The Grounds for Trump's Impeachment Are Piling Up
The Grounds for Trump's Impeachment Are Piling Up
Manuel Balce Ceneta / AP
This piece originally appeared on Truthout.
We're headed for a separation of powers showdown between Congress and the
president that will ultimately end up in the Supreme Court.
The Constitution gives Congress the "sole Power of Impeachment." Yet
President Donald Trump has ordered all of his current and former senior
advisers to defy congressional subpoenas to testify in the impeachment
inquiry. Trump is claiming the subpoenaed witnesses have "absolute immunity"
against civil or criminal liability for refusal to provide testimony.
However, "absolute immunity" is a creation of the Department of Justice's
Office of Legal Counsel. No court, statute or constitution has ever
recognized it.
Some subpoenaed witnesses have obeyed Trump's command and refused to
testify. But others have defied him and testified before the committees of
the House of Representatives gathering evidence during the impeachment
process.
The committees are investigating a July 25, 2019, phone call between Trump
and Ukrainian President Volodymyr Zelensky. In that call, Trump made $400
million in military aid, Javelin missiles and a meeting between the two
presidents all contingent on Zelensky investigating the 2016 hacking of the
Democratic National Committee and digging up dirt on Joe Biden and his son,
Hunter.
This quid pro quo, which several witnesses have already documented, could
provide the basis for an article of impeachment for abuse of power by Trump.
The cover-up of the call, which was attempted by moving the records of it to
a secret server, could be the foundation for a second article of impeachment
for obstruction of justice. And the presidential orders to witnesses to
disobey subpoenas to testify in the impeachment inquiry could constitute a
third article of impeachment for obstruction of the impeachment inquiry.
The Constitutionality of Trump's Refusal Order Is Being Tested in the Courts
On October 25, Charles Kupperman, deputy to former national security adviser
John Bolton, was subpoenaed to testify before the House Permanent Select
Committee on Intelligence (HPSCI). But the same day, Kupperman filed a
lawsuit against the House of Representatives; Trump; Speaker of the House
Nancy Pelosi; Adam Schiff, Chairman of the HPSCI; Eliot Engel, Chairman of
the House Committee on Foreign Affairs; and Carolyn Maloney, Acting Chair of
the House Committee on Oversight and Reform.
In his complaint, Kupperman asked the U.S. District Court for the D.C.
Circuit to resolve the conflict between the legislative and executive
branches and decide whether he must testify.
On October 26, Schiff, Engel and Maloney sent a letter to Kupperman's
lawyers, stating that the subpoena was still in force and the committees
would consider Kupperman's "defiance of a congressional subpoena as
additional evidence of the President's obstruction of the House's
impeachment inquiry." Such defiance, they wrote, "may also cause the
Committees to draw an adverse inference against the President, including"
that Kupperman's "testimony would have corroborated other evidence . . .
showing that the President abused the power of his office by attempting to
press another nation to assist his own personal political interests, and not
the national interest."
Moreover, the three committee chairs noted,
"
If such an abuse of authority by the President to muzzle current and former
officials from disclosing to Congress evidence of his own misconduct were to
stand, it would inflict obvious and grave damage to the House's capacity to
carry out its core Article I functions under the Constitution, including its
impeachment inquiry into the President's actions. This would fundamentally
alter the separation of powers that forms the bedrock of American democracy.
On November 6, concerned about the delay Kupperman's lawsuit would cause,
the House of Representatives withdrew the subpoena. The House suggested that
Kupperman abide by the decision in a pending lawsuit against former White
House counsel Don McGahn. The McGahn litigation will, in all likelihood,
resolve Kupperman's dilemma about whether he is legally bound to testify.
The same legal issues Kupperman raised are at issue in a suit filed by the
House Judiciary Committee to enforce its April 22 subpoena of McGahn to
testify before Congress about efforts by Trump to obstruct Special Counsel
Robert Mueller's Russia investigation. In its complaint, the Judiciary
Committee said McGahn was "the most important witness, other than the
president, to the key events" that could form the basis for obstruction of
justice by Trump. McGahn told Mueller that Trump ordered him to fire
Mueller. When McGahn threatened to resign, Trump backed down. After Trump's
firing order became public, Trump tried to get McGahn to falsify evidence
and deny it had happened.
Citing the Office of Legal Counsel's position that a sitting president
cannot be indicted, Mueller did not conclude whether Trump committed
obstruction of justice, although he set forth 10 possible grounds for
obstruction. TheMueller report said that if the Special Counsel's office
"had confidence after a thorough investigation of the facts that the
President clearly did not commit obstruction of justice, [it] would so
state." Mueller left it to Congress to address Trump's obstruction of
justice through the impeachment process, stating that the "Constitution
requires a process other than the criminal justice system to formally accuse
a President of wrongdoing."
During the October 31 oral argument in the McGahn case, U.S. District Judge
Ketanji Brown Jackson appeared highly skeptical of the White House's claim
that current and former top presidential advisers have absolute immunity
from congressional subpoenas. Jackson said she would issue a ruling as early
as possible.
"Absolute Immunity" Is Not Supported by the Constitution, Case Law or
Statute
Trump's assertion of "absolute immunity" is not supported by the U.S.
Constitution or any judicial opinion or federal statute. It reflects only
the opinion of the Department of Justice's Office of Legal Counsel (OLC),
which is itself a part of the executive branch. Since the 1970s, the OLC has
taken the position that "the President and his immediate advisers are
absolutely immune from testimonial compulsion by a Congressional committee."
"Absolute immunity," as defined by the OLC, is broader than executive
privilege. Absolute immunity would relieve a witness from testifying at all.
Executive privilege, on the other hand, prevents witnesses from answering
specific questions relating to confidential communications. Trump has not
invoked executive privilege regarding McGahn's testimony.
The only court to address absolute immunity rejected it. The issue arose in
the 2008 case of Committee on the Judiciary v. Miers, which was brought by
the House Judiciary Committee against President George W. Bush's former
White House counsel Harriet Miers for defying a subpoena to testify about
the termination of nine U.S. attorneys. The federal district court decided
in favor of the House Judiciary Committee, stating, "Clear precedent and
persuasive policy reasons confirm that the Executive cannot be the judge of
its own privilege and hence Ms. Miers is not entitled to absolute immunity
from compelled congressional process." (The court in that case left open the
possibility that it might reach a different result if national security or
foreign affairs were at issue.) Nevertheless, the Miers case has no
precedential value since it was settled before an appellate court could rule
on the issue.
Damaging Testimony Despite Presidential Ban
Those who have already testified, notwithstanding Trump's order to defy
subpoenas, have given damning testimony against him. Here are summaries of
some testimonies already provided by key witnesses:
-Lt. Col. Alexander Vindman, top Ukraine expert on the National Security
Council, listened in on the July 25 call. He then twice complained to John
Eisenberg, deputy White House counsel for national security affairs,
expressing his alarm at Trump's attempt to get Zelensky to sully his
political opponents.
-William Taylor, acting ambassador to Ukraine, testified it was his "clear
understanding" that U.S. aid would be withheld until Ukraine began to
investigate Joe Biden.
-Gordon Sondland, U.S. ambassador to the European Union, initially said he
"never" thought there were preconditions on the assistance to Ukraine, but
later contradicted his former testimony.
-Kurt Volker, former State Department envoy to Ukraine, testified that he
wasn't aware of a quid pro quo but said that Trump's personal lawyer, Rudy
Giuliani, pressured Ukrainian officials to state publicly that they would
investigate Trump's political rivals.
-John Sullivan, deputy secretary of state and Trump's nominee for U.S.
ambassador to Russia, testified that Trump's requests to Zelensky were
improper.
-Timothy Morrison, a senior National Security Council aide who resigned on
the eve of his scheduled testimony, testified that he was on a call between
Trump and Sondland, during which Trump denied seeking a quid pro quo but
proceeded to "insist" that Zelensky publicly announce investigations into
the Bidens and other Democrats.
-Fiona Hill, Trump's former top adviser on Russia, testified that Sondland,
Giuliani and acting White House chief of staff Mick Mulvaney were leading a
dangerous shadow foreign policy. She said there was "wrongdoing" in U.S.
foreign policy.
Several witnesses have obeyed Trump's command and refused to testify. They
include John Eisenberg, who is a material witness to the cover-up
surrounding the July 25 call. After Vindman expressed his concern about the
call, Eisenberg ordered the records of the call transferred to a top-secret
computer server used only for the most sensitive government information.
Eisenberg is refusing to comply with a subpoena to testify.
Other subpoenaed witnesses who have refused to testify include Mike Ellis,
Eisenberg's deputy; Robert Blair, senior adviser to Mulvaney; Russell
Vought, acting director of the Office of Management and Budget; and Brian
McCormack, associate director of the White House budget office.
Meanwhile, on November 1, the Office of Legal Counsel issued a guidance
stating that subpoenaed executive branch witnesses need not testify in
impeachment inquiries "about matters that potentially involve information
protected by executive privilege without the assistance of agency counsel."
Witnesses who are testifying before congressional committees in the
impeachment inquiry may be accompanied by personal attorneys, but not
government ones.
Whether senior presidential advisers enjoy "absolute immunity" if they
refuse to comply with a congressional subpoena to testify at an impeachment
inquiry will invariably be decided by the Supreme Court. Judge Jackson's
decision in the McGahn case will be appealed to the Court of Appeals and
then to the Supreme Court. This may prove to be one of the pivotal
separation of powers cases of our time.
Marjorie Cohn
Contributor
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a
former president of the National Lawyers Guild. She wrote "Cowboy Republic:
Six Ways the Bush Gang Has Defied the Law," co-authored .
Marjorie Cohn