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The White House Knows It’s Losing on Impeachment

Tuesday’s scorched-earth letter to the House uses defiance to mask its self-inflicted defeats.

Chip Somodevilla/Getty Images

President Donald Trump’s biggest problem in the impeachment battle is that the facts aren’t on his side. The White House’s own memo shows him pressuring Ukrainian President Volodymyr Zelenskiy to investigate Joe Biden on flimsy corruption allegations. If that wasn’t enough, Trump publicly urged both Ukraine and China to open investigations into the Bidens last week. Texts from U.S. diplomats at the time questioned whether there was a quid pro quo with Ukraine, perhaps involving a White House visit or the un-freezing of military aid.

There doesn’t seem to be a good explanation. Inviting foreign regimes to sabotage domestic political opponents for personal gain is an impeachable offense. Even Trump’s strongest surrogates and sympathizers have struggled to offer a defense of his actions on the merits that survives scrutiny. And for all of his ire towards the anonymous whistleblower whose complaint ignited the firestorm, the most damning evidence to date has come from the administration’s own records of what happened.

That helps explain why White House Counsel Pat Cipollone sent an eight-page letter to House Speaker Nancy Pelosi and other top Democrats on Tuesday night to declare that the executive branch would not cooperate in the impeachment proceedings. As a legal document, the letter is an embarrassment. As a political statement, it largely recounts what the president’s Twitter feed says on a daily basis. As a defense against impeachment, it amounts to little more than a white flag.

Much of the letter is a partisan broadside against House Democrats in general. “President Trump and his Administration reject your baseless, unconstitutional efforts to overturn the democratic process,” Cipollone wrote. “Your unprecedented actions have left the President with no choice. In order to fulfill his duties to the American people, the Constitution, the Executive Branch, and all future occupants of the Office of the Presidency, President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances.”

Cipollone does not repeat the president’s most incendiary attacks on the House from recent weeks: namely, that the impeachment inquiry amounts to a coup and that Democrats risk a civil war by continuing with it. But he conveys the same gist by arguing that any attempt by Democrats to impeach Trump would be illegitimate and unconstitutional. To that end, Cipollone raises a series of procedural complaints about the Democrats’ approach to impeachment. Rather than negotiate with the House about that process, he tries to dictate how it should conduct Trump’s impeachment inquiry.

“To comply with the Constitution’s demands, appropriate procedures would include—at a minimum—the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony,” the letter states. “Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry.”

This is misleading, to say the least. The House’s role in the impeachment is analogous to that of a grand jury. Pelosi and Adam Schiff are not the president’s judges; they are his prosecutors. Trump will have plenty of opportunities to defend himself—to offer evidence, to call their own witnesses, to cross-examine the House’s witnesses, and more—if he goes on trial before the Senate. Whether Cipollone’s assertion comes from deception or incompetence is unclear. “It’s as though the White House is unfamiliar with the difference between impeachment in the House and trial in the Senate,” Michigan Representative Justin Amash quipped on Twitter. “It’s also as though the White House is unfamiliar with the Constitution generally.”

Cipollone’s claims that the president is being denied due process also ring as disingenuous after events earlier in the day. Gordon Sondland, the U.S. ambassador to the European Union, was scheduled to make a voluntary appearance before the House Intelligence Committee on Tuesday morning to answer questions about his involvement. Interest in Sondland’s role in the Ukraine scandal grew last week after House investigators released text messages between him and Bill Taylor, the top U.S. diplomat in Ukraine at the time.

“Are we now saying that security assistance and WH meeting are conditioned on investigations?” Taylor asked him on September 1. “Call me,” Sondland immediately replied. On September 9, Taylor raised more concerns about the hold on military aid. “As I said on the phone, I think it’s crazy to withhold security assistance for help with a political campaign,” he wrote. Five hours later, Sondland replied. “Bill, I believe you are incorrect about President Trump’s intentions,” he wrote. “The President has been crystal clear: no quid pro quo’s of any kind.” Sondland then asked Taylor to communicate by phone instead of text messages.

Hours before Sondland was due to appear, his lawyers announced that the State Department had ordered him not to testify. “I would love to send Ambassador Sondland, a really good man and great American, to testify, but unfortunately he would be testifying before a totally compromised kangaroo court, where Republican’s [sic] rights have been taken away, and true facts are not allowed out for the public to see,” Trump wrote on Twitter. It’s pretty audacious to claim that you haven’t been able to present witnesses in your own defense after blocking witnesses with firsthand knowledge of what happened from testifying.

One of the only substantive legal points raised by Cipollone is that the House hasn’t formally voted to open an impeachment inquiry. “Your inquiry is constitutionally invalid and a violation of due process,” he wrote. “In the history of our Nation, the House of Representatives has never attempted to launch an impeachment inquiry against the President without a majority of the House taking political accountability for that decision by voting to authorize such a dramatic constitutional step.” This is true, insofar as the House hasn’t held a formal vote. But such a vote isn’t mandated by the Constitution, which gives Congress “the sole power” to impeach federal officials and simply requires that the House holds a majority vote on the impeachment itself.

Cipollone’s letter reflects a much deeper problem from the Trump administration: the breathtaking assertion of executive power that warps our constitutional structure beyond recognition. The White House is all but nullifying Congress’s oversight powers by turning numerous requests for documents and testimony into protracted court battles. Cipollone’s letter escalates that approach by refusing to participate in the impeachment process altogether, even when faced with subpoenas. Coupled with the Justice Department’s sweeping view of the president’s immunity from criminal proceedings, Trump has constructed a legal universe that shields him from almost any accountability, except from an electorate that he can manipulate with the help of foreign powers and, perhaps, from Chief Justice John Roberts.

But focusing on the broader constitutional struggle shouldn’t obscure the facts at hand. It’s in Trump’s political interests to convince the American people (as well as the Senate) that the impeachment inquiry is nothing more than a partisan clash between himself and House Democrats. If he succeeds, Republican senators will find it easier to vote against his conviction and removal from office. But that calculus becomes far more difficult if Americans and their representatives focus on the evidence that he abused his power for personal gain. The great irony is that participation in the impeachment inquiry would give the White House an opportunity to bring exculpatory facts to light. That they refuse to do so suggests no such facts are at hand.