not to the president himself, but to one of his subordinates, the case against immunity from process becomes all the stronger,” the amici brief argues. “Indeed, one ‘time-honored means of accommodation’ between ‘the claims of governance and those of restraint’ has been ‘the availability of a subordinate.’” The brief concludes:

The Framers understood the Constitution as conferring broad powers on Congress to subpoena Executive Branch officials and documents in impeachment-related proceedings. They also firmly rejected any notion that Article II immunizes the president from subpoenas issued by the other branches. There is thus no basis in early constitutional practice for finding absolute immunity from process for former presidential advisors like Mr. McGahn. In light of these early interpretations and practices, this Court should affirm the district court’s judgment.

In other words, wherever the inquiry into Trump goes — the House, the Senate, the courts — the president’s answer is always the same: You have no jurisdiction over me. This is the conduct of an autocrat or a king, making the necessity of impeachment on obstruction equally as important as the article on abuse of power. Senate Democrats should hold firm and demand that Trump and his lackeys finally are forced to address the best and most reliable evidence.

Read more:

Jennifer Rubin: Schumer has these five advantages in impeachment

The Post’s View: Will any Republicans show respect for the Constitution?

Catherine Rampell: Mitt Romney bucks his party. Republicans should follow his leadership.

Eugene Robinson: Nixon was bad. Trump is much worse.

The latest commentary on the Trump impeachment

Looking for more Trump impeachment coverage following the president’s acquittal?

See Dana Milbank’s Impeachment Diary: Find all the entries in our columnist’s feature.

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Read the most recent take from the Editorial Board: It’s not over. Congress must continue to hold Trump accountable.

The House impeachment managers weigh in in an op-ed: Trump won’t be vindicated. The Senate won’t be, either.

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