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Trump's legal strategy against impeachment is on shaky constitutional grounds, scholars say

David G. Savage, Los Angeles Times on

Published in News & Features

WASHINGTON -- Constitutional lawyers said Wednesday that President Donald Trump's vow not to cooperate with the impeachment inquiry is both unprecedented and unlikely to spare him from being formally charged by the House.

In fact, they say, it may only increase the chances that he will be impeached.

The Constitution says the "House of Representatives shall have the sole power of impeachment," and it does not give the president a specific role in the process. A president is in some sense like an ordinary defendant who may be subject to a criminal investigation and an indictment, all without his participation or involvement, scholars say.

"The president's cooperation is not required or needed," said University of North Carolina law professor Michael J. Gerhardt, an expert on impeachment. And "the House may make that defiance grounds for impeachment," he added, noting that in 1974, a House committee approved articles of impeachment against President Richard Nixon based in part on his refusal to comply with congressional subpoenas.

Though both Nixon and President Bill Clinton tried behind the scenes to slow or stop impeachment proceedings, they also attempted to cooperate at times, or at least appear to, out of respect for the process and fear they might look like they were hiding something.

"There is no precedent for the president doing what President Trump is doing here: saying I will flatly refuse to cooperate and ordering all employees of the executive branch to refuse to cooperate as well," said professor Frank O. Bowman, who teaches impeachment law at the University of Missouri and Georgetown.

 

In Tuesday's eight-page letter to House Democrats, White House Counsel Pat Cipillone pronounced Trump innocent of wrongdoing and the inquiry "unconstitutional."

He said Trump's July 25 phone call asking the new president of Ukraine to do him "a favor" and investigate former Vice President Joe Biden and his son Hunter was "completely appropriate. The president did nothing wrong, and there is no legitimate basis for an impeachment inquiry."

Legal experts, however, say Trump's actions were exactly the kinds of things that framers were thinking of when they included an impeachment provision in the Constitution. Trump has acknowledged that even as he asked Ukraine to investigate one of his political opponents, he had ordered that nearly $400 million in aid to Ukraine be withheld.

The White House letter suggests that the inquiry is invalid because there was no formal House vote to launch it, and that Trump and Republicans have so far not been given the right to see evidence and call witnesses. Based on this conclusion, he said, "President Trump and his administration cannot participate in your partisan and unconstitutional inquiry."

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