Cracks Appear in Trump’s Stonewall

President Trump forbade those in his administration from testifying before the House impeachment inquiry, and a number at first failed to show up, flouting the subpoenas that demanded their presence. But in recent days several have broken ranks to give statements and answer questions in sessions that run nine and ten hours. Republicans are furious for
Republicans stage a stand-in outside the Capitol's
subterranean SCIF

being denied access to the committees' hearings. We'll review their case, but first a quick rundown.

Among the apostates were former ambassador to Ukraine, Marie Yovanovitch; national security official Fiona Hill, a Russia and Europe specialist; the Pentagon's Ukraine expert, Laura Cooper; and Gordon Sondland, a hotelier and million dollar contributor to Trump's inauguration who was rewarded with the ambassadorship to the European Union but who found himself in non-E.U. Ukraine taking instruction from non-government official Rudy Giuliani.

It was William Taylor, though, the current ambassador to Ukraine, armed with the meticulous notes he had kept, who laid out the chronological sequence of meetings, phone calls, and e-mails in his opening statement that left no doubt that funding to aid Ukraine's defense against Russia and an invitation to the White House had been held hostage by Donald Trump, conditioned on Ukraine President Volodymyr Zelenskyy launching investigations into the Bidens and probing the risible conspiracy fable that it was Ukraine that interfered in the 2016 elections, not Russia.

Taylor, a West Point graduate, served for six years as an infantry officer with the 101st Airborne Division in Vietnam, then with NATO and the State Department, and came out of retirement to take the job. Press Secretary Stephanie Grisham's attempt to besmirch that resumé , stupidly calling him one of those "radical unelected bureaucrats waging war on the Constitution", left the White House looking desperate.

Taylor made Trump's extortion a certainty. His act combined the abuse of his power with breaking the law against soliciting election assistance from a foreign source.

That left Republicans with little other than to complain about the impeachment process, calling the secret depositions from which no transcripts have emerged unfair for shutting Republicans out of the SCIF (Sensitive Compartmented Information Facility) three floors under the Capitol building where testimony is taken behind securely closed doors.

But closed meetings are the standard practice. Democrats were quick to cite that the Benghazi investigation which sought to find former Secretary of State Hillary Clinton guilty of malfeasance, held 107 interviews in private over four months before the first public hearing. That was chaired by Trey Gowdy, a Republican representative from South Carolina until this January, whose 2015 interview was widely quoted amid the accusations hurled back and forth for his having said:

"I could just tell you of the 50 some-odd interviews we have done thus far, the vast majority of them have been private and you don't see the bickering among Congress in private interviews. You don't see any of that...The private ones always produce better results."

The final Benghazi report made the same points as well as saying:

" Interviews allow witnesses to be questioned in depth by a highly prepared member or staff person...Interviews also allow the Committee to safeguard the privacy of witnesses who may fear retaliation".

After the damaging testimony by Taylor, Trump tweeted that Republicans should support him more vigorously. Dozens of House Republicans dutifully trooped down the stairs to force entry into the SCIF. Some brought in their cell phones, strictly against rules as a breach of security; some of them then refused to relinquish them.

It was a farcical protest meant for Fox News where viewers were unlikely to be told that standard House rules say that only members of the committee(s) conducting depositions may attend, which of course includes the Republican members of those committees. There are 47 Republicans on the three committees conducting the depositions — Intelligence, Foreign Affairs, and Oversight — all of whom have had access to all of the proceedings.

Just how farcical became apparent when about a dozen of those 47 committee members who could have been inside for the deposition of Pentagon Ukraine expert Laura Cooper were instead spotted outside among the protesters demanding to go in. And a source told Fox News that some members asked to be arrested, citing the optics of being marched out of the SCIF in handcuffs in front of reporters and news cameras.

Republicans don't seem to think there's much with which to counter the evidence pouring forth. The format of these deposition — actually, they are called "interviews" — gives the Democrats an hour to ask questions, then the Republicans have an hour, and the alternation continues for the balance of the session. Yet Eric Swalwell, a Democrat from California on the House intelligence committee who briefly was a candidate for the presidency, says that whereas each session begins with a few dozen Republicans in the room, instead of asking questions in rotation with Democrats, they mostly leave, such that at day's end the ratio of Democrats to Republicans is about 10-to-1. What questions they do ask tend to be "cockamamie conspiracy questions" about 2016 and the DNC server being in Ukraine, Swalwell said. The NewsHour couldn't get any of the committee Republicans to come on the program, showing a wariness of questions on the substance of the charges against the president which they'd be unable to refute.

The overwhelming evidence left Republicans reverting to the outrage of the original letter from the White House that railed against the impeachment inquiry calling it "illegitimate" and "unconstitutional" for having held no vote by the members to authorize it. The eight-page letter to congressional leaders by White House Counsel Pat Cipollone is for Fox News commentator Sean Hannity a "devastating" indictment of the " corrupt, secret, behind closed doors, smoke-filled room Venezuela-style impeachment coup attempt".

It was ridiculed by those on the left for being so improper a legal letter. The White House counsel represents the presidency as institution, but Cipollone stumps for the president himself. "The President has a country to lead. The American people elected him to do this job, and he remains focused on fulfilling his promises to the American people". Cipollone lauds him for economic growth, low unemployment, negotiating trade deals, apparently "fixing our broken immigration system" and even "addressing mass shooting". In a startling and conclusory statement, he decides Trump's call to Zelenskyy was "completely appropriate, that the President did nothing wrong, and that there is no basis for an impeachment inquiry". Furthermore, Zelenskyy "agreed that the call was appropriate". The head of a foreign government decides for us, too. Congress having to issue subpoenas to do its job:

" violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you [Congress] will seek to punish those who exercise fundamental constitutional rights and prerogatives. All of this violates the Constitution, the rule of law, and every past precedent. Never before in our history has the House of Representatives — under the control of either political party — taken the American people down the dangerous path you seem determined to pursue."

But what about his legal claims which now animate the Republican campaign against the impeachment proceedings?

"Your highly partisan and unconstitutional effort" is a recurring argument by Mr. Cipollone. "Unconstitutional" occurs eight times in the letter. That the Constitution’s impeachment provisions are unconstitutional is certainly a novel idea. It becomes apparent that he is referring to parts of the Constitution other than the impeachment provision, principally the House's failure to follow due process.

It is not a strong argument because the Constitution doesn't even give impeachment a complete sentence. All it says is "The House of Representatives … shall have the sole Power of Impeachment". Elsewhere, it lists the misdeeds that qualify for impeachment, and gives the Senate the job of deciding whether to convict on the charges the House has drawn up, but there are no specifics as to how the House is to go about the job. A better argument would have been a muscular bid that, in consideration that the institution of the presidency is on the line, the House should feel duty bound to adopt orderly and publically declared procedures and guidelines to ensure fairness.

Cipollone tells Congress "You have denied the President … the rights guaranteed to all Americans", namely , "the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present", and more. This is the due process that Cipollone contends is being denied the president. If that sounds like a reasonable complaint, it doesn't fit the case. The impeachment inquiry is not a trial. It is like a grand jury. It is the prosecution working through the discovery phase, developing its case. The defense is not yet entitled to know the committees' findings. That happens in the Senate, which conducts the trial. It is there that Mr. Cipollone should insist on getting his due process satisfaction. Unlike the Nixon and Clinton impeachment proceedings, the Trump counterpart has no independent counsel digging up the evidence preliminary to Congress stepping in. This time, the House itself has to develop evidence and only then open public hearings on what they have found. So the White House contention, that "What you have labeled contrary to the Constitution…and all past bipartisan precedent-as an 'impeachment inquiry'" cannot be so called because the House members have not voted to make it so, is premature.

President Trump has said that the White House would cooperate if the House were to vote for the inquiry — provided that the "rules are fair". What rules? The House has simply subpoenaed people to testify and for various offices to provide all pertinent documents. Even if there were to be rules, Ms. Pelosi and fellow Democrats would be leery of taking a vote only to deal with a famously mercurial president who, having gotten the vote he wanted, might demand ever more rules to forestall cooperation. Remember that negotiating whether Trump would be interviewed by the Mueller report — what questions could be asked, whether follow-up questions would be allowed, whether answers could instead be submitted in writing — went on for a year.

Nevertheless, the commotion and accusation of unfairness and secrecy is registering with a public unmindful of Congress' mysterious ways, and the Democrats would do well to hasten issuing transcripts to make its case to the public.

And about those ignored subpoenas? Their resolution relies on the courts that seem oblivious to the gravity of history unfolding; any resolutions will absurdly come only after impeachment proceedings have run their course. The snail pace of the judicial system hands Trump a cynical strategy to exploit. A series running in Newsweek says…

"An administration can shield itself from legitimate requests for information and argue that an investigation is illegitimate because Congress is rushing to judgment without determining the facts — a totally circular claim that attempts to undermine Congress' utmost check on the executive branch."

Needed is a statute that requires expedited handling by the courts of congressional subpoenas of the executive branch. Our notion of checks and balances is mythology without it. What is further needed is the right of Congress to issue a civil suit against the president himself if a Trump-like president ignores a court's verdict. America has come to this.