The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
And Then the President Asked to be Impeached
White House Counsel Pat Cipollone has now released his response to the myriad House impeachment inquiries. It is quite the document, and can be read in all its glory here.
This is best understood as a political document. It might be worth unpacking its assertions about the respective constitutional powers of the House of Representatives and the White House and past constitutional practice, but those assertions seem mostly beside the point.
Cipollone, on behalf of the president, has thrown down the gauntlet. The White House will not offer documents or testimony that might put the president's or the administration's conduct in a better light. The House can either choose to impeach the president based on what it knows or can discover without the president's cooperation, or it can move on. The president has dared the House to impeach him, and he has now chosen to mount his defense against possible removal in the Senate and in the court of public opinion.
Members of Congress of both parties should understand the institutional stakes here. If this president can simply issue a blanket refusal to cooperate with any congressional oversight of executive branch activities, then Congress should expect that future presidents will try to build on that example. Perhaps the Democrats in the House are overreacting to the available information about how the Trump administration has entangled its electoral interests with American foreign policy. If so, the Senate can render its judgment on that in an impeachment trial, and the voters can render their judgment on election day in 2020.
But even if the Republicans are not convinced that there is much of a fire beneath the smoke surrounding the Ukraine matter, they should think carefully about whether they want to facilitate a future president treating Congress the same way when the White House is once again in Democratic hands. Congress has played its own role across recent administrations in escalating conflict between presidents and legislatures of opposite parties. Past presidents have also attempted to straight-arm Congress. This is a dramatic escalation in White House tactics of obstruction. The shoe will eventually be on the other foot, and how Congress reacts to this White House will have consequences down the road.
