Thursday, October 10, 2019

Regarding stonewalling Congress, Trump and his lawyers are just making sh!t up.

OK, so that’s not really news. From the last fact-checking count, we know that Trump does that - make sh!t up - most hours of most days (12,019 lies in 928 days as of this last August). But his lawyers are resorting to made-up legal arguments to defend him.

For example, consider the recent letter sent from Trump’s lawyer to the Speaker and chairs of three House committees. Via the Washington Post, in part it reads:

"As you know, you have designed and implemented your [impeachment] inquiry in a manner that violates fundamental fairness and constitutionally mandated due process. For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans.”
— White House counsel Pat Cipollone, in a letter to House Democratic leaders, Oct. 8, 2019

On Twitter, Renato Mariotti writes that “It is signed by an attorney but it is no sense a legal document. It’s a political document and the arguments in it are not legal reasons that would excuse failure to comply with the inquiry.” Jamal Greene responded: I believe the technical legal term is “argle bargle.” h/t Justice Scalia

Salvador Rizzo at the Washington Post Fact Checker explains why the Trump defenders’ misleading claims about the House impeachment inquiry are legal argle bargle.

President Trump’s lawyers and allies say House Democrats are running roughshod over his right to defend himself from impeachment.

As talking points go, this one is constitutionally illiterate.

Defendants in court have the right to legal counsel and to call witnesses. They have the right to examine the evidence against them and confront their accusers.

Impeachment in Congress is a different animal. The common analogy is that the House acts as a prosecutor filing charges, and then the Senate holds a trial.

That’s the process laid out in the Constitution, and the process House Speaker Nancy Pelosi (D-Calif.) and Democrats have followed thus far. If the House voted to impeach Trump, he would have the opportunity to mount a defense in a Senate trial, as President Bill Clinton did in 1999 after his impeachment.

The short of it is that Cipollone’s claims fail the Pinocchio Test.

It is grossly misleading to say Trump is unable to call or cross-examine witnesses, or have counsel present, in the House impeachment inquiry. The Constitution says the Senate holds impeachment trials. The House, on the other hand, acts as the prosecutor. The founders thought about it, and that’s how they split their roles.

Especially bonkers is Giuliani’s comparison to the Salem witch trials and McCarthyism. But it should not go unnoticed that the White House counsel’s letter, though more sober in tone, makes the unfounded claim that House Democrats are violating Trump’s “constitutionally mandated due process” rights. The Supreme Court ruled in 1993 that impeachment proceedings are different from those in the criminal justice system and that judges could not referee impeachment questions.

These claims are worth Four Pinocchios.

Philip Rotner writing at The Bulwark provides additional evidence on why Trump and Cipollone’s Made-Up Defense of Stonewalling Is a Fraud.

Donald Trump’s sweeping attempt to prevent witnesses from testifying before the House committees conducting impeachment inquiries is an act of lawlessness. Full stop.

In theory, there’s nothing wrong about a president pushing back against congressional encroachments into legitimately perceived executive authority.

But there’s a difference between protecting executive turf and stonewalling.

And Trump has crossed that line, by a mile.

… Cipollone is entitled to his political opinions. But this isn’t about political opinions. It’s about the law. His legal argument, such as it is, has two prongs:

(1) The inquiry is “constitutionally invalid” because the full House hasn’t voted to authorize it; and
(2) The inquiry violates Trump’s due process rights to cross-examine witnesses, call witnesses, and present evidence.

This “constitutional-validity” argument is simply made up.

There is nothing whatsoever in the U.S. Constitution requiring the full House to vote on an impeachment inquiry (as opposed to passing articles of impeachment), and Cipollone doesn’t cite a single provision of the Constitution—or even a single statute, or court decision, or even a dodgy law-review article in support of his proposition.

The due process argument is just as bad.

Cipollone understandably cites no authority of any kind in support of an argument that the target of an impeachment investigation has due process rights to call and cross-examine witnesses or present evidence during the investigation phase of the inquiry (as opposed, of course, to the trial phase, should the inquiry ever reach that point).

The failure to cite any authority requiring such rights is not a matter of negligence on Cipollone’s part. He doesn’t cite any such authority because there is none.

The very idea that targets have a right to fully participate in investigations of their own misconduct is laughable. Such rights are unheard of — whether the investigation is conducted by Congress, regulatory agencies, or law enforcement. Indeed, in many cases, the targets of law enforcement investigations don’t know that an investigation is being conducted, much less have an opportunity to participate in it.

It is difficult to believe that Cipollone’s legal arguments are being made in good faith. They are not debatable, or matters of interpretation. They are just wrong. A first-year law student would know better than to cite either of the cases Cipollone cites in support of an argument that a president has a constitutional right to participate in impeachment proceedings while they are still in the investigation/inquiry phase.

Trump’s order preventing witnesses from testifying before Congress has no legal justification. It is stonewalling and obstruction, pure and simple.

Congress should treat it as such.

Now I know that Trump keeps his own counsel, such as it is being devoid of expertise and evidence. But he might want to consider this advice: hire a first-year law student.

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