And White House lawyers this week sent congressional leaders an eight-page letter, vowing not to cooperate with House Democrats’ impeachment inquiry, that was laden with imprecise or misleading interpretations of congressional oversight powers and the chamber’s constitutional right to impeach, according to legal experts.
“Democrats are on a crusade to destroy our democracy. That’s what’s happening,” Trump said Thursday night at a rally in Minneapolis. “We will never let it happen. We will defeat them.”
Trump’s effort to create confusion and raise doubts about facts surrounding the whistleblower complaint and House Democrats’ effort to remove him from office has been joined by several congressional Republicans and Trump associates.
After Trump said last week that along with Ukraine, China should investigate former vice president and 2020 presidential candidate Joe Biden and his son Hunter over the younger Biden’s business dealings, several Republicans, including Sen. Marco Rubio (R-Fla.), said the president was joking.
This week, House Minority Leader Kevin McCarthy (R-Calif.) took the defense of Trump’s comment a step further. “You watch what the president said: He’s not saying, ‘China, investigate,’ ” he said during an interview Monday on “Fox and Friends.” What Trump told reporters regarding China was: “They should investigate the Bidens.”
Trump’s personal attorney Rudolph W. Giuliani, who is deeply involved in the controversy over the administration’s policies toward Ukraine, has often resorted to exaggeration when defending the president or condemning Democrats.
“All of a sudden, this Congress has run roughshod over the right to call witnesses, the right to confront the witnesses against you, the right of counsel,” he said Tuesday night on Laura Ingraham’s Fox News show. “I mean, they are threatening to imprison Attorney General [William] Barr and to impeach me. Well, that’s his government lawyer and his private lawyer.”
Earlier this year, some liberal activists floated the idea that Democrats could use the power of “inherent contempt” and have the House sergeant-at-arms arrest Barr when he was resisting congressional subpoenas related to special counsel Robert S. Mueller III’s Russia investigation, but no Democratic leaders suggested going that route back then or now as part of the impeachment inquiry. It’s unclear what Giuliani meant about being impeached since he is not a government official.
While Trump has long been accused of spreading falsehoods or distorting the truth to defend or promote himself, observers said this behavior has been amplified in recent weeks as the impeachment inquiry moves forward.
“There’s two pretty simple lenses that explain his motivation around most things, and it’s either self-aggrandizement or self-preservation,” Timothy O’Brien, a Trump biographer and critic, said of the president. “On a day-to-day basis — when he’s holding a press conference or dealing with an impeachment inquiry — he’s doing it as a performance artist who says whatever he thinks he needs to say in the moment to make whatever point he wants to make, however untethered it is from the fact pattern or reality.”
Trump’s mischaracterizations threaten to overshadow political and tactical arguments that could put Democrats on the defensive and help his case, such as the White House’s view that a formal vote to launch an impeachment inquiry is necessary for it to be considered valid. But the president has shown no signs of letting up.
One of Trump’s go-to retorts in recent days is calling for the impeachment of House Intelligence Committee Chairman Adam B. Schiff (D-Calif.), one of three House chairmen overseeing the investigations that are serving as the foundation for the impeachment inquiry.
“He should be Impeached for Fraud!” Trump said Wednesday morning in a retweet of a congressional GOP ally announcing that he supported censuring Schiff. Trump has railed against Schiff for how the chairman characterized the president’s phone call with the leader of Ukraine during a hearing, with Trump saying Schiff put words in his mouth while suggesting he was reading directly from the rough transcript of the conversation.
Schiff hasn’t been alone in facing Trump’s impeachment wrath. Over the weekend, after Sen. Mitt Romney (R-Utah) issued one of the most pointed GOP criticisms of Trump, the president responded with a scathing tweet replete with a hashtag: “#IMPEACHMITTROMNEY.”
Criticism of a president is not usually seen as a reason to remove a lawmaker from office, and it’s long been a matter of practice that members of the House and Senate cannot get impeached. After then-Sen. William Blount of North Carolina was impeached by the House in 1797, the Senate decided in 1799 that Blount was not a “civil officer” under the Constitution and thus could not face impeachment — a principle that has held up since.
“It’s crystal clear in the Constitution that the framers authorized the House and Senate to police its own members through the power to expel them,” said Sarah Binder, a senior fellow in governance studies at the Brookings Institution and a congressional expert.
Giuliani has also focused heavily on Schiff, and in a Fox News interview this week, he tried to bolster his case for suing the Intelligence Committee chairman, insisting that the “speech or debate” clause of the Constitution — which is meant to protect lawmakers from liability as they go about their congressional duties — “only protects him in that little chamber.”
The problem for Giuliani: That’s not accurate. A 2017 Congressional Research Service report notes that “despite the literal text, protected acts under the clause extend beyond ‘speeches’ or ‘debates’ undertaken by members of Congress, and have also been interpreted to include all ‘legislative acts’ undertaken by members or aides.”
Such protected acts include introducing bills, speaking during committee hearings and leading congressional investigations, according to the CRS.
The White House counsel’s letter that serves as Trump’s main argument for resisting the investigatory demands of the House also makes a number of flawed, equivocal and potentially deceptive arguments, according to legal experts.
“The main confusion of the letter is that it’s arguing that the president is entitled essentially to hold the rights and procedural protections that he would receive in a criminal proceeding in a court,” said Gregg Nunziata, who served in senior counsel roles for Sens. Rubio and John Thune (R-S.D.) as well as Senate Judiciary Committee Republicans.
Investigations led by Congress, Nunziata said, “are just a different context. They have different roles and different procedures and different rights.”
Even if it were fair to compare the House impeachment proceedings with a criminal process as White House counsel Pat Cipollone did, legal experts say the administration is wrong to insist on a litany of due process rights — such as the ability to cross-examine witnesses — for Trump at this point.
That’s because the impeachment process most closely resembles the grand jury stage, while the rights that the White House is demanding for Trump would come in a trial, which would only occur if the House votes to impeach Trump and the Senate launches a trial to decide whether to convict the president.
“It’s a political argument that I don’t find particularly persuasive,” said Jonathan Adler, a law professor at Case Western Reserve University, of the White House letter. “But I think it obscures a lot of things or creates impressions that I don’t think are warranted.”
Trump has also repeatedly misled on the details of the whistleblower’s complaint — saying the facts laid out by the person “have been so incorrect” and “very inaccurate.”
He is repeatedly making that claim, even though much of the information has been corroborated, notably by the White House’s rough transcript of the July 25 phone call between Trump and his Ukrainian counterpart, Volodymyr Zelensky, that has been at the center of the impeachment imbroglio.
Among the assertions from the whistleblower that have proved accurate: that Trump asked Zelensky to “initiate or continue an investigation” into former vice president Biden, a potential 2020 rival; that Trump told Zelensky to speak with Giuliani and Barr about the matter; and that Trump raised the debunked theory that Hillary Clinton’s email server may be in Ukraine during the conversation.
“I think both sides have some pretty low-information voters on their side that are reacting to this in a gut way,” said former congressman Thomas M. Davis III (R-Va.), who led both the House Oversight Committee and the House Republicans’ campaign arm. “My experience in politics is: The facts have never gotten in the way of a good message.”