DIGENOVA: Nothing Constitutional About An Impeachment Process With Secret Evidence And Secret Witnesses

REUTERS/Carlos Barria

Joe DiGenova Former US Attorney
Font Size:

The forceful and thorough rebuke that White House Counsel Pat Cipollone delivered to the “impeachment inquiry” will go down in history as the definitive document defeating an attempted coup.

Over the course of eight scathing pages in a letter last week, Cipollone thoroughly deconstructed the absurd “Ukrainegate” narrative that House Intelligence Committee Chairman Adam Schiff (Calif.) has tried to construct.

Cipollone critiqued the process by which Democrats are seeking to railroad the executive branch, arguing they “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.”

By refusing to let the full House vote to begin an impeachment inquiry, and instead leaving control of the process in the hands of committee chairmen, Cippolone contends the impeachment is grossly unconstitutional. He added that the executive branch will not give it a veneer of legitimacy by participating to any greater extent than the law requires. (RELATED: Giuliani Is The Latest Victim Of Anti-Trump Prosecutors Exploiting Ambiguous Laws)

The letter — addressed to Schiff, House Speaker Nancy Pelosi (Calif.), House Oversight Chairman Elijah Cummings (Md.), and House Foreign Affairs Chairman Eliot Engel (N.Y.) — elicited a hysterical outcry from the media, which characterized it as the president “refusing to cooperate” or “defying Congress” as if the plain statements of facts and precedent supporting the president’s legal and constitutional rights were itself akin to a crime. See how this works with these power-hungry miscreants?

Within a day of the letter’s publication, Democrats, journalists, and leftist commentators were essentially claiming that the president’s refusal to follow the script written by his would-be impeachers is itself grounds for impeachment. “All that defiance does is add to the case,” Democratic Virginia Rep. Gerry Connolly told reporters, echoing threats Schiff made at the very beginning of this sham.

The problem with this argument, of course, is that it has no basis in the law.

Consider one of its more eloquent formulations, from Watergate-era House Judiciary Committee Counsel Micheal Conway’s opinion article for NBC News. If you had any question of where NBC stands on the matter, embedded right in the article is a video titled, “It Doesn’t Matter if Trump Committed a Crime He Should Still Be Impeached.”

Conway, as is so common among the Watergate celebrities the media are so eager to trot out against Trump, uses rhetorical chicanery in an awkward attempt to fit the facts of the current situation into the Richard Nixon paradigm. He conflates Cipollone’s general statements that executive branch officials are not obligated to honor the Democrats’ vague and open-ended demands for documents or testimony with Nixon’s infamous refusal to comply with a federal court subpoena in a specific criminal investigation.

Conway inaccurately attributed President Nixon’s position in U.S. v. Nixon — that a universal executive privilege immunizes any conversation between the president and his advisers from all judicial oversight — to Cipollone. The two are easily distinguishable.

Set aside, for a moment, the distinction between a federal court subpoena in a criminal investigation and a partisan congressional “inquiry” that isn’t even backed up by an impeachment resolution — let alone an allegation of criminal wrongdoing — to support it. Even in Nixon’s case, the Supreme Court explicitly recognized the very real existence of executive privilege to “protect military, diplomatic, or sensitive national security secrets.” Cipollone’s letter does no more than assert that employees are not to waive that privilege without express permission, even if they receive a threatening letter from Adam Schiff.

Furthermore, Conway ignores the fact that the subpoena in Nixon dealt with the release of tapes to be examined in camera — that is in private, in the presence of a judge, and for the specific purpose of finding evidence of criminal wrongdoing. That’s a far cry from Adam Schiff’s demand for documents that his Party can use as opposition research for the 2020 election campaign. (RELATED: Democrats Never Make Policy For ‘Personal, Political’ Reasons — Just Ask Muammar Gaddafi)

The criticisms made in Cipollone’s letter are manifestly reasonable. Cipollone lays out a set of very basic demands for guarantees related to due process and fairness that any president — or any private citizen, for that matter — would be insane to cooperate in any proceeding without.

As Cipollone points out, House Judiciary Committee Chairman Jerry Nadler (N.Y.) made virtually the same demands of his Republican colleagues when a president of his own party, Bill Clinton, was being impeached.

Democrats have refused to put any kind of impeachment resolution to a vote, leaving their “impeachment inquiry” in a state of constitutional limbo that amounts to business as usual with a stern press conference in which no questions from the obedient media were taken. They have blocked any means by which a fair inquiry could be had.

For example, Democrats have refused to grant subpoena powers to the Republican ranking members of the committees investigating their allegations against President Trump, meaning the rest of Congress and the American public will be left in the dark regarding Schiff’s collusion with his CIA “whistleblower.”

Even as leading Democrats loudly chant the mantra that “no one is above the law,” they are taking every precaution to ensure that no one is allowed to scrutinize their own conduct. Given that impeachment is always an essentially political remedy, and that the Democrats’ tenuous claim to legitimacy rests almost entirely on public opinion, that rank hypocrisy transforms this affair from a political overreach to a theatrical farce.

Pelosi, Schiff, and the rest of the impeachment hawks probably thought they had this whole coup cleverly choreographed down to the smallest detail. Cipollone’s letter makes it clear that they miscalculated, and one day we’ll likely remember this as the moment that the tide turned against this ridiculous era of hoaxes against President Trump once and for all.

Joseph diGenova served as the United States attorney for the District of Columbia from 1983 to 1988 and as an independent counsel. He is a founding partner of Washington, D.C. law firm diGenova & Toensing, LLP.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.