History does not repeat, but it rhymes (according to a maxim sometimes but apparently falsely attributed to Mark Twain). Richard Nixon came to national prominence as an anti-communist who worked in tandem with Joseph McCarthy and Roy Cohn, the latter of whom was later an aide to Nixon. The careers of all three men ended in well-deserved disgrace, but meanwhile Cohn acted as a mentor to Donald Trump, who was, in this regard if not others, an excellent student. Trump now follows the path of Nixon and Bill Clinton as the third President in less than half a century to face a serious impeachment threat.
Where the impeachment inquiry now underway in the House of Representatives will ultimately end remains uncertain, but it begins with a confrontation over the scope of congressional power. In a bellicose letter to House leadership last week, White House Counsel Pat A. Cipollone deemed the inquiry illegitimate and declared the administration’s intention not to participate in it. Numerous commentators (including yours truly on my blog) have criticized Cipollone’s letter as poorly grounded in law.
Cipollone’s constitutional objection to the procedures the House intends to use runs squarely contrary to a Supreme Court ruling in the case of Nixon v. United States. And Cipollone’s proposed solution—refusal to cooperate—runs counter to the thrust of United States v. Nixon.
No, that wasn’t a typo. Nixon v. United States was a 1993 case involving Judge Walter Nixon. United States v. Nixon was a 1974 case involving President Nixon. If followed faithfully, together the Nixon precedents should doom Trump’s strategy to fight impeachment.
House Discretion Regarding Impeachment Procedures
Let us start with the less infamous Nixon. He was found guilty of making false statements to a grand jury but refused to resign his federal judgeship, so the House of Representatives impeached him, and the Senate voted to remove him. Nixon claimed the Senate vote was invalid because his chief opportunity to present evidence and challenge the evidence against him was in the Senate Judiciary Committee, not before the full Senate. The case reached the Supreme Court, which unanimously ruled against Nixon. In his majority opinion, Chief Justice William Rehnquist concluded that by vesting “the sole Power to try all Impeachments” in the Senate, the Constitution precluded judicial review of impeachment trials. Nixon’s case, the majority said, presented a nonjusticiable political question.
That ruling has obvious implications for the current House impeachment inquiry. The Constitution vests in the House of Representatives “the sole Power of Impeachment.” If the parallel provision regarding Senate impeachment trials precludes judicial review—as the Judge Nixon case squarely holds it does—then likewise the clause regarding the House also precludes judicial review. Thus there is no judicially enforceable law restricting the procedures that the House may use in conducting an impeachment investigation. Insofar as the Cipollone letter and a Trump tweet threaten appeals to the courts regarding the substance or procedure of the House impeachment inquiry, they are empty bluster.
To be sure, a constitutional provision might not be enforceable in court, but it nonetheless binds conscientious political actors. Is it possible to construe the Cipollone letter as appealing to members of the House of Representatives to fashion fair procedures in the exercise of their judicially unenforceable but nonetheless real constitutional duty?
Not really. Cipollone did not ask the House to do what he thinks is its constitutional duty in its own unreviewable discretion. Rather, he announced that the White House will refuse to comply with House subpoenas if the House uses procedures that the President deems unfair. Put differently, the Cipollone letter rests on the remarkable proposition that while impeachment proceedings are not subject to judicial review for compliance with any constitutional standard, they are subject to presidential review.
Yet that contention makes no sense. In Judge Nixon’s case, the Supreme Court rejected judicial review of impeachment of a judge partly because impeachment acts as a check on the judiciary. Similarly, impeachment of a President acts as a check on the President. No reasonable constitution writer would say that judges cannot review the decisions of a house of Congress regarding judicial impeachment but the President—the very party meant to be checked by presidential impeachment—can effectively dictate how his own impeachment proceeds.
In any event, even if one were to read Cipollone’s letter as a belligerent appeal to the conscience of House members, it fails on its own terms. To see why, consider a subtle disagreement in Judge Nixon’s case. Although the result was unanimous, two justices—Byron White and Harry Blackmun—thought that Nixon’s case was reviewable but ruled against Nixon on the merits because they read the Impeachments Clause as vesting broad (though not unreviewable) discretion in Congress. To similar effect, Justice David Souter thought that in an extreme case—for example, if the Senate decided whether to remove a President whom the House had impeached by tossing a coin—a court could invalidate the result.
Let us assume that the justices comprising the majority in Judge Nixon’s case would approve of that conclusion if formulated as a standard to be applied by Congress itself. Even if so, its very extremity would show that Congress has very broad discretion. We know from the concurrences in Judge Nixon’s case that existing Senate rules satisfy whatever due process rights a President has in an impeachment trial. And given that any impeachment by the House will be followed by a trial in the Senate that satisfies due process, it follows that existing House procedures satisfy due process as well.
In my blog post last week, I suggested that the House has prudential reasons not to describe impeachment as analogous to indictment by a grand jury—a proceeding at which the accused has no right to cross-examine witnesses or present evidence. But those are only prudential reasons. So far as the Constitution is concerned, the House can use an extremely wide range of procedures and justify doing so on various grounds, including by analogy to a grand jury. Judge Nixon’s case dooms the objections in the Cipollone letter, even if construed as an appeal to the House members’ conscience.
Does President Nixon’s Case Apply to Congressional Subpoenas?
The White House effort to stonewall Congress has been and will likely continue to be unsuccessful. On Monday, Trump’s former Russia expert Fiona Hill testified before a closed-door session; former ambassador to the European Union Gordon Sondland will testify tomorrow despite administration objections; more broadly, the House leadership and witnesses who were alarmed by the President’s Ukraine machinations have called the White House’s bluff. Civic-minded present and former government officials are cooperating with the House inquiry despite Cipollone’s objections.
Moreover, to the extent that the White House may succeed in preventing any particular witness from cooperating with the House, that action strengthens the case for impeachment. House Speaker Nancy Pelosi has announced that she will treat such stonewalling as a form of obstruction and thus itself grounds for impeachment. In so stating, Pelosi follows in the footsteps of the House Judiciary Committee that approved impeachment of President Nixon. Article 3 of its list of Nixon’s high crimes and misdemeanors charged him with refusing, “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee.”
Does Trump have a lawful basis for refusing to cooperate? The short answer is no. In President Nixon’s case, the Supreme Court accepted that a President’s conversations are protected by executive privilege but rejected the notion that such a privilege is absolute. Absent a particularized showing of “military, diplomatic, or sensitive national security secrets,” the interest in confidentiality must yield in “a confrontation with other values.”
In President Nixon’s Supreme Court case, the countervailing interest was a criminal prosecution. Some of Trump’s defenders argue that the precedent therefore does not apply to congressional subpoenas. Yet that distinction should be irrelevant. After all, the very criminal prosecution at issue in the Nixon case was brought by the Watergate special prosecutor and thus intimately connected to the impeachment inquiry in the House.
A decision of the U.S. Court of Appeals for the D.C. Circuit last week confirms that there is no real difference between a congressional subpoena and a judicial one. The court in Trump v. Mazars ruled that the President must comply with a congressional subpoena. The opinion relied on President Nixon’s case before the Supreme Court but also on a related case from the D.C. Circuit. Senate Select Committee v. Nixon was decided just two months before the Supreme Court’s decision in the Nixon tapes case, and it rested on exactly the same rationale: in response to either a judicial or a congressional subpoena, the President has an executive privilege, but that privilege can be overcome by a showing of legitimate need. (The court in Senate Select found that particular materials sought were duplicative and thus not needed but unmistakably indicated that a mere presidential refusal to cooperate would be unlawful.)
Accordingly, under current law Trump cannot simply refuse to comply with congressional subpoenas. Is it possible that five Supreme Court justices will change that law? Sure. Dissenting in the Mazars case last week, Judge Neomi Rao read the precedents governing congressional power to gather information for potential legislation extremely narrowly. One can imagine a similar move to narrow congressional investigatory power in the impeachment context coming from the current Supreme Court.
However, as we have seen, even if Trump somehow succeeds in the courts, he is already losing in the House, as current and former members of his administration turn on him. History, it seems, does indeed rhyme, and in this context “Trump” rhymes with “Nixon.”