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Wednesday, October 09, 2019

Mark it on your calendar, tattoo it on your forehead, the constitutional crisis is here

by digby

My Salon column this morning:

The top headline on the New York Times web site last evening was "White House Declares War on Impeachment Inquiry" referring to the astonishing letter produced by the White House Counsel's office yesterday declaring that the impeachment inquiry is invalid because the Democrats are seeking to overturn the 2016 election. Since impeachment by definition is a constitutional process to overturn an election, that contention is embarrassingly daft.

But that's beside the point. This document signals that the White House has decided to formally defy the Congress and challenge its clear constitutional power to check a president who has committed treason, bribery or other high crimes and misdemeanors. They declared that the concept of checks and balances is no longer operative in the US Constitution. In fact, I don't know if we can be sure they think the US Constitution is still operative at all.

As Stephen Colbert put it last night:

It wasn't just the comedians saying so. Here's conservative legal scholar Orin Kerr:


It is a very strange "legal" document that is reminiscent of the amateurish James Comey "firing" memo that former Deputy Attorney General Rod Rosenstein produced for President Trump. It sounds like the president would sound if he could write in semi-intelligible language. The whole thing is basically a Donald Trump rally rant without the nasty nicknames.

It attacks House Intelligence Committee Chairman Adam Schiff (D-Ca) in particular for paraphrasing the famous phone call between Trump and the Ukrainian president during the Intelligence Committee hearing contending bizarrely that it proves the president is innocent of wrongdoing. Trump and his White House Counsel apparently see this banal event as some kind of smoking gun even though anyone who watched the hearing had no confusion about the matter and the "rough transcript" the White House released has been read by far more people than saw that hearing. The president's own words are the problem, not Adam Schiff's.

By way of "legal" defenses they offer up the decision by the DOJ that Trump didn't commit a campaign finance violation which is certainly disputable not to mention irrelevant. They also fatuously assert that because Ukrainian President Vlodymyr Zelensky, looking like a frightened man in a hostage video, said Trump didn't "pressure" him, the case is closed.

These "factual" rebuttals to the impeachment inquiry and they bear a striking resemblance to Trump's twitter tantrums of the past few days. Indeed, it's fairly obvious that Trump himself dictated the content of the letter. Certainly, the arguments that impeachment is "illegal" because the congress is attempting to overturn an election could not have been drafted by an attorney who plans to practice law after his or her stint in the White House is over. One can assume that is White House Counsel Pat Cippoline, who signed this vacuous document with a flourish.

If the White House argument was shrill and inelegant President Trump's over-caffeinated lawyer Joe diGenova, appearing on Laura Ingraham's show on Tuesday night made it sound downright genteel by comparison:
JOE DIGENOVA: What you're seeing is regicide, this is regicide, by another name, fake impeachment. We get first one anonymous informant, then a second anonymous informant, I refuse to call them whistle-blowers. These two nonentities are suicide bombers that the Democrats have unleashed on the democratic process... It's pretty obvious that this first suicide bomber who sent that complaint to the inspector general was a paid Democratic operative of the Democratic Party.

He said more than he meant to say there. Donald Trump does believe he is a king. Here's something he tweeted just last week:

Surely it's a coincidence that he has only seen fit to exercise this "absolute right" in pursuit of his political enemies.

It seems his accomplices in the White House, the Department of Justice and Congressional Republicans are prepared to defend this position. The DOJ decided that a sitting president can't be indicted because the Constitution specifically orders a political process for presidential misconduct. That was the reason the Mueller Report did not file obstruction of justice charges against the president despite massive evidence of his crimes. Now the White House Counsel has declared that this alternative process is illegitimate because it is political and therefore the American people must make the final decision in the next election. Of course, the president is accused of attempting to sabotage the next election, which is a truly awe-inspiring Catch-22.

The Republicans in Congress seem to be coming around to the idea that they can beat this by pretending that the Democrats are breaking some non-existent rule even as the White House has decided that the constitution is no longer in force. Senate Majority Leader Mitch McConnell lugubriously announced:
So far, the House has fallen far short by failing to follow the same basic procedures that it has followed for every other President in our history.
As if McConnell is some kind of a stickler for procedure. (*cough Merrick Garland cough*) There have only been three previous presidential impeachments and in the first of them in 1868  "the House voted to impeach before even deciding what articles would be the basis for it." So the idea that there are precedents that the House is failing to properly follow is absurd.

As of now, the official GOP talking point is that the process is unfair which, again, sounds as if it came from Donald Trump's twitter feed. No five-year-old whines and cries as much about "unfairness" as the President of the United States. Unfortunately, at least some of the punditry is prepared to agree, suggesting that the Democrats need to capitulate to the president's demands lest the public turn on them.  Unfortunately, the only thing the White House will agree to is for the Democrats to abandon their inquiry:

The question before us now is whether the courts will back this imperial view of the presidency and if they don't, whether or not Trump will adhere to their rulings. They have more or less respected judicial actions up until now. But that was before they "declared war"  --- a war which  Trump and his henchmen are clearly determined to win by any means necessary.