THE BIG ONION

There are a few things you should know about Pasquale ("Pat") A. Cipollone (pictured at the White House below):

•  He is a conservative Catholic, like Brett Kavanaugh
• He has ten children, the oldest of whom worked for Laura Ingraham at Fox
• He was the managing editor of the University of Chicago Law Review
• He was an assistant to Attorney General Bill Barr (1992-93)
• He is a co-founder of the Catholic National Prayer Breakfast
• He is a member of the ultra-conservative Federalist Society
• He is the lead White House counsel on l’Affaire Ukraine 
• He announced in an 8-page letter to Congress that the White House would not participate in the current impeachment inquiry conducted by the House.
• His name means big onion in Italian. 

The onion---not to be confused with The Onion—hey!  Wait a minute.  Why not?  Starting over:  The onion is a member of the Allium (garlic) family, which comprises jives, rapscallions, and leaks.   The health effects of onions include improving mood, reducing inflammation, and alleviating insomnia in sitting presidents.  Onions are also the source of a strong antidemocratic compound that helps combat the formation of free radicals known to cause cancer in the polity.  The Journal of the National Cancer Institute found that men with the highest intake of allium vegetables had the lowest risk of political cancer.  Onions are toxic to dogs, cats, guinea pigs, and many other animals, especially Democrats.  Onions make you cry because they are sulphurous.  

Speaking of humor, let’s talk about the 8-pager.  Just in case you were afraid that it puts a dent in the legitimacy of the impeachment proceedings, let me say flat out that it does not.  The letter makes two “legal arguments” against the proceedings, both of which are laughable.  The first is that the impeachment inquiry is invalid because Nancy Pelosi announced it at a press conference.  The second is that the inquiry is unconstitutional because it denies the President due process and therefore the White House does not have to participate in it. 

Debunking the first “legal argument”(that the proceeding is invalid) first.  Article I, Section 2, Clause 5 of the US Constitution provides (emphasis added):

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

 

There are no procedures set out in the Constitution for impeachment by the House.  An excellent Lawfare blog post written by Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, discusses what the lack of procedures means for the current inquiry.  Spoiler alert:  zip.  Here is the link:  https://www.lawfareblog.com/must-house-vote-authorize-impeachment-inquiry.

Is it constitutionally acceptable for the House speaker to initiate an impeachment “by means of nothing more than a press conference”? In short, yes.

The constitutional text on this issue is spare. The Constitution simply says that the House has the sole power of impeachment. Ultimately, if the House wants to impeach someone, it needs to muster a simple majority in support of articles of impeachment that can be presented to the Senate. How the House gets there is entirely up to the chamber itself to determine. There is no constitutional requirement that the House take two successful votes on impeachment, one to authorize some kind of inquiry and one to ratify whatever emerges from that inquiry. An impeachment inquiry is not “invalid” because there has been no vote to formally launch it, and any eventual impeachment would not be “invalid” because the process that led to it did not feature a floor vote authorizing a specific inquiry.

Of course, the House’s own rules might require such a vote, and the House must follow its own rules until it chooses to change them. But there is no rule requiring such an authorizing vote, and neither [minority Leader Kevin] McCarthy nor Cipollone points to one.

Cipollone’s letter suggests that only an authorization vote would make the House “democratically accountable” for its actions. But it is not obvious why that should be. To actually impeach an officer, the House members do have to record a vote and be individually accountable for whether or not they took that step. Why should they have to separately go on record merely to authorize an inquiry? If the inquiry results in an impeachment vote, there will be a record of each member’s position. If the inquiry does not turn up sufficiently serious impeachable offenses, then the process dies.

Cutting through the BS and moving right along to the second “legal argument” (that the current impeachment inquiry is unconstitutional because it denies the President due process).  This is where things stray beyond funny and get embarrassing for Cipollone.  First of all, an impeachment is akin to a grand jury proceeding.  It is not a criminal trial.  The subject of a grand jury proceeding is not entitled to be present at the grand jury, either personally or through counsel.  He is not permitted to examine witnesses, call his own witnesses, or mount a defense.  This was the case with the grand juries summoned in the Mueller investigation.  

Second of all, the sweeping due process rights Cipollone claims for the President in the impeachment inquiry are available when the Senate tries the impeachment —but only to the extent the Senate enacts such rules.  But even then, Cipollone misreads or deliberately distorts the cases he cites in favor of his due process argument.   

One such case, Hastings vs. United States, concerned the impeachment of a federal judge.  It held that due process applied to the Senate impeachment trial, but the holding in Hastings was later vacated (i.e. overturned) because of another case, Nixon vs. United States (not that Nixon).  Cipollone mentions the vacation but says it was for other reasons irrelevant to his argument.  That is completely false.  He is citing Hastings for a due process argument that was later rejected by the Supreme Court.

An article in The Volokh Conspiracy (trust me—it’s legit, despite the name) explains (emphasis added).  Here is the link:  https://reason.com/2019/10/10/the-white-house-counsel-is-making-political-arguments-not-legal-ones/

When Judge Alcee Hastings challenged his impeachment and removal from the bench, District Court Judge Stanley Sporkin concluded that the "fundamental constitutional concept of due process" applies to impeachment trials in the Senate. It made no such claim with regard to impeachment inquiries in the House. In any event, the District Court's conclusion about Senate impeachment trials is not good law.

While the [Cipollone] letter claims the Hastings decision was "vacated on other grounds," reading the opinion tells a different story. At the time of the Hastings decision, another federal judge (Walter Nixon) was also challenging his impeachment and removal, arguing that the procedure utilized by the Senate did not satisfy the constitutional requirement of a "trial" in the Senate. This was the precise same argument at issue in Hastings. Indeed, as the court itself noted in Hastings, Nixon concerned "the identical issue presented in this case."

In Nixon, Chief Justice William Rehnquist (joined by the Court's conservatives) concluded that the content of impeachment proceedings—including the conduct of a trial in the Senate—is wholly in the control of the legislative branch.

This is entirely consistent with Article I, Section 6, Clause 3 of the US Constitution, which states (emphasis added):

The Senate shall have 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.

Judgement 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, Judgement and Punishment, according to Law.

The Volokh article continues:

Nixon makes clear that each house of the legislature gets to set the rules for its part of the impeachment process. If there is no judicially enforceable constitutional constraint on the conduct of a Senate impeachment trial, it is particularly hard to argue for the existence of any such constraints on a House impeachment inquiry. After all, a House impeachment inquiry is, at best, analogous to a grand jury indictment, not a trial. So even if we thought more process might be required, it would not be much at all—and certainly would not entail all the rights to which the White House counsel's office tries to argue that the President is entitled as a matter of law, let alone "constitutionally mandated due process." 

Some of Cipollone’s law school classmates were so aghast at his letter, that they penned a plea that he retract it.  As reported by NBC News:

Law classmates of White House Counsel Pat Cipollone sent him a letter on Thursday, claiming his decision to block material and witnesses from the House impeachment inquiry "distorts the law and the Constitution," according to a copy of the letter obtained by NBC News.

"We are sorry to see how your letter to the congressional leadership flouts the traditions of rigor and intellectual honesty that we learned together," said the letter from members of the class of 1991 at the University of Chicago Law School.

Click here to read the letter

                                                                                              

At the risk of stating the obvious, Cipollone's letter states political arguments.  It does not state legal arguments.  And it wasn’t really written for Congress.  It was written for the President and his supporters.  I might add that the closing paragraphs seem to have been written by the President himself (with spelling and grammar mistakes corrected, of course).  Cipollone closes with a classic Trump stump speech:

The President has a country to lead. The American people elected him to do this job, and he remains focused on fulfilling his promises to the American people. He has important work that he must continue on their behalf, both at home and around the world, including continuing strong economic growth, extending historically low levels of unemployment, negotiating trade deals, fixing our broken immigration system, lowering prescription drug prices, and addressing mass shooting violence.

We hope that, in light of the many deficiencies we have identified in your proceedings, you will abandon the current invalid efforts to pursue an impeachment inquiry and join the President in focusing on the many important goals that matter to the American people.

 

Boo hoo!  The Big Onion is starting to make me tear up.  Maybe Cipollone is improving the President’s mood and reducing executive depression and inflammation with his letter.  But I find it a toxic attempt to confuse the public with legalese, falsehoods, platitudes, and unvetted (or deliberately misleading) case law citations.  It has the patina of "Legal," but if you peel away the layers, this onion is rotten inside. 

 

Keep it real!

Marilyn