1/ The most important & distressing point about the Cipollone letter is what I tweeted earlier, viz., that the WH Counsel, whose job is to ensure that the POTUS complies with the law and Constitution, is defending the "appropriateness" of Trump's breach of constitutional duty ...— Marty Lederman (@marty_lederman) October 9, 2019
It wasn't the specific crimes of Watergate that brought Nixon down. It was the narrative of lawlessness. Nixon said it himself, when he insisted "I am not a crook." The details of his crimes were, are, important; but public opinion was based on the appearance of criminality, the disregard for the legal process, the willingness of the Executive to bend the laws to the President's purposes. A lot of people decided Nixon was guilty of something after the Saturday Night Massacre. They didn't necessarily know what, but they knew innocent people didn't act to end investigations, and didn't have to obstruct them, either.
In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.
2/ ... rather than insisting it cease immediately. But another basic, inexplicable problem with the letter is largely being overlooked, too. Regardless of one's views about the "merits" of the arguments in the letter--re: "due process"; legislative motive; ...— Marty Lederman (@marty_lederman) October 9, 2019
3/ ... whether Trump's conduct was "completely appropriate" or not; whether the House's actions are "unprecedented," etc.--the proper, standard response to such alleged defects is to challenge them pursuant to ordinary process, e.g., in court, ...— Marty Lederman (@marty_lederman) October 9, 2019
4/ ... rather than to assert an authority to simply ignore legal process (e.g., congressional subpoenas) altogether. It's noteworthy, but hardly surprising, that the letter offers *no* authority for the proposition that the POTUS has the authority ...— Marty Lederman (@marty_lederman) October 9, 2019
5/ ... to simply "refuse to participate" in the process--a euphemism for acting in contempt of Congress. All the letter says in that regard is that the House has "left the President no choice." And that's obviously nonsense:— Marty Lederman (@marty_lederman) October 9, 2019
6/ This President and his Executive branch officials have exactly the same "choices" that every other witness or recipient of subpoenas, including previous Presidents, have always had to challenge the legality of congressional or executive or judicial processes. (cont.)— Marty Lederman (@marty_lederman) October 9, 2019
7/ That a White House Counsel would assert otherwise--and do so without bothering to cite even a shred of legal authority (because there is none)--is an utter embarrassment.@just_security— Marty Lederman (@marty_lederman) October 9, 2019
8/ An important "footnote" point of sorts: I'm a big believer that oversight disputes between the two political branches ought to be resolved in the first instance through the traditional give & take of the "accommodation" practice, w/courts a matter of last resort.— Marty Lederman (@marty_lederman) October 9, 2019
9/ Here, however, the POTUS/WHC are asserting that the congressional process itself is *fundamentally* illegitimate and therefore that the Executive can and should refuse to cooperate (respond to ordinary process) *altogether.* That is to say: Trump is saying at the start ...— Marty Lederman (@marty_lederman) October 9, 2019
The question is: is this a "Constitutional crisis" yet? Or does it only become one when Trump ignores a court order?10/ ... that the accommodation process will be futile because they won't give an inch. In *that* instance, the proper resort is to do what all other witnesses/targets/defendants have always done, rather than to assert the power to ignore legal process entirely.— Marty Lederman (@marty_lederman) October 9, 2019
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