You are not the first White House official to view an impeachment inquiry as “highly partisan.” President Richard M. Nixon’s staff called the House Judiciary Committee a “kangaroo court ” and charged that it had violated the president’s due process. On the day of President Bill Clinton’s impeachment, one of my colleagues said that “nothing about this process has been fair.”
In 1998, we felt under siege. From the moment that independent counsel Kenneth W. Starr delivered his report to Congress in a convoy of SUVs, we knew Clinton would not receive a fair hearing. A relentless barrage of leaks from Congress and severe partisan attacks against the president followed.
We argued at the time, as you do in your letter, that Congress should provide additional procedural protections to the president. Although the House Judiciary Committee afforded us some measures, we still thought they were wholly inadequate. For example, instead of conducting its own investigation, the committee relied almost exclusively on Starr’s report, which had serious flaws. The House took only three months to adopt articles of impeachment, and we had only two days to present our witnesses. The president’s personal lawyer, David Kendall, had only 30 minutes to question Starr. We felt this was deeply unfair and a derogation of the House’s constitutional duty to investigate thoroughly whether impeachment was warranted.
But we never considered the possibility of refusing entirely to participate in the impeachment inquiry or completely blocking the House’s access to documents and witnesses. We understood that, regardless of how partisan the impeachment process was, we had the moral, ethical and legal obligation to operate within the bounds of our constitutional system.
The Constitution grants the “sole Power of Impeachment” to the House of Representatives. Confronted with an exercise of that power, the White House, of course, can and should push for procedural fairness. It is not enough, however, simply to assert, as you have, that the impeachment inquiry is “invalid ” and therefore that the president has no choice but to refuse to participate.
A total refusal to respect our constitutional system is without precedent. The founders understood, as Alexander Hamilton wrote , that impeachment, by its nature, “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” Nevertheless, the White House cannot reject Congress’s authority on the mere grounds that it believes the House of Representatives seeks to “reverse” a past election and “influence” a future one.
If President Trump’s White House bears any resemblance to Nixon’s or Clinton’s, I assume you feel unfairly attacked. Nixon’s speechwriter, Pat Buchanan, accused “the big media” of distorting coverage of Nixon during his impeachment process, and we felt that Clinton was subjected to numerous unwarranted attacks. That said, we recognized that Congress’s motives for initiating an impeachment inquiry had no bearing on its constitutional authority to do so. We also understood that we had an independent and solemn responsibility to do our part to preserve our system of checks and balances by participating in the impeachment process.
You are not representing just any client. As White House counsel, you have a responsibility to serve the Office of the President, not the president himself. Your letter unfortunately conveys a different understanding.
You should object and make cogent legal arguments to resist what you perceive as congressional overreach. Indeed, we fought hard at times to ensure a degree of fairness to the proceedings, and I advise you to do the same. Be zealous in your advocacy. That’s expected and appropriate. But you do not have a right merely to will Congress’s authority away. It’s wrong to try, and it won’t work.
Moreover, such an ill-conceived and extra-constitutional strategy could cause lasting damage to the presidency and to the ability of the branches of government to function the way our founders envisioned. Of particular note, it could also inflict collateral damage on our justice system more generally, sending the message that subpoenas can be disregarded at will.
The White House counsel should convey respect for our constitutional system, not disregard for it, and defend the presidency without seeming to reject wholesale our constitutional system of checks and balances. I have confidence that our system is stronger than any one person, and you should, too.