You can’t investigate him. You can’t indict him. And you can’t impeach him. That’s what President Trump’s lawyers have been arguing in various venues, as they seek to build a 360-degree defense around him. Legal scholars warn it would put him above the law.
Trump’s lawyers, private and governmental, have argued that the controversial, divisive Republican cannot be investigated or indicted because impeachment is the proper route to address alleged misdeeds by the president.
At the same time, they’ve argued this week that the current impeachment process is partisan and invalid.
Steven Vladeck, a professor at the University of Texas Law School, pointed it out in a tweet Tuesday afternoon.
“Trump Administration: The reason why a sitting President can’t be indicted is because the Constitution expressly creates an alternative, political process for presidential misconduct,” Vladeck wrote.
“Also Trump Administration: That alternative process is too political and entirely illegitimate,” he wrote.
Trump Administration: The reason why a sitting President can't be indicted is because the Constitution expressly creates an alternative, political process for presidential misconduct.— Steve Vladeck (@steve_vladeck) October 8, 2019
Also Trump Administration: That alternative process is too political and entirely illegitimate.
“Not for the first time, they are indeed asserting that the President is above the law,” Lisa Kern Griffin, a professor at Duke University School of Law, wrote in an e-mail.
Trump’s private lawyers in federal court in New York have argued that one reason he should be immune from all criminal investigations is that those investigations were the province of a Congress with the power of impeachment, not law enforcement officials.
“The Constitution’s assignment of the impeachment power to Congress and its supermajority requirement for removal ensure that ‘the process may be initiated and maintained only by politically accountable legislative officials’ who represent a majority of the entire nation,” the lawyers wrote, citing previous legal writings.
The lawyers also said the decision to terminate the president’s electoral mandate is “more fittingly handled by the Congress than by a jury.”
Judge Victor Marrero, in a decision this week, rejected their attempt to shield Trump’s tax returns from Manhattan state prosecutors. “Neither the Constitution nor the history surrounding the founding support as broad an interpretation of presidential immunity as the one now espoused by the President,” he said.
Impeachment also received a shout-out from Attorney General William Barr when, before he assumed his current post, he penned a memo as a private citizen critical of the Trump-Russia investigation being conducted by Special Counsel Robert Mueller.
“Every four years the people as a whole make a solemn national decision as to the person whom they trust to make these prudential judgments. In the interim, the people’s representatives stand watch and have the tools to oversee, discipline, and, if they deem appropriate, remove the President from office,” he wrote.
“Thus, under the Framers’ plan, the determination whether the President is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process. The Framers’ idea of political accountability has proven remarkably successful, far more so than the disastrous experimentation with an ‘independent’ counsel statute,” he wrote.
But that was then and this is now — and the House has plunged into an impeachment inquiry, which Trump’s lawyers also oppose.
White House legal counsel Pat A. Cipollone, in a letter Tuesday to House Democratic leaders, announced a shutdown of the other avenue to investigate Trump, dismissing the impeachment investigation as “illegitimate” and saying the entire executive branch would refuse to cooperate with it.
“As you know, you have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process,” the letter said. “Your highly partisan and unconstitutional effort threatens grave and lasting damage to our democratic institutions, to our system of free elections, and to the American people.”
In his eight-page letter, Cipollone said “the President has a country to lead” and he “remains focused on fulfilling his promises to the American people.”
The letter came after the Trump administration had already been blocking congressional testimony by various officials and refusing to hand over documents, including his tax returns and financial records.
Trump has long held an expansive view of executive power and has cited Article II of the Constitution, which defines the powers of the executive branch, as a catchall that gives him wide latitude.
“Article II allows me to do whatever I want,” Trump said in a June interview with ABC News.
Legal scholars criticized Cipollone’s letter as short on legal substance and long on politics.
Ilya Somin, a professor at Antonin Scalia Law School at George Mason University, joked in a Facebook post that the Trump administration’s legal reasoning made him wonder “whether the White House counsel was sick the day they taught law at law school.”
Michael J. Gerhardt, a professor at the University of North Carolina School of Law, told The Washington Post that the White House letter amounted to “a bunch of political talking points” with a “completely backwards” interpretation of the Constitution.
The Constitution gives the House the “sole power of impeachment” and does not prescribe how the process should unfold, said Gerhardt, author of “Impeachment: What Everyone Needs to Know.”
Frank Bowman, a professor at the University of Missouri School of Law who is the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” wrote on the justsecurity.org forum that the letter was “simply put, a public relations exercise. The legal arguments it intersperses between insults to members of the House Democratic leadership and appeals to the President’s base voters are without foundation.”
“The bottom line is that the White House letter is neither more nor less than a list of invalid excuses to defy the legislative branch in its exercise of a power expressly granted by the Constitution,” Bowman wrote.
Griffin, the Duke University School of Law professor, said in an e-mail, “I would not call the White House letter ‘lawyering.’ ”
She, like other legal experts, said the letter is off base in demanding that the president have the rights of a criminal defendant at a trial. The impeachment in the House, which would lodge allegations against Trump, is not a criminal trial, the experts have noted.
“Where it goes astray is in asserting that the President has all of the rights of a criminal defendant at trial in the context of a constitutional process that is (1) reserved to the legislative branch and (2) about making allegations rather than trying a case. Should there be a full trial in the Senate — and that proceeding might be severely circumscribed by [Senate majority leader] Mitch McConnell — then the President’s lawyers would have the opportunity to call and question witnesses.”
Griffin noted Mueller felt he could not indict a president because of a Department of Justice policy.
“That leaves only impeachment to remedy both serious abuses of power and outright crimes. But now the President will not participate because impeachment does not sufficiently resemble a criminal trial? That makes no sense,” she said.
“The President’s allies are also suggesting that this should be resolved by voters. But election interference is the essence of the alleged misconduct. And what happens if a second Trump term reaches new heights of lawlessness? There will be neither congressional oversight nor electoral jeopardy to check it. Seems like a dangerous assertion,” she said.