President Trump has placed a heavy shroud of silence over the executive branch.
Under his orders, no witnesses from the State Department, the Defense Department, the Energy Department, the Department of Justice, the White House or any other executive agency will be allowed to testify under oath to Congress. It’s all shut down.
Likewise, no documents, no memos, no email or text-message exchanges will be made available to Congress as it considers impeachment.
That’s an odd thing to do if you’re innocent.
If you’re innocent, why would you keep all the copious evidence of your innocence locked away from Congress and the world? Why would you tell eyewitnesses to your innocence that they can’t utter a word about it? Why would federal judges feel it necessary to order you not to destroy evidence of this innocence?
The most obvious explanation is that you in fact are not innocent. The most obvious explanation is that you realize that your only hope of retaining office and any degree of public support is to hide as much evidence of your wrongdoing as possible, for as long as possible, using every desperate measure at your command.
In a letter to Congress this week, White House lawyers did just that.
“There is no basis for your inquiry,” those lawyers told Congress, condemning the investigation as “partisan and unconstitutional,” “constitutionally invalid,” “an unconstitutional exercise in political theater” and “illegitimate.”
Writing about a controversial phone call with the Ukrainian president, they claim that a rough transcript of that call proves it “was completely appropriate, that the President did nothing wrong, and that there is no basis for an impeachment inquiry.”
This would be the phone call in which the Ukrainian president begs Trump for permission to buy U.S.-made Javelin anti-tank missiles, which he needs to protect his country from Russian invasion. The very next words out of Trump’s mouth are fateful:
“I would like you to do us a favor though….”
As Trump explains, that favor involves two investigations. First, he demands that Ukraine announce an investigation into a cockamamie far-right claim that it was Ukraine itself, not Russia, that hacked Democratic emails in the 2016 elections, and that Ukraine did so to help Democrats. Then, Trump says he also wants an investigation of Joe Biden, who is beating Trump by double-digits in most head-to-head polling.
A U.S. president, pressuring a vulnerable ally to investigate a political enemy, is a clearly impeachable act, and in subsequent comments to the press, Trump has repeatedly admitted to and even bragged about his crime. The evidence and testimony that he seeks to bar from Congress would only confirm that conclusion.
For the moment, though, we should focus on the fact that the president and his lawyers don’t get to decide whether there is a legitimate basis to an impeachment inquiry. Article 1, Section 2 of the U.S. Constitution puts it clearly:
“The House of Representatives … shall have the sole power of impeachment.”
There is no language anywhere giving the president a veto over his own impeachment, no provision allowing him to declare his impeachment “illegitimate.” In other settings, Trump and his lawyers have also claimed that as president, he cannot be indicted or even investigated, and that this immunity to investigation extends to his companies, to his family, even to his associates.
In the weeks to come, the House will almost certainly vote to impeach Trump, and among the articles of impeachment it will send to the Senate for trial will be an article explaining that Trump’s king-like refusal to allow any testimony before Congress or release any requested documents amounts to obstruction of justice.
If the Republican-led Senate rejects that particular article, if it decides that this extraordinary refusal to produce legally sought evidence is acceptable, then at that moment the very concept of congressional oversight as a check on the executive will die. If Congress cannot force the executive branch to honor its subpoenas, then our system of checks and balances is destroyed and all future presidents, Democrat and Republican, will be free to tell Congress to go to hell.
We are, in other words, in a full-blown constitutional crisis.
Veteran journalist Jay Bookman is a columnist with the Georgia Recorder, where this essay first ran.