October 10, 2019

Horse 2606 - The White House's Eight Page Letter Of Nonsense

In a glorious piece of knavery, the Counsel to the President Pat A Cipollone has written an eight page rejection letter with regards the legitimacy of the House's decision to commence impeachment proceedings against President Donald Trump.
The eight page argument is so badly constructed that if it was presented in a Constitutional Law 101 class, it would have to be be graded as an F, for failing to actually address the words of the Constitution itself.
The document comes off to me, as though it were written by someone who has never read the Constitution and even if they have, they certainly haven't understood what it says.

The document is split into three parts, which are all a unique kind of idiocy; which I can only assume are designed to throw sufficiently enough smoke into the air so that the general public is distracted. Mostly the general public also has not read the Constitution and neither has the majority of the commentariat who will report the news of this; so this letter doesn't need to be particularly grounded in the facts.

In the first part it tries to undermine the legitimacy of the impeachment proceedings, citing 'due process' and 'separation of powers' problems, which themselves are irrelevant because of the text of the Constitution (which I shall cite later).
In the second part it claims that the impeachment proceedings are designed to 'Reverse the Election of 2016' which is an outright lie, and 'To Influence the Election of 2020' which is a statement of fact but given that this is a political process contained within the Constitution and every impeachment proceeding is by its very nature political, that is like objecting to water being wet.
The third part tries to argue the basis of the impeachment, despite the fact that the appropriate time and place for that is if and when the impeachment indictment is brought to the Senate if it gets that far.

The letter either deliberately misunderstands how the impeachment process works or is just so woefully incompetent that it arrives at that same place.

Granted, that I am not a lawyer and am not qualified to stand at the bar and deliver addresses but at least I have read the US Constitution and the Federalist Papers and the Anti-Federalist Papers and read enough law to know my way around the document with a fair degree of competency. I have also spent the better part of two decades in and around the law as either a direct employee of law courts or in the offices of a forensic accounting firm, to have more than an elementary idea of how to read law.
At this juncture, even I can see that this is the equivalent of spray painting a pig and calling it a guide dog. That isn't a very funny joke and doesn't prevent the blind from falling into an open elevator shaft.

For the record, the link to the eight page letter in question is immediately below. I will be quoting this verbatim where necessary. Suffice to say, I think that the letter is fraught with problems.

- White-House Letter to Speaker Pelosi Et Al, 8th October 2019

For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans. You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives. All of this violates the Constitution, the rule of law, and eve1y past precedent. Never before in our history has the House of Representatives-under the control of either political party-taken the American people down the dangerous path you seem determined to pursue.
- Page 1

That first sentence, shows that the counsel advising the President is either a moron or is lying. It might very well be possible to have a "right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans" if impeachment was in fact a court case but it isn't.

Impeachment is the process by which the Congress presses charges against an official; in this case the President. It is only at the end of an impeachment process which the charges have formally been drawn up, that someone has a formal chance to answer them and to formulate a defence. As for the statements that the President has been denied "right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans", every single one of those issues is nonsensical considering that impeachment is not a formal trial and those things only happen within a formal trial. As impeachment is not the trial, then saying that the President has been denied something which doesn't actually exist at this point in the process, is monumentally stupid; and if that is the advice of Mr Cipollone, then he should seriously give up lawyering because he fails at even the most basic of skills.

Of itself, impeachment doesn't remove an official from office. In principle, the impeachment process is akin to the investigation and drafting of charges by the relevant criminal prosecution service and as such, it is the process which produces the statement of charges which will then have to be answered for. The authority that actually has that function to measure and test the charges and where the rights to "right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans" would be applicable, would be in the Senate Hearings and not the House.

The House of Representatives as per the US Constitution has the sole power of impeachment as per Article I, Section 2, Clause 5 of the US Constitution.

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
- Article I, Section 2, Clause 5

If the House then has the sole power of impeachment, the obvious question of how they are to conduct their process is completely open. There is in fact no set of instructions or limits on how they are able or allowed to go about doing it. The House is basically conducting an investigation to see if there are any charges and how they might be written, similarly to how the police go about their investigations in a criminal matter. Then based upon the evidence that they have collected in the process of discovery; which may involve subpoenaing documents and transcripts (or audio tape as was the case with Nixon in 1974), they will come to a decision which usually involves a simple majority of members of the House (218 of 435) and as they are the House of Representatives with that legal capacity to decide whether or not to indict as a sitting President, they act in effect as the grandest of Grand Juries.

It should be pointed out that there isn't a right conferred on the President to discover where the information that the House has found, not to unmask the whistleblower during the investigation stage and neither should there be. A criminal does not have the right to see the documents that the police have in charging them, unless they are actually brought out in material evidence in the trial. The House is perfectly allowed to conduct its investigations in secret and arguably it should do, so as to not pollute the evidence which may be brought forth. Furthermore, if the President did have the right to cross examine witnesses then they might not be so forthright in coming forward in the first place.
It is then and only then, that these things, the "right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans" becomes relevant because it is the Senate who has the power to try impeachments.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
- Article I, Section 3, Clauses 6 & 7

It is the Senate who can call witnesses &c. and it is then that the President actually has those rights to do those things that the complaint that Counsellor Pat A Cipollone becomes relevant. If anything, this letter itself actually forms part of an obstruction of justice by the President; which notably the Mueller report found ten alleged instances of potential obstruction. While the House Judiciary Committee did open an investigation of those allegations, nothing of import arose from them.

As for the objections raised by Counsel Cipollone:

Your inquiry is constitutionally invalid and a violation of due process. In the history of our Nation, the House of Representatives has never attempted to launch an impeachment inquiry against the President without a majority of the House taking political accountability for that decision by voting to authorize such a dramatic constitutional step.
- Page 2

There are no rules in the Constitution for determining the nature or the mechanism by which an impeachment proceeding has to take place. Nowhere in the Constitution does it say exactly how witnesses are to be questioned or what kind of legal representation they are entitled to, if any. This is a stupid objection.

These due process rights are not a matter of discretion for the Committees to dispense with at will. To the contrary, they are constitutional requirements. The Supreme Court has recognized that due process protections apply to all congressional investigations.
- Page 3

Granted, SCOTUS has decided that the Congress is in fact limited in conducting investigations within the scope of the law and cases like Watkins v. United States (1957) which states that the Congress does not have the the authority to expose the private affairs of individuals; the duty of the Congress and ability to secure "needed information has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures" per Quinn v. United States (1955).

To comply with the Constitution's demands, appropriate procedures would include-at a minimum-the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony.
- Page 4

Notwithstanding the fact that the right "to see evidence, to call witnesses, to have counsel present, to cross-examine witnesses, to make objections" &c. happens as part of the due process of the impeachment case being tried in the Senate, I am wondering exactly what sort of things that Mr Trump expects to do during the collection phase of the impeachment process. The letter already states on page 2 that the President rejects the process and then goes on to state that he cannot participate in the inquiry. How exactly do you propose to participate in a process which you have already refused to participate in?

Furthermore, when you consider that this already hinges around a piece of evidence which the President refuses to submit, and that the most valid witness to the phone call to Zelenskyy is Mr Trump himself, then does he propose to call himself as a witness and then refuse to answer his own questions put to him by himself? That right there is some ouroboros snake eating its own tail kind of stuff.

There is also an extraordinary piece of insanity on page 7, which I simply cannot follow within the framework of the Constitution.

Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch carmot be expected to participate in it. Because participating in this inquiry under the current unconstitutional posture would inflict lasting institutional harm on the Executive Branch and lasting damage to the separation of powers, you have left the President no choice.
- Page 7

Firstly, the House obviously does have the sole power of impeachment as already explained here; so to assert that it doesn't have any 'legitimate constitutional foundation' is an outright lie. Secondly, the questions of 'fairness' and 'due process protections' are both a question for when the case is tried in the Senate which is not the House; so to accuse the House of violating conditions placed on another legislative chamber is a nonsense.

Thirdly, it is asserted that the inquiry would 'inflict lasting institutional harm on the Executive Branch and lasting damage to the separation of powers'. Okay, how? How exactly does that happen?

This administration has been a shambles almost from day one. I do not know how holding this administration to account for the things it has done, should put any future administration in any 'institutional harm' at all. Previous impeachment proceedings have done no such thing. The impeachment proceedings of Richard Nixon may have cast a shadow over the administration of Gerald Ford and may have even contributed to the election of Jimmy Carter but by 1980 there wasn't any hint at all of 'institutional harm' caused by the impeachment inquiry of Nixon. It is a stupid thing to suggest that the impeachment proceedings relating to Mr Trump will have any shadows beyond 2024.

It is also inconceivable to me exactly how there is a 'separation of powers' question here, much less how there is any hint that this impeachment proceeding is going to cause lasting damage to them.
Impeachment is the formal process of writing an indictment, which is then passed to the Senate for trial and to be tested. This mechanism is specifically stated in the Constitution. It doesn't attempt to run the daily business of the nation which is the constitutional duty of the Executive Branch and it doesn't attempt to hold court on the interpretation of the law which is the constitutional duty of the Legal Branch.
I have no idea of what kind of 'separation of powers' violation is imagined here. This is probably supposed to be so utterly buckwild that of course it cannot be argued with. It is really difficult to form a coherent argument against nonsense.

Consistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office, President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.
- Page 7

As was pointed out to me by a QC yesterday, impeachment proceedings do not even require the President to participate in the inquiry. If the police have an unhelpful person which they suspect may have committed a crime, which is after all the entire point of the impeachment process, then there isn't an obligation for that person to to say anything, but it may harm their defence if they do not mention something which when questioned about later on, which they rely on in court. While anything that the suspect does present or say may be given in evidence, the people who then go on to judge the case may wonder why they did not tell the investigators what happened when they were asked.
In American law, these particular principles have their basis in the case of  Miranda v Arizona (1966) and although there can not be an inference of guilt which is drawn from a defendant's refusal to testify in his own defense as per Griffin v California (1965), that still doesn't mean that the President is required to say anything.

I will also point out that the President himself has said that he will "plead the Fifth" which is also kind of a nonsense considering the that the Fifth Amendment to the US Constitution which opens:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...
- Amendment V

...also doesn't actually apply because the presentment or indictment of a Grand Jury (in this case the House is the Grand Jury), isn't tried in the House.

Beyond those points of objection most of the eight pages of the letter issued by Counsellor Pat A Cipollone are materially worthless. Most of the footnotes of the objection aren't even based in legal argument or opinion that are relevant.

Ultimately this eight page letter is an attempt at subterfuge and not a very good one either. It is little more than a poor player that struts and frets his hour upon the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury; signifying nothing.

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