President Theodore Roosevelt, in his 1903 annual address to the nation, declared that “No man is above the law and no man is below it,” adding, “nor do we ask any man’s permission when we require him to obey it.” Just last month, House Speaker Nancy Pelosi (D-Calif.) reminded us that “no one is above the law” as she announced House Democrats’ initiation of an impeachment inquiry of President Trump.
By contrast, the bombshell letter that White House counsel Pat Cipollone sent to Pelosi and three House committee chairs this week dismissed House impeachment proceedings as “constitutionally illegitimate,” with the overall aim of asserting that the president of the United States has the power to shut down an impeachment inquiry and is beyond the reach of the Constitution.
In it, Cipollone lays out Trump’s grievances and positions: The administration won’t go along with what he describes as a “partisan” inquiry; his letter decries “unfounded” allegations and the unfairness of the process; he says Democrats “seek to overturn the results of the 2016 election”; and he posits that the July 25 phone call between Trump and Ukraine’s president, Volodymyr Zelensky — at the heart of the inquiry — “was completely appropriate.” Cipollone condemns the House for operating “contrary to the Constitution of the United States — and all past bipartisan precedent.” It’s a yeoman’s effort at wordsmithing, but as an articulation of constitutional law, his letter is flat wrong.
Cipollone calls the House impeachment inquiry “unconstitutional,” but that can only be true if the Constitution itself is unconstitutional, and of course it is not. Article I, Section 2 grants “the sole Power of Impeachment” to the House of Representatives and Article I, Section 5 sets out that “Each House may determine the Rules of its Proceedings.” These aren’t suggestions, these are the supreme law of the land. And that law comports with the intent of the framers. As Alexander Hamilton wrote in The Federalist No. 69, “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterward be liable to prosecution and punishment in the ordinary course of law,” in direct contrast to “the king of Great Britain,” for whom “there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”
Once freed from the executive tyranny they had rebelled against, the founders were determined not to install another king but to create a chief executive who would bring energy to the administration of laws but remain accountable, as the Constitution commands, to Congress for any serious misconduct in office.
The founders regarded impeachment as indispensable for addressing presidential misconduct: “Shall any man be above Justice?” asked George Mason during one debate at the Constitutional Convention, and “Above all shall that man be above it, who can commit the most extensive injustice?” Further, he queried, “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment?”
James Madison expressed concerned that a president might “pervert his administration into a scheme of peculation or oppression” or “betray his trust to foreign leaders.” Edmund Randolph, then Virginia’s governor, worried that “The executive will have great opportunitys of abusing his power; particularly in time of war when military force, and in some respects the public money will be in his hands.”
William Davie, a North Carolina delegate, warned that “If he be not impeachable whilst in office, he will spare no effort or means whatever to get himself re-elected.” These aren’t the words of people intending to create an unaccountable chief executive, and their observations all mirror the questions currently facing Congress.
With its sole impeachment power and authority to determine its own rules, the House, not the president, decides which procedures to follow in opening and conducting impeachment inquiries. While attacking the process as unfair makes political sense for the president, there is no legal basis for this argument. The Constitution doesn’t give Trump, or any president, say over whether and how the House should impeach. Nowhere does the Constitution require a process that would further vest the House’s Republican minority with the subpoena power that Cipollone’s letter demands, nor bind the Democratic majority by precedent.
And it is astounding that the letter does not acknowledge two unanimous Supreme Court decisions that are on point: In the first, U.S. v. Nixon, the Supreme Court in 1974 ordered President Richard Nixon to comply with a judicial subpoena to turn over taped conversations to the court, affirming the principle that no one, even the president, is above the law. When Justice Department lawyers argued in federal district court this week that the case may have been wrongly decided, the judge gasped, “Wow, okay,” and described their argument as “extreme.” She understood the implications of the government’s position — that the president should be entitled to keep confidential any communications produced for the White House, even if such evidence pertains to possibly criminal activity or abuse of power.
The letter also looks past Nixon v. United States, a 1993 decision ruling that judicial challenges to Senate procedures in impeachment trials, as were brought in the case by impeached federal judge Walter Nixon, are for the Senate alone to decide. It follows from this decision that the House and Senate are solely responsible for structuring their impeachment proceedings as they see fit. The president has no say, and the White House counsel’s responsibility is to the settled law, not to act as if these decisions do not exist.
In its defense against potential obstruction of justice allegations laid out in special counsel Robert Mueller’s report, the administration relied on the official opinion of the Department of Justice Office of Legal Counsel, which binds the executive branch and says a sitting president may not be criminally indicted or prosecuted while in office because doing so “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions” — even if the Constitution provides no such express grant of immunity.
The president contends that he can’t be indicted or even investigated by prosecutors or Congress. If he also has the power to keep records of confidential White House conversations from courts or Congress, and if he can unilaterally decide not to submit to an impeachment inquiry, or persists in trying to dictate the terms of an inquiry, his legal defense is, effectively, that the law can’t touch him, and he should be treated in the manner of an English king.
Altogether, the White House counsel’s arguments leave only one option for holding Trump accountable — the next presidential election. To game that sole remaining possibility, Trump appears to be enlisting foreign leaders to intervene in his next election and influence the only avenue by which the body politic can hold him accountable. A neat trick. What’s astonishing is that administration lawyers, bound by ethical rules requiring them to be candid with Congress and the courts, have the gall to assert their various claims as law.
Trump once declared that the Constitution gives him “the right to do whatever I want as president.” Obviously, he’s wrong. As Trump ally Sen. Lindsey Graham (R-S.C.), now chair of the Senate Judiciary Committee, said when he was a member of the House, on the verge of impeaching President Bill Clinton, “The day Richard Nixon failed to answer that subpoena is the day he was subject to impeachment because he took the power from Congress over the impeachment process away from Congress, and he became the judge and jury.”
Trump has done that and more, directing underlings not to comply with subpoenas and not to appear at lawful hearings. Such misconduct, coupled with the outlandish claims in the White House counsel’s letter, is aimed at curtailing every avenue for holding him accountable. He seeks the power of a king. Our Constitution and the clear objectives of our founders say otherwise.