Trump's Resistance to the Impeachment Inquiry Is a Genuine Constitutional Crisis

By Ian Millhiser, Vox

10 October 19

Here’s how bad things can get if Trump keeps stonewalling impeachment.

hite House Counsel Pat Cipollone sent an eight-page-long middle finger to House Democratic leaders on Tuesday, pledging resistance to the impeachment inquiry into President Trump. 

As a legal matter, Cipollone’s letter is nonsense. Several court decisions make it clear that the White House is not above the law. Executive privilege is real, and it sometimes prevents some inquiries into presidential behavior, but it is not an absolute privilege — especially in the context of a criminal investigation.

As a practical matter, however, Trump is likely to get away with it because there’s no one who can stop him. House investigators and others may be able to obtain a court order requiring the White House to comply with an investigation. But if Trump continues to refuse, Congress and the courts have limited options. 

As Alexander Hamilton once wrote of courts: the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

The constitutional mechanism, meanwhile, for dealing with a lawless president — impeachment and conviction — requires at least 20 Republican senators to vote to remove a president of their own party. 

So long as Trump believes that his fellow partisans will hang together, he has little incentive to comply with a court order.

The question of how to define a “constitutional crisis” is hotly contested among scholars. Yet one common definition, according to Georgetown law professor Victoria Nourse, is “a fight among branches of government in which neither side backs down, and there is no clear resolution within the constitutional system.”

There is no resolution to the present crisis within our constitutional system. The White House announced its clear intention to violate the law. But the only sure mechanism to enforce that law, impeachment, is a paper tiger so long as Republican senators stand with Trump.

The law does not permit Trump’s extraordinary resistance to investigations

Cipollone’s letter reads less like a legal document than it does like a Sean Hannity monologue. But he appears to be arguing that the Trump administration is free to defy congressional subpoenas because the House impeachment inquiry has not given Trump “constitutionally mandated due process” that he believes he is entitled to.

Trump’s legal position appears to be that no one in his administration is under any obligation to cooperate with anyone investigating whether Trump violated the law: he has made such sweeping claims of immunity to investigation that a federal judge recently described his arguments as “repugnant to the nation’s governmental structure and constitutional values.”

Let’s take these two arguments in turn: the argument that Trump may demand that the House impeachment inquiry be conducted in a certain way and the argument that Trump has broad authority to resist investigations.

Cipollone claims that the House’s impeachment inquiry should afford Trump certain rights typically associated with criminal trials, including “the right to cross-examine witnesses, to call witnesses” and “to have counsel present.” But this demand misunderstands the role of the House during impeachment. 

As Hamilton explained in the Federalist Papers, the House stands in the role of “accusers” during the impeachment process while the Senate acts as “judges” over anyone impeached by the House. A House impeachment inquiry is not, in other words, analogous to a trial. It is more similar to a police investigation of someone suspected of committing a crime.

Even at a Senate trial, an impeached official may not demand the kind of due process rights that Trump seeks. A similar issue arose in Nixon v. United States (1992), a Supreme Court case involving disgraced federal Judge Walter Nixon, who claimed that his impeachment trial did not afford him due process because certain parts of that trial were delegated to a committee consisting of only a subset of the Senate.

As the Court explained, the Constitution gives the House the “sole” power to impeach and the Senate the “sole” power to try those impeachments. The Supreme Court concluded that courts have virtually no authority whatsoever to second-guess the process Congress uses during an impeachment.

The executive branch has a very limited ability to resist subpoenas emerging from an impeachment inquiry

While the courts may not micromanage the process used during impeachment, they often have an obligation to enforce subpoenas. That was the holding of United States v. Nixon (1974), an entirely different Nixon case involving then-President Richard Nixon. This was the pivotal Watergate case that required Nixon to release incriminating tapes, which eventually led to his resignation.

This Nixon case concluded that many of a president’s communications with his aides are shielded from investigators. “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process,” the Court explained. To ensure that presidents receive honest advice from their advisers — even when that advice is unpopular or impolitic — courts should show “great deference” to a president’s assertion that internal White House communications should be kept secret.

This deference, though, is not absolute. Allowing the president to “withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts,” the Supreme Court concluded, forcing President Nixon to turn over incriminating tapes that eventually led to his resignation.

A 1997 federal appeals court decision, In re: Sealed Case, offered a fuller explanation of executive privilege, defining it as coming in two different forms. The stronger form, known as the “presidential communications privilege,” applies to communications directly with the president, or communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”

This privilege is what was at issue in the 1974 Nixon case. And Sealed Case described several limitations on it: Among other things, it is “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’” Sealed Case also suggests that congressional committees may breach the presidential communications privilege when it seeks information that is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” 

Meanwhile, a weaker privilege known as the “deliberative process privilege” permits “the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” But this privilege is extraordinarily weak. Indeed, it “disappears altogether when there is any reason to believe government misconduct occurred.”

So House investigators have broad power to subpoena almost all executive branch communications so long as there is “reason to believe government misconduct occurred.” They have somewhat less power to seek communications involving Trump and his inner circle, but even these communications may be subpoenaed when they will reveal information that is “demonstrably critical” to the impeachment inquiry. And documents unrelated to Trump’s official duties — such as, say, his tax returns — are not subject to executive privilege at all.

The White House’s sweeping refusal to cooperate with the impeachment inquiry simply has no basis in law.

What happens if the Supreme Court orders Trump to comply with the law and he says “no”?

If a court does order the administration to comply with congressional subpoenas, Trump’s first line of defense is the fact that Republican appointees control the Supreme Court. There’s no guarantee than any such order will be upheld by this Supreme Court, no matter how clearly existing caselaw says that it should.

But let’s assume the best-case scenario for impeachment investigators. Suppose that the courts move swiftly, that they soundly reject Trump’s defiance of congressional oversight, and that the Supreme Court orders Trump to end that defiance. What comes next if Trump refuses to comply with that order?

I asked Josh Chafetz, a Cornell law professor and author of Congress’s Constitution: Legislative Authority and the Separation of Powers, what legal options exist shy of impeachment. His response was pretty fatalistic. “At the point at which we’re talking about ignoring court orders,” Chafetz told me, “what does ‘legal options’ even mean any more?”

The remedy, if it came at all, would have to be political. If Trump were to defy both the House and the judiciary, Chafetz predicts that the president “would outrage a decent chunk of the public” and that Trump’s approval rating would crater. That “would have the effect of turning a bunch of GOP elites against him, which, in turn, might drive his approval still lower. I think at that point it ends with his ouster.”

But Chafetz adds that he’s not especially certain of this outcome and he “could very easily see it going other ways, too.”

Trump presides over a Republican Party that is both more united and more homogenous than the party Nixon presided over. Even if President Nixon wanted to defy the 1974 Nixon decision, it’s unlikely he could have gotten away with such a decision because much of his own party would have turned against him. 

For one thing, political parties were far less “sorted” in 1974 than they are today. There were still conservative Democrats and liberal Republicans and these factions wielded considerable power within their party coalitions. After Nixon left office, for example, Republican President Gerald Ford picked the leader of his party’s liberal wing as vice president.

So lawmakers in 1974 were accustomed to working across party lines because that was often the only way to find enough ideological allies to get a bill through Congress. Today’s lawmakers are far less accustomed to forming such cross-partisan alliances.

Similarly, for reasons that Princeton political scientist Frances Lee explains, Nixon-era Republicans had a particular incentive to work with Democrats that Trump-era Republicans do not. For most of the 1970s, largely due to the fact that many Southern conservatives still identified as Democrats, the Democratic Party had an enormous advantage in the battle for control of Congress. Because Republicans expected to be in the minority, they had a strong incentive to make nice with Democrats because forming bipartisan alliances was the most reliable way for Republicans to wield power.

Lee’s thesis is that when “neither party perceives itself as a permanent majority or permanent minority,” the parties tend to polarize. Why cooperate with your partisan rivals when you can undermine them and increase your own chances of gaining the majority in the process?

Republicans have a strong incentive to stick with Trump no matter how often Trump thumbs his nose at the law. Republicans don’t see Democrats as potential allies; they see them as bitter rivals trying to take something they want.

Many of the Founding Fathers, for what it’s worth, understood the risk of such a polarized system and hoped to avoid it. “There is nothing I dread So much, as a Division of the Republick into two great Parties,” future President John Adams wrote in 1780. A two-party system “is to be dreaded as the greatest political Evil, under our Constitution.”

Yet many of the men who designed the Constitution believed that they’d built a system that was immune to partisanship. The “well constructed Union” envisioned under that Constitution, future President James Madison wrote in the Federalist Papers, would have a “tendency to break and control the violence of faction.”

It didn’t. As anyone familiar with the musical Hamilton can tell you, the nation’s leaders split into two political parties almost immediately after the Constitution was ratified.

The framers, in other words, built our government on the assumption that lawmakers could rally together during times of crisis, rather than dividing into teams and digging in for partisan advantage. Polarized political parties simply are not compatible with a system that requires two-thirds of the Senate to remove a president — at least, if you don’t want a system where the president is immune from impeachment.

That’s likely to leave the question of whether Trump will face consequences for lawless behavior to the voters — which is ultimately where it rests in any democracy. A well-designed constitution can mitigate the risk that a corrupt executive will hold onto power but it can’t prevent the voters from repeatedly electing such a leader.

As Chafetz warns, “no constitution on its own can prevent power holders from blowing through it if there is not sufficient political will to stop them.”

ALSO SEE: Tom Brokaw's Accuser Tears Apart That Insane Matt Lauer Letter

Brooke Nevils, Matt Lauer Rape Accuser, Fires Back at Him

By Brian Stelter, CNN

10 October 19

 

att Lauer's open letter defending his reputation and categorically denying the rape accusation that Brooke Nevils leveled against him has prompted a new response from Nevils.

She says his 1,400-word letter striking out at her was "a case study in victim blaming."

"As his open letter clearly reveals, there may be more than one Matt Lauer. There's the Matt Lauer that millions of Americans watched on TV every morning for two decades, and there is the Matt Lauer who this morning attempted to bully a former colleague into silence," Nevils said in a statement initially released to NBC News.

CNN Business has also obtained her statement. In it, she said Lauer's letter "concluded by threatening any other woman who might dare to speak out against him."

Nevils was apparently citing this paragraph from Lauer's letter: "For two years, the women with whom I had extramarital relationships have abandoned shared responsibility, and instead, shielded themselves from blame behind false allegations. They have avoided having to look a boyfriend, husband, or a child in the eye and say, 'I cheated.' They have done enormous damage in the process. And I will no longer provide them the shelter of my silence."

"This," Nevils wrote in her response, "is the Matt Lauer, then the most powerful asset at NBC News, who I feared when I continued to engage with him, as many victims of acquaintance rape do, particularly in the workplace. This is the Matt Lauer I reported in November 2017. I was not afraid of him then, and I am not afraid of him now, regardless of his threats, bullying, and the shaming and predatory tactics I knew he would (and now has) tried to use against me. The shame in this story belongs to him."

A representative for Lauer declined to comment on Nevils' statement.

Nevils made the rape accusation in an interview with Ronan Farrow for Farrow's new book "Catch & Kill." She says Lauer raped her during a work trip to cover the 2014 Winter Olympics in Sochi, Russia. She told Farrow, "It was nonconsensual in that I said, multiple times, that I didn't want to have anal sex." Afterward, she said, "it hurt so bad. I remember thinking, Is this normal?"

Lauer, in his open letter, concurred that Nevils came to his room that night in Sochi, but said "each act was mutual and completely consensual," he wrote, in denying that he raped her. 

"There was absolutely nothing aggressive about that encounter. Brooke did not do or say anything to object. She certainly did not cry. She was a fully enthusiastic and willing partner," Lauer wrote.

They both acknowledge having a consensual sexual relationship back in the States. But the book describes Nevils as profoundly affected by the alleged rape, causing her to abuse alcohol and withdraw from work. "I just get so angry how this one thing derailed my life," she told Farrow.

In a tweet Wednesday evening, Nevils said, "I want to thank the many survivors who shared their stories with me today and offered their support. It takes courage, and I am truly grateful."

Earlier Wednesday, "Today" show hosts Savannah Guthrie and Hoda Kotb expressed support for Nevils.

The letter landed a couple of hours later, and it floored his former NBC colleagues.

"Never seen anything like it," one NBC staffer said.

Lauer says in his letter that his silence over the past two years has been a mistake and that he won't stay silent anymore amid accusations about his behavior.

Lauer's former co-host Ann Curry, who was forced off the show in 2012 and partly blamed Lauer for losing her job, tweeted her support for Nevils.

"I believe she is telling the truth. And that breaks my heart," she wrote.

Curry is cited in "Catch & Kill" as one of the people who tried to alert her superiors about possible sexual misconduct by Lauer. NBC, though, insists that management was not aware of any official complaint against the "Today" show star until Nevils went to human resources in November 2017. Lauer was fired the next day.

Megyn Kelly, who hosted the third hour of the "Today" show at the time of Lauer's firing, also commented on the matter Wednesday. She said "the attacks being heaped on Brooke Nevils" by people "who have no clue how unchecked power can infect a workplace are deeply misguided."

"No sane person can think Lauer's behavior here - that to which he *admits* - was anything less than abhorrent," she tweeted. Then she asked a question: "How was he able to get away w/it so long?"