President Trump listens during a ceremony in the Oval Office on Tuesday afternoon to award the Presidential Medal of Freedom to Ed Meese.
(Jabin Botsford/The Washington Post)
BY JAMES HOHMANN with Mariana Alfaro
THE BIG IDEA: “Wow,” Judge Beryl Howell said in her courtroom on
Tuesday.
A lawyer representing President Trump’s Justice Department had just made the audacious argument that the courts erred in 1974 by allowing Congress to review materials from the Watergate grand jury. Without that “road map,” which formed the backbone of the House impeachment hearings, the depths of Richard Nixon’s corruption might never have been known. Nixon probably would have served out his full second term. The House Judiciary Committee has been trying to secure some of the grand-jury materials that former special counsel Bob Mueller relied upon to prepare his report on Russian interference in the 2016 presidential election. Attorney General Bill Barr’s team is fighting tooth and nail to keep them secret. Their latest gambit is to claim that the landmark ruling 45 years ago by John Sirica, which was upheld on appeal, relied on an “ambiguous” interpretation of law that no longer is valid. Howell, who is now the chief judge of the same federal court, seemed taken aback. During a two-hour hearing, she described this as one of several “extreme” arguments that the DOJ has staked out in this case.
Remarkably, this was not actually the Trump administration’s most brazen claim of executive power on Tuesday. Not even close.
The day started with the State Department blocking Gordon Sondland, the U.S. ambassador to the European Union, from appearing for a scheduled deposition to discuss his role in the Ukraine scandal. The directive apparently came via a voice mail left for Robert Luskin, the ambassador’s attorney, at 12:30 a.m. Luskin said that his client flew in from Brussels and was willing to testify but that he felt obligated to follow the order to not show up. A few hours later, Trump’s personal attorney Rudy Giuliani announced that he will disregard a House subpoena for documents related to his efforts in Ukraine. “Let them hold me in contempt,” Giuliani declared. Tuesday ended with White House counsel Pat Cipollone announcing that Trump will not cooperate in any way with the House’s impeachment inquiry. In a fiery eight-page letter to Nancy Pelosi that sounded more like Trump’s tweets than serious legal analysis, Cipollone said the president has done nothing wrong, called the proceedings against him illegitimate and accused Democrats of trying to overturn the results of the 2016 election. “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 wrote. Trump has demonstrated a consistent disdain for the rule of law since taking office, from declaring a national emergency to divert money from the military construction budget for his border wall to musing that guns should be taken away from people without due process. But Tuesday’s frontal challenge to the fundamental system of checks and balances takes the cake. All the times Trump said the Constitution lets him do whatever he wants — The absolutist position articulated in Cipollone’s letter follows Trump’s increasingly provocative assertions of his own power.
“Article II allows me to do whatever I want,” Trump said this summer. The president was making the point during an interview with ABC News that he could have fired Mueller and ended his probe if he wanted to do so.He’s made variations of this statement several times in the past few months, from a gaggle on the White House lawn to an 80-minute speech at a conference for pro-Trump students. “I have to the right to do whatever I want as president,” Trump told the kids. Article II enumerates several specific powers for the president but by no means gives him total power. Quite the opposite. In fact, the impeachment clause is in Section Four of Article II. Removing a president for “treason, bribery, or other high crimes and misdemeanors” is literally, by definition, a constitutional act. — Substantively, many legal experts agree, the arguments in the White House’s latest letter are specious. Impeachment is literally a constitutional remedy. It cannot be “unconstitutional,” as Cipollone claimed in his letter. Several prominent attorneys, including conservatives, rebuked the White House counsel for putting his name on such an incendiary letter. “This letter is bananas,” said Gregg Nunziata, who previously served as general counsel for Marco Rubio and, before that, the chief nominations counsel for Republicans on the Senate Judiciary Committee. “A barely-lawyered temper tantrum. A middle finger to Congress and its oversight responsibilities. No Member of Congress should accept it, no matter his or her view on the behavior of Pelosi, Schiff, or Trump. Things are bad. Things will get worse.” “I cannot fathom how any self-respecting member of the bar could affix his name to this letter. It’s pure hackery, and it disgraces the profession,” added conservative legal luminary George Conway, who worked for Ken Starr during the investigation that led to Bill Clinton’s impeachment. He is married to counselor to the president Kellyanne Conway but has emerged as an outspoken Trump critic.
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A guide to what the whistleblower alleged – and what has been confirmed. — “He is shaking the foundations of the republic,” said Kerry Kircher, the House counsel for the Republican majority between 2011 and 2016. “He is poking his fingers into all of the places where we have norms and traditions and things that both parties have respected for years, and he has blown all of those out the window,” Kircher explained earlier this week, before the Cipollone letter, to Seung Min Kim and Rachael Bade. — The president has left little doubt that he’s personally behind the decision to stonewall and to try running down the clock. He indicated on Twitter that it was his call to gag Sondland. “I would love to send [him] to testify, but unfortunately he would be testifying before a totally compromised kangaroo court,” the president tweeted on Tuesday. “Trump has regularly told White House officials that he does not want to cooperate with the House committees conducting oversight,” sources tell Karoun Demirjian, Josh Dawsey, Shane Harris and John Wagner. “He was livid last week after the release of text messages from Kurt Volker [special envoy to Ukraine] and news accounts from testimony that seemed to undercut his administration’s case,” a White House official said on background. — Trump may be our most litigious president ever, but he’s not a lawyer. For that reason, the White House’s announcement that it won’t cooperate ought to be viewed more as a political strategy than a legal one. He’d much rather duke it out with Democrats over something like document production, which can make people’s eyes glaze over, than answer for his underlying conduct at the heart of the impeachment inquiry. He knows that not cooperating will make it harder for investigators to get to the bottom of what really happened, specifically how directly involved he was. — Pelosi responded that Democrats won’t be deterred. She promised thatHouse investigators will keep looking into Trump’s alleged efforts to coerce a foreign country to dig up dirt on a domestic political rival while simultaneously holding up vital assistance that Ukraine needed to fend off the ongoing Russian invasion.“The White House should be warned that continued efforts to hide the truth of the President’s abuse of power from the American people will be regarded as further evidence of obstruction,” Pelosi said in a statement. “Mr. President, you are not above the law. You will be held accountable.” Attorney General Bill Barr speaks last week in Topeka, Kan. (Ed Zurga/Getty Images) — The bigger picture: Under Barr, the Justice Department has increasingly intervened on Trump’s behalf, including when he sues other people. The Barr Justice Department has pushed for a breathtaking expansion of presidential immunity, even as Trump’s lawyers make sometimes contradictory arguments in legal filings.“In the most recent instance, [last] Wednesday, the department took Trump’s side in a federal lawsuit against the Manhattan district attorney. In that case, Trump has sought to block a subpoena for his tax returns — using the precedent-shattering argument that a sitting president shouldn’t be investigated by any prosecutor, for any reason, anywhere,” David Fahrenthold, Ann Marimow and Robert Barnes report: “During Trump’s term, federal lawyers have defended him against three lawsuits alleging he is violating the Constitution by continuing to do business with foreign governments through his family business. … In two other cases, the Justice Department has supported Trump as he seeks to block congressional investigations of his finances — by suing the committees investigating him and suing the companies the committees subpoenaed for records. … In both cases, Trump said the subpoenas are invalid because they lack a ‘legitimate legislative purpose’ — that is, they’re not tied to pending legislation. The argument is that Congress should not investigate the president’s conduct; that’s a job for prosecutors. … “The Justice Department also advised the Treasury Department to refuse a request from the House Ways and Means Committee to inspect Trump’s tax returns. The law says the returns must be turned over when requested. But the Justice Department still said no: Its reasoning was again that there was no ‘legitimate legislative purpose’ behind the request, so it was not valid. … “In the Manhattan district attorney suit, Trump’s private attorneys have turned their arguments from those other lawsuits inside out. Before, they said Congress should not obtain Trump’s records because that job was reserved for prosecutors. In this separate case, Trump’s private attorneys have said prosecutors shouldn’t obtain them. That job, they said, was reserved for Congress. ‘The Framers eliminated this possibility, and assigned the task to … Congress’ by creating the impeachment process, Trump’s private attorneys wrote.” The White House is now arguing, with the Cipollone letter, that the impeachment process – cited in New York as a reason why prosecutors shouldn’t get Trump’s tax returns – is illegitimate. |