Is the Constitution Unconstitutional?

Yesterday, Donald Trump’s White House Counsel told the House of Representatives that the White House would not cooperate with the impeachment inquiry in any way. The letter began:

I write on behalf of President Donald J. Trump in response to your numerous, legally unsupported demands made as part of what you have labeled contrary to the Constitution of the United States and all past bipartisan precedent-as an “impeachment inquiry.” As you know, you have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process.

For example, you 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. You have conducted your proceedings in secret.

In essence, the letter claims the impeachment inquiry has no Constitutional basis since the House has not voted to initiate the inquiry and since the Republicans don’t have subpoena power.

The problem with this line of thought is that the Constitution does not require  a House vote or any particular procedures. Here is what the Constitution says:

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. (Article 1, Section 2)

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 1, Section 3)

The House acts as a grand jury which does work in secret. The House investigates possible charges and if necessary constructs Articles of Impeachment which are then tried in the Senate. Because the Constitution doesn’t specify procedures, the House can do things publicly and privately or in some combination.

It appears to me that Trump is painting himself into a corner and is trying to buy some time. However, many of those following him might believe that his rights are being infringed just because he said so.

At least two of his current supporters once offered a different point of view of the executive branch’s failure to cooperate with Congress.  Lindsey Graham had this to say about Nixon:

This is the situation we are now in with Trump. He has repeatedly failed to comply with requests for information and subpoenas or allow his staff to comply.

Trey Gowdy, who is now going to assist Trump in his defense, once agreed it was wrong to withhold information.

Trump’s letter, in essence, argues that the Constitution is unconstitutional. Trump wants to drive the process but has no authority to do so.

38 thoughts on “Is the Constitution Unconstitutional?”

  1. >>>The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. (Article 1, Section 2)<<< I think the point is that the House has the power of impeachment and, as of yet, the House has done nothing. Remember, the House acts by vote of the body, not by declarations of individual members. The Constitution does not give the power of impeachment to individuals in the house, or to a subset of the House, but to the House. This is the same "House" that chooses speakers and officers. That is not done by a few people but by a vote of the House. In the same way, the House impeaches, not a few members of the House. Why won't Pelosi bring an impeachment vote to the House floor? That is a much more interesting question. She surely has the votes for it. So why doesn't she put it on the floor and put GOP members in the place of having to vote one way or the other?

  2. We are in a Constitutional crisis for sure now… and I’m not sure there’s much we ordinary people can do? Call our representatives? (Is it worth calling our GOP ones?) Pray the courts hold the line on the rule of law? If Trump gets away with everything he’d like to in this crisis, then it’s game over, because every other right-winger/religious right (and maybe extreme left as well) will begin to operate with like impunity as much as they can.

    1. contacting your reps and senators, esp. the GOP ones, is a good idea. If the Repubs in congress realize that they have pissed off enough people they are going to forget about Trump’s base. they will realize they might not get re-elected w/o Trump’s base, but that they definitely won’t get re-elected if that is all they have.

  3. The Constitution is unconstitutional? That comes under the heading of “Nice try. No.”

  4. Is the Constitution Unconstitutional?

    “Trump Tweeted It,
    I Believe It,
    THAT SETTLES IT!”
    — 81% of Evangelical Christians(TM)

    1. Man must have to carry around a bucket of wipes with him; he has so much blood on his hands.

  5. 1. Lord The Donald doesn’t know what is in the Constitution, except he’s sure it gives him unlimited power, and allows everyone to own as many deadly weapons as they desire.
    2. The Republicans don’t care what is in the Constitution, and haven’t for decades.

  6. The letter from Pat Cipollone, the White House Counsel, is nothing less than a declaration of war on the Constitution. He should be summoned before whatever bar he belongs to, and ordered to show cause why he shouldn’t be disbarred.

    Any private attorney who so misrepresented the law, who treated the opposing party in the way he did, would likely be suspended, if not outright disbarred. He and Trump have served notice that they have no compunction about violating the Constitution. (We have long known that Trump likely hasn’t even read the Constitution. He certainly didn’t understand it if he did.)

    For all Trump’s whining about a “coup”, it is he and his minions who have made it abundantly clear they have no use for the Constitution or the rule of law. It is he and his minions who are acting against the Constitutional order.

    (And when is Giuliani going to withdraw from representing Trump? Both of them are in legal jeopardy, and their interests conflict. Any attorney in Giuliani’s position in a normal case would have been disqualified by now. That Giuliani hasn’t withdrawn is yet another reason his privilege to practice law should be taken from him immediately.)

    1. Lame Claim to Fame: Rudy Giuliani was the commencement speaker at my law school graduation almost two decades ago. He has certainly . . . um, changed.

    2. I doubt very much the Giuliani will withdraw from representing Trump, because it would effect his ability to assert attorney/client privilege.

      1. He doesn’t have a choice in the matter. If it’s raised with a court, the court will order it. If it’s raised with the bar, they can just suspend him pending investigation.

    3. To play a little devil’s advocate here, Pat Cipollone isn’t making a legal argument. He’s making a political argument. If Congress were to go through the courts *then* he would have to make a legal argument, and that argument might look much different than this letter. It’s no different than, when the police have video evidence of someone committing a crime, their lawyer saying to the press “The video evidence the police have completely exonerates my client.” It seems detached from reality, unless you understand it as just an attempt to sway the public opinion of the future jury pool.

      I would also say that the White House statement easily falls into the lawyerly rubric of “When you have the law on your side, pound the law. When you have the facts on your side, pound the facts. When you have neither, pound the table.” Trump has neither.

      1. Trump has neither.

        Just the Nuclear Football and a Twitter finger that can trigger a “Second Amendment Solution(TM)” with one tap-and-swipe. “Trump Tweeted It, I Believe It, THAT SETTLES IT!”

      2. I would advise the devil to get a different lawyer.

        First, this is the argument Trump is making, and losing, in the courts already. Second, the bar takes a dim view of attorneys making public arguments that aren’t legally supported and that tend to discredit the legal profession. Those are violations of the Rules of Professional Conduct (or whatever Cipollone’s governing bar calls them – it can vary), and sanctionable. (I would expect attorneys who are dealing with this approach in court will ask for Rule 11 sanctions, including attorneys’ fees. I also would expect they’ll get them.)

        Second, you are mischaracterizing what Cipollone has done. This isn’t an argument over interpretation of evidence. This is a claim that the Constitution doesn’t apply to his client. And that is a legal argument, not a factual one. And it’s a false statement with no support. Cipollone is lying about the law publicly.

        Disciplinary commissions don’t say well, he didn’t say it in court, so it doesn’t mean anything, nothing to see here. They tend to notify the attorney just when and where he is to appear so he can try to justify his actions. And, of course, remind him he has the right to be represented in disciplinary hearings.

        1. The purpose of the letter does matter here though. Clearly it is intended to stir the base into thinking that what congress is doing is unconstitutional. Possibly an ethics violation, but a pretty minor one.

          However, if this letter is the lawyer’s actual response to attempt to avoid congressional supoenas then that would be a whole other level of problems.

          1. No, it really doesn’t. I have seen lawyers grieved for far less. And Cipollone’s position is an aggravating factor.

            He would have a better argument if it was a legal filing. He could then claim he was arguing for a change in the law. It’s not a winning argument, but it’s an argument.

            But given his position, and who he represents, he’s on much thinner ice here.

          2. The purpose of the letter does matter here though. Clearly it is intended to stir the base into thinking that what congress is doing is unconstitutional.
            Some months ago, there was a mention in TIME magazine that Trump’s 2020 strategy is to whip his Base into greater and greater heights of fanaticism, ignore everyone else, and let those Base fanatics do the job. Twitterstorm after Twitterstorm.

            Personally, I think that’s a VERY risky strategy, but there’s always the Twittercall for a Second Amendment Solution if it fails. And the Nuclear Football as the ultimate backup plan.

          3. The purpose of the letter does matter here though. Clearly it is intended to stir the base into thinking that what congress is doing is unconstitutional.
            Some months ago, there was a mention in TIME magazine that Trump’s 2020 strategy is to whip his Base into greater and greater heights of fanaticism, ignore everyone else, and let those Base fanatics do the job. Twitterstorm after Twitterstorm.

            Personally, I think that’s a VERY risky strategy, but there’s always the Twittercall for a Second Amendment Solution if it fails. And the Nuclear Football as the ultimate backup plan.

    4. To play a little devil’s advocate here, Pat Cipollone isn’t making a legal argument. He’s making a political argument. If Congress were to go through the courts *then* he would have to make a legal argument, and that argument might look much different than this letter. It’s no different than, when the police have video evidence of someone committing a crime, their lawyer saying to the press “The video evidence the police have completely exonerates my client.” It seems detached from reality, unless you understand it as just an attempt to sway the public opinion of the future jury pool.

      I would also say that the White House statement easily falls into the lawyerly rubric of “When you have the law on your side, pound the law. When you have the facts on your side, pound the facts. When you have neither, pound the table.” Trump has neither.

  7. Could someone show me where in the constitution it says an impeachment inquiry is like a grand jury, denying the president the basic constitutional rights afforded to every citizen ?

    Warren, where did you get this info ?

      1. Sorry, LMOE, but I don’t see it.
        Could you please elaborate on where it is, because I don’t see where it says a house impeachment inquiry has power similar to a grand jury.

        As our separation of powers dictates, the legislative branch is equal in power to the executive branch and the judicial branch. One is not greater than the other.

        1. That is categorically wrong. By design, Congress is the predominate branch.

          There is nothing – let me repeat that, nothing – in the Constitution, the Federalist Papers, or Madison’s Notes of Debates of the Federal Convention of 1787 that says anything about “coequal” branches.

          It is civics class nonsense. It was not the understanding when the Constitution was drafted or ratified. And a plain reading of the powers of Congress in Article I makes it plain that Congress is the most powerful of the branches. For that matter, “checks and balances” likewise does not appear as a description of the functioning of the three branches of the federal government.

        2. Article 1 does not prescribe or proscribe any particular procedure and thus allows the House wide latitude in conducting an impeachment inquiry.

          Since the Constitution gives the House the right and duty to conduct impeachment, it must be infered that it has the authority to investigate and question individuals as necessary.

        3. Let me get this straight. You want the House to vote to impeach Trump *without* interviewing witnesses or gathering evidence? And this is somehow more fair?

          1. No, the argument is that congress has to have a vote to start an Impeachment INQUIRY, i.e. that congress has to vote to approve the process of interviewing witnesses and gathering evidence. However, the since the constitution only says the house has the power to impeach, it doesn’t specify the process, then the house can decide on its own. While there may be precedent for an impeachment inquiry vote, there is no requirement (i.e. no house rules on the matter).

          2. I know that’s the argument. But what it sounds like Richard is arguing is that an impeachment inquiry doesn’t have “power similar to a grand jury” because it doesn’t specify it specifically in the constitution. If that’s the case, and the House really can’t subpoena anyone or anything, then the only thing they can really do is vote on impeachment. But, he’s obviously a Trump supporter. So, in his effort to discredit the inquiry, he’s basically arguing the House should vote to impeach without gather evidence. Which…..is supposed to help Trump somehow?

            That’s what I’m saying. It doesn’t make any sense. Vote first and ask questions later sounds less fair for Trump and would lead to more politically motivated impeachments in general.

    1. You’re missing the point. If the police investigate you, you have no right to intrude on that. You have no right to subpoena anyone to the grand jury, and you sure as hell have no right to appear in the grand jury or cross examine witnesses. You have no right to look at the files of law enforcement while the investigation is proceeding. The rights you refer to simply don’t exist at this stage.

      What the House is doing is roughly analogous to a grand jury investigation, as Professor Throckmorton says above.

      Most importantly, impeachment is not a criminal proceeding. The rights that seem to concern you don’t apply. Indeed, the Constitution allows the House to proceed as it sees fit. And while there is a “trial” in the Senate, the rules of procedure are up to the Senate, not the president.

      If the president is impeached, he loses his job. He doesn’t go to jail, he isn’t fined, he isn’t “sentenced”. He is fired.

    2. Could someone show me where in the constitution it says an impeachment inquiry is like a grand jury, denying the president the basic constitutional rights afforded to every citizen ?

      100% what Jeff Ryan said. But, also, even if it were true that the president was denied “basic constitutional rights afforded to every citizen”, he is also immune from criminal prosecution while in office *unlike* any other citizen. This makes impeachment the *only* way to remove a president who has allegedly committed crimes and a rather much different situation than any other citizen.

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