"Not, I think, today, thank you!"

This is an outstanding analysis of Trump’s brief and how it is trying to hide the truth from the American people. https://t.co/wvxUa0GDGb

— Neal Katyal (@neal_katyal) January 21, 2020

Like a courtroom, governments run by rules, by procedures.  If I am party to a lawsuit, and the opposing party makes a proper request for information from me, I cannot say:  "No, I don't think so." There are rules and procedures that must be followed.  My grounds for refusal may be no more complex than "I think not," but any response that blunt and simple won't be supported by the court.

Adam Schiff is addressing the Senate just now, and he said that Trump never formally asserted any privilege over his staff; he just said "No."  NPR reporters were discussing the case before the trial began, and said the Democrats had erred in not going to court before seeking to impeach Trump for obstructing Congress.  My first response to that was:  why should the Congress seek the authority of the courts before impeaching a President for abuse of power by obstructing Congress in an impeachment investigation?  Isn't that akin to saying the President cannot be impeached unless a crime is proven against him (the logical extension of that argument is that until a criminal trial procures a conviction, impeachment can never occur).  But there's another problem with that argument, a more fundamental one.  The NPR reporters assumed Trump acted in good faith; that he used the rules and procedures of government to prevent staff from revealing information that courts might considered to be covered by "executive privilege."  But Trump didn't do that; Trump just said "No."  A party to a lawsuit can't just tell the court "No," and stand on that no.  Neither can a President tell the Congress "No," and stand simply on that "No."  If I tell the court "I don't recognize your authority," in deed if not in direct words, the court will show me it's authority rather swiftly, and doesn't need a final verdict in the case to do so.  Likewise if the President tells the Congress "Fuck off, I don't wanna," the Congress is not required to go to court to invoke the power of the judiciary against the President, a power the judiciary is, wisely, usually quite reluctant to enforce (any more than they will tell the Congress how to legislate).

The argument that Trump had grounds to refuse the requests of Congress assumes, in other words, that the President acted in good faith and accordance with recognized legal principles and governmental procedures.  But all Trump did is say "No."  And that kind of contempt of Congress, contempt of government, contempt of a co-equal branch of the federal government, the Art. I branch established by the Constitution, is a Constitutional crisis in itself.

It is not an argument for why the Democrats should have "done more" before voting on Articles of Impeachment.