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By Daniel Cotter*
On October 8, 2019, White House Counsel Pat A. Cipollone wrote an eight-page letter to House Speaker Pelosi, and to Chairmen Engel, Schiff, and Cummings. The letter was described as being without legal basis and wrong. It is a dangerous letter for many reasons, including that it inaccurately addresses what impeachment is and how the process works.
The Constitution includes much on impeachment in Articles I, II, and III. The original document before amendments contains 4,543 words, and the provisions that address impeachment total 208 words, or 4.6% of the Founding Fathers’ directives. Impeachment was of obvious import.
Article I, §2 provides:
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
Article I, §3, includes the Senate duties in impeachment:
The Senate shall have the 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.
Judgment 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, judgment and punishment, according to law.
Article II, §4 provides who may be impeached:
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Finally, Article III, §2 informs we the people that cases of impeachment are not subject to jury trial, providing:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
The Federalist Papers also include some guidance on impeachment, specifically, Federalist No. 65 and No. 66, addressing the Senate’s power to try impeachments. The current Senate rules also provide general guidance for the Senate.
A read of these documents and prior impeachments would give the White House and those who argue the process is illegal or partisan some evidence that impeachment and the process is political in nature. As noted in Federalist No. 65, impeachment applies for cases where there is “abuse or violation of some public trust.” One could ask 1999 Representative Graham about that notion.
With all of the historical evidence, the following assertions from Cipollone do not stand up.
Your “Inquiry” Is Constitutionally Invalid and Violates Basic Due Process Rights and the Separation of Powers.
This statement is absurd on its face. The Constitution separates the impeachment process into the various branches. The President is the one who is attempting to subvert the “separation of powers” by attempting to influence and block Congress’s role and powers in impeachment.
The Invalid “Impeachment Inquiry” Plainly Seeks To Reverse the Election of 2016 and To Influence the Election of 2020.
Impeachment removes from office an elected federal official for the crimes listed in the Constitution and for “abuse or violation of some public trust.” The House is tasked with investigating and bringing impeachment charges if they are valid, and the Founders designed it that way. There is no basis to suggest that a past or present election might be collaterally addressed.
There Is No Legitimate Basis for Your “Impeachment Inquiry”; Instead, the Committees’ Actions Raise Serious Questions.
The Constitution does not address what process the House must follow. The House is given unlimited discretion as to how the House proceeds up to and including an impeachment vote. In addition, since the Clinton impeachment, House Republicans significantly changed the rules on the powers of committee chairs. Furthermore, there are no rules requiring any formal inquiry authorization. The House has broad authority, and, if the impeachment process gets to a trial, the Senate will have great discretion in how the trial proceeds. As the Supreme Court made clear in Nixon v. United States (1993), there is no judicial oversight on the impeachment process. Impeachment is nonjusticiable as it “involve[s] a political question that c[an] not be resolved by the courts.”
The White House letter has no basis in history or text and amounts to a diatribe with no legal bearing. It is another indication of the dangerousness represented by the current President of the United States in his view of the Constitution, its separation of powers, and its plain language.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).