HEAT ALERT

Heat blankets the region; heat advisory, air quality alert issued for the Hudson Valley

Experts: White House has dubious reasons to ignore subpoenas

The impeachment process is fundamentally unfair. Congress lacks authority to investigate the president. Witnesses should have executive branch lawyers.

News 12 Staff

Nov 4, 2019, 10:15 PM

Updated 1,689 days ago

Share:

The impeachment process is fundamentally unfair. Congress lacks authority to investigate the president. Witnesses should have executive branch lawyers.

White House attorneys are throwing out an array of arguments for keeping its officials from cooperating with the congressional impeachment inquiry. But legal experts say they are making a weak case.

Some even say the refusal to cooperate with the probe run by House Democrats could amount to obstruction that might itself become an article of impeachment against President Donald Trump.

"Not only can it be, it absolutely should be," said Heidi Kitrosser, a University of Minnesota constitutional law professor who has written about impeachment. "This is an effort to stymie Congress in one of its core roles."

The inquiry concerns whether the Trump administration sought to pressure Ukraine into investigating business done there by Hunter Biden, son of Democratic presidential candidate Joe Biden, and also probing whether Ukraine was involved in the 2016 U.S. election.

Four White House officials, including the top lawyer on the National Security Council, defied subpoenas from House investigators demanding they appear for depositions Monday.

Although the White House did not flatly assert executive privilege as the reason, it came extremely close, Kitrosser said.

"They are probably trying to have it both ways and trying to avoid the legal and political ramifications of claiming executive privilege while getting the advantage of it," she said.

Politically, an executive privilege claim could cross a line leading to more support for impeachment. Legally it's more or less the last attempt a president could make to prevent disclosure of evidence or testimony.

The NSC lawyer, John Eisenberg, is "absolutely immune" from congressional testimony as a senior adviser to the president, Eisenberg's attorney said in a letter. The letter involved separation of powers arguments in making that claim, contending his testimony is comparable to the president himself being forced before the inquiry.

Two other officials, Robert Blair and Michael Ellis, declined to testify unless they were allowed an executive branch lawyer present. The Justice Department issued a legal opinion Monday supporting that position, and the White House put out a statement.

"Democrats are just trying to force anyone, with any remote connection to this issue, to testify without administration lawyers present, and that puts national security at risk and also creates risks for potential witnesses who may unknowingly divulge privileged or classified information," White House spokesman Hogan Gidley said.

Democrats say there's no basis for ignoring their subpoenas. In a letter Sunday to Blair's attorney, the three committee chairs leading the impeachment probe said the claims have "no merit."

"Instead, it is the latest in a long line of baseless procedural challenges to the House of Representatives' authority to fulfill one of its most solemn responsibilities under the Constitution," they wrote.

Even if Trump were to overtly claim executive privilege, some experts say there's no constitutional provision that it would apply to impeachment.

"No communication involving the White House is subject to absolute immunity," said David Driesen, a Syracuse University law professor who has studied the issue. "No person is immunized from appearing by any claim of privilege known to the law."

This latest resistance to House subpoenas and testimony fits into the broader White House claim that the entire process is fundamentally unfair. Trump's lawyers have also made immunity claims in seeking to keep his tax records secret, but a New York court ruled Monday they can be released in a case likely to be settled by the U.S. Supreme Court.

In a recent letter to Democratic leaders, presidential counsel Pat Cipollone said Trump should have the kinds of due process rights typically found in court trials: the right to question witnesses, the right to see evidence, the right to cross-examine witnesses, and so forth. That position has been echoed by numerous Republican lawmakers.

"The president cannot allow your constitutionally illegitimate proceedings to distract him and those in the executive branch from their work on behalf of the American people," Cipollone wrote. "The president has a country to lead."

However, legal experts note that the Constitution and even prior impeachment proceedings do not lay out a roadmap for those kinds of rights in the initial House inquiry. Instead, that would come in a trial before the Senate, if it gets that far.

"The Constitution says virtually nothing about the procedures the House and Senate are to employ in carrying out their respective impeachment roles," wrote Georgia State University law professor Neil Kinkopf in recent article. "Indeed, the Constitution is completely silent regarding the procedures in the House."

Driesen said all of the efforts by the White House to slow down or halt the impeachment inquiry are just that - none have a basis in the law.

"Trump defies the Constitution and tries to distract from that fact by making baseless attacks. This is a good example," Driesen said.


More from News 12
2:11
HEAT ALERT: Heat advisory and air quality alert in effect through Thursday; cooler temperatures return for the weekend

HEAT ALERT: Heat advisory and air quality alert in effect through Thursday; cooler temperatures return for the weekend

0:27
State police: Person dead, another seriously injured in Woodbury crash

State police: Person dead, another seriously injured in Woodbury crash

2:46
‘People have worked so hard.’ Woman who helped make Juneteenth a national holiday visits New Jersey

‘People have worked so hard.’ Woman who helped make Juneteenth a national holiday visits New Jersey

0:29
Police search for suspect in stabbing incident of City of Newburgh resident

Police search for suspect in stabbing incident of City of Newburgh resident

2:07
Peekskill community mourns loss of caseworker who died after being assaulted on the job

Peekskill community mourns loss of caseworker who died after being assaulted on the job

1:40
Yonkers fire crews responded to a house fire during extreme heat on Wednesday

Yonkers fire crews responded to a house fire during extreme heat on Wednesday

1:40
Beating the heat: How residents are keeping cool

Beating the heat: How residents are keeping cool

1:45
Middletown woman’s family alleges mother of 7 died from withdrawal mismanagement at Orange County Jail

Middletown woman’s family alleges mother of 7 died from withdrawal mismanagement at Orange County Jail

1:33
Stony Point takes steps to help kids cool off with early opening of Splash Pad

Stony Point takes steps to help kids cool off with early opening of Splash Pad

1:50
Middletown celebrates end of slavery in midst of stretch of intense heat

Middletown celebrates end of slavery in midst of stretch of intense heat

0:42
Police report shows private school bus driver found at fault in Spring Valley accident that killed a 6-year-old girl

Police report shows private school bus driver found at fault in Spring Valley accident that killed a 6-year-old girl

2:35
Westchester County opens pools and beaches early as intense heat grips region

Westchester County opens pools and beaches early as intense heat grips region

1:42
Mount Vernon celebrates Juneteenth

Mount Vernon celebrates Juneteenth

0:28
Poughkeepsie Common Council unanimously opts into rent stabilization

Poughkeepsie Common Council unanimously opts into rent stabilization

1:07
DOT seeks input on I-84 freight parking locations

DOT seeks input on I-84 freight parking locations

0:55
Headlines: Woman stabbed in Newburgh, Peekskill homicide, driver injured as power lines fall on car

Headlines: Woman stabbed in Newburgh, Peekskill homicide, driver injured as power lines fall on car

0:31
Dollar Tree left lead-tainted applesauce pouches on store shelves for weeks after recall, FDA says

Dollar Tree left lead-tainted applesauce pouches on store shelves for weeks after recall, FDA says

0:20
Kingston road closure for new lane markings

Kingston road closure for new lane markings

0:28
Voters in 3 districts approve school budgets after earlier rejections

Voters in 3 districts approve school budgets after earlier rejections

0:46
Bedford police officers honored for saving family from house fire

Bedford police officers honored for saving family from house fire