Both sides have opened by staking out extreme constitutional positions. White House counsel Pat Cipollone declared last week that the president refused to cooperate with the inquiry or even recognize its legality. Cipollone accused the House of acting “contrary to the Constitution of the United States and all past bipartisan precedent” and of designing an inquiry that “violates fundamental fairness and constitutionally mandated due process.” Claiming that allegations against Trump were “baseless,” Cipollone informed Pelosi that neither the president nor his administration “would participate in your partisan and unconstitutional inquiry.”
But Trump has also signaled an openness to compromise. Even though he has attacked the House for running a “kangaroo court,” Trump said Wednesday that he might cooperate if the House voted to approve the impeachment inquiry and provided some procedures: “We would if they give us our rights. It depends,” he told reporters.
Trump and Cipollone have half a point. The House has acted at odds with the precedents set by the investigations of presidents Richard M. Nixon and Bill Clinton. Rather than hold a House vote to launch impeachment, Pelosi simply gave her public blessing to ongoing committees probes into Trump’s Ukraine machinations. Unlike Watergate, the committee chairs don’t have bipartisan staff, nor have they granted Trump (or the Republican minority) the right to have counsel present, cross-examine witnesses, call their own witnesses, subpoena evidence or present competing arguments and facts. Democrats have threatened to ignore executive privileges raised by administration witnesses: A failure to appear before Congress, three committee chairmen informed the State Department, “shall constitute evidence of obstruction.”
Despite these hardball tactics, Pelosi has the Constitution on her side. Article I gives the House “sole Power of Impeachment”
and the right to “determine the Rules of its Proceedings.”
It does not place any limits on the power. Because of this sparse text, the House may run its impeachment inquiry however it wishes.
Supreme Court precedent affirms the House’s broad discretion. In 1993, the justices considered the Senate’s “sole Power to try all Impeachments” in a case in which a federal judge argued his removal from office violated the Constitution because he did not have a real trial with due-process rights. Writing for a unanimous court, Chief Justice William H. Rehnquist held that the word “sole” ousted the judiciary any review of the trial. The Senate was to operate “independently and without assistance or interference.” The House’s “sole” power to impeach should convey the same constitutional meaning.
Cipollone, however, has institutional politics on his side. If the House seriously seeks to remove the president, it should grant Trump more rights. Holding a vote of the House to authorize the investigation has only symbolic value. The real benefits must come in the day-to-day conduct of the inquiry.
Democrats should invite the White House and Republicans to witness interviews and for evidence production. Provide all witnesses with the right to counsel. Recognize valid privileges rooted in the Constitution. Give Trump and House Republicans the opportunity to be heard. After all, defendant’s right to confront his or her accusers traces to the very beginnings of Western civilization.
Pelosi could argue that Trump’s demands go beyond anything required by impeachment. The House plays the role of a prosecutor, who does not bring defendants along to meet witnesses and see evidence. But it is that division of authority between the House and Senate that creates an extra responsibility. Under the existing rules, the Senate holds only a pale imitation of a trial. Individual senators cannot speak, question witnesses or test evidence. They never debate the meaning of “high crimes and misdemeanors.” House managers present their case in speeches, the president’s lawyers make closing statements, and the senators vote.
Because of the Senate’s obsolete rules, the House impeachment process provides the only opportunity for the American people to weigh the factual evidence and the legal arguments against Trump. That magnifies the importance of providing Trump with due-process rights, not because the Constitution requires it, but because it will give the public greater faith in a decision to impeach.
Involving the White House and the Republican opposition will give us the confidence that impeachment has survived the same trial by fire that we demand for any criminal conviction. Even if the Senate were to acquit, the House’s bulletproofed judgment that Trump committed a high crime or misdemeanor would surely affect his reelection, where the framers expected the ultimate decision to remove a president to be made.