Back to You, Nancy Trump calls the Speaker’s bluff on her impeachment tactics.
https://www.wsj.com/articles/back-to-you-nancy-11570663218
The White House letter late Tuesday telling Speaker Nancy Pelosi that President Trump won’t cooperate with her impeachment inquiry is causing heartburn among all the usual suspects. Readers should ignore the fainting spells over “a constitutional crisis” and keep in mind that this is largely a political response to a political attack by House Democrats.
“Your inquiry is constitutionally invalid and a violation of due process,” wrote White House counsel Pat Cipollone, who lists the due-process protections that the House is denying Mr. Trump as it pursues impeachment. He’s right about due process but wrong to dress this up in constitutional clothes.
No doubt Mr. Cipollone is doing this for political effect, since he knows that under the Constitution the House can organize impeachment more or less as it wants. The House is under no constitutional obligation to allow Mr. Trump’s lawyers to cross-examine witnesses, as if impeachment were a criminal proceeding. Like the President’s pardon power, the House’s impeachment power is among the least fettered in America’s founding charter.
Mr. Cipollone is trying to make a political point about the unprecedented secret and unfair way the House is proceeding on impeachment, and on that he’s entirely correct. As we’ve been writing, Mrs. Pelosi has refused to let the House vote on a resolution authorizing an official impeachment inquiry with rules that define the scope and procedures.
This contrasts with how the House worked in both the Richard Nixon and Bill Clinton impeachments. Mr. Cipollone is now using the lack of a House vote to justify the White House refusal to cooperate with witnesses and documents “under these circumstances.” Mr. Cipollone holds out the prospect of cooperating if Mrs. Pelosi holds such a vote.
Think of this as a “back to you, Nancy” memo. She now faces a political choice of her own. She could treat Mr. Trump’s lack of cooperation as one more impeachable offense, add it to whatever the House decides to do about Mr. Trump’s phone call with Ukraine’s president, and impeach Mr. Trump on those grounds. Joe Biden endorsed impeachment on this basis Wednesday. But this rush to impeach might not persuade anyone who hasn’t wanted to oust Mr. Trump since January 2017.
On the other hand, Mrs. Pelosi could let the House vote to authorize an inquiry with regular order and rules that give the minority subpoena power and have everything done in public. This was the House standard for Nixon-Clinton. The risk for Mrs. Pelosi is that she might lose some House Democrats on such a vote without gaining many Republicans—which would make the partisan nature of the exercise clear and undermine its public credibility.
She’d still face fights over access to White House documents and witnesses, though she’d be in a stronger position to prevail in the courts. These legal fights are hardly new, by the way, and hardly “norm-breaking.” A President and Congress controlled by opposing parties fight over documents all the time.
We don’t recall Democrats fretting when Mr. Clinton made executive-privilege claims that were more sweeping than Nixon’s during Watergate. The media that now profess horror at Mr. Trump raised not a whit of concern when Attorney General Eric Holder denied documents to Congress and was held in contempt. Just politics, they said then. Now, in their hatred of Mr. Trump, they dilate about constitutional norms they ignore when it suits them politically.
If Mrs. Pelosi does choose to brawl over documents, she’s likely to win in court more than she loses. The House in its impeachment power can seek evidence from the executive, and the courts are likely to agree when its requests are reasonable and related to the alleged offenses being investigated. But Mr. Trump may also sometimes prevail if the House is issuing kitchen-sink subpoenas that jeopardize his ability to conduct foreign policy or communicate freely with advisers.
No one should be surprised if the White House chooses to fight back, and hard, when Democrats are trying to remove Mr. Trump from office and brand him as “impeached” for 2020. The Pelosi Democrats are fighting ugly, and Mr. Trump is fighting ugly back.
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