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President Trump's Legal Team Presents Their Defense. Aired 4- 4:30p ET

Aired January 27, 2020 - 16:00   ET


[16:00:00] PHILBIN: -- The district court rejected the immunity, but immediately on appeal, the Court of Appeals for the D.C. Circuit stayed that decision.

And that decision means -- to stay that district court decision, that the appellate court thought there was a likelihood of success on appeal, that the executive branch might succeed or, at a minimum, that the issue of immunity presented questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation.

So the first decision was stayed. The second district court decision is still being litigated right now. It's the McGahn case that the House has brought, trying to get testimony from former counsel to President Trump, Donald McGahn.

And that case was just argued in the D.C. Circuit on January 3rd, so there is no established law suggesting that this immunity somehow has been rejected by the courts. It's still being litigated right now. And it is an immunity that is a standard principle asserted by every administration of both parties for the past 40 years. Asserting that principle can't be treated as obstruction of Congress.

The third action that the president took -- that the administration took related to the fact that House Democrats' subpoenas tried to shut out executive branch counsel, agency counsel from the depositions of executive branch employees.

Now, the Office of Legal Counsel concluded the congressional committees may not bar agency counsel from assisting an executive branch witness without contravening the legitimate prerogatives of the executive branch. And that attempting to enforce a subpoena while barring agency counsel, quote, "would be unconstitutional," unquote.

The president relied on that legal advice here. As Judge Starr pointed out, the president was consulting with the Department of Justice, receiving advice from the very respected Office of Legal Counsel and following that advice about the constitutional prerogatives of his office and the constitutional prerogatives of the executive branch.

Again, administrations of both political parties have recognized the important role that agency counsel plays. In the Obama administration, the Office of Legal Counsel stated that exclusion of agency counsel, quote, "could potentially undermine the president's constitutional authority to consider and assert executive privilege where appropriate."

So why is agency counsel important? As I tried to explain, the executive privilege of confidentiality for communications with the president for internal deliberative communications of the executive branch, those are important legal rights. They're necessary for the proper functioning of the executive branch.

And agency counsel is essential to protect those legal rights. When an individual employee goes in to testify, he or she might not know -- probably would not know -- where is the line for what's covered by executive privilege or deliberative process privilege? Not things that employees necessarily know.

And their personal counsel, even if they're permitted to have their personal counsel with them, same thing. Most attorneys for personal -- for employees don't know the finer points of executive branch confidentiality interests, of deliberative process privilege.

And it's also not their job to protect those interests. They're the personal lawyer for the employee who's testifying, trying to protect that employee from potential legal consequences.

We usually have lawyers to protect legal rights, so it makes sense, when there is an important legal and constitutionally based right at stake -- the executive privilege -- that there should be a lawyer there to protect that right for the executive branch, and that's the principle that the Office of Legal Counsel endorsed.

This also doesn't raise any insurmountable problems for congressional investigations or finding information. In fact, just as recently as April 2019, the House Committee on Oversight and Government Reform reached an accommodation with the Trump administration, after that administration had declined to make someone available for a deposition because of the lack of agency counsel. And that issue was worked out, an accommodation was made and there was some testimony provided in other circumstances.

So it doesn't always result in the kind of escalation that was seen here, straight to impeachment. The accommodation process can work things out.


House Democrats have pointed to a House rule that excludes agency counsel. But of course, that House rule cannot override a constitutional privilege.

So those are the three principles that the Trump administration asserted. Now, I'd like to turn to the claim that, somehow, this assertion of these principles created an impeachable offense.

The idea that asserting defenses and immunities -- legal defenses and immunities -- in response to subpoenas, acting on advice of the Department of Justice, is an impeachable offense, is absurd. And it is dangerous for our government. Let me explain why. House Democrats' obstruction theory is wrong, first and foremost, because in a government of laws, asserting privileges and rights to resist compulsion is not obstruction, it's a fundamental right.

In Bordenkircher v. Hayes, the Supreme Court explained, to punish a person because he has done what the law plainly allows him to do, is a due process violation of the most basic sort. And for an agent of the state to pursue a course of action whose objective is to penalize a person's reliance on his legal rights, is patently unconstitutional.

This is a principle that in the past -- in the Clinton impeachment -- was recognized across the board, that it would be improper to suggest that asserting rights is an impeachable offense.

Harvard Law Professor Laurence Tribe said, quote, "The allegations that invoking privileges and otherwise in using the judicial system to shield information is an abuse of power that should lead to impeachment and removal from office is not only frivolous but also dangerous." And Manager Nadler then said that the use of a legal privilege is not illegal or impeachable by itself -- a legal privilege, executive privilege.

PHILBIN: And Minority Leader Schumer, in the Clinton impeachment, expressed the same view.


SCHUMER: To suggest that any subject of an investigation, much less the president with obligations to the Institution of the Presidency is abusing power and interfering with an investigation by making legitimate legal claims using due process and asserting constitution rights is beyond serious consideration.


PHILBIN: And that was exactly correct then, and it's exactly correct now. Now, more important than simply the principle that asserting rights can't be considered obstruction, when the rights the president is asserting are based on executive privilege, when they are constitutionally grounded principles that are essential for the separation of powers and protecting the institution of the Office of the Presidency, to call that obstruction is to turn the Constitution on its head. Defending the separation of powers cannot be deemed an impeachable offense without destroying the Constitution.

Accepting that approach would do permanent damage to the separation of powers, and it would allow the House of Representatives to turn any disagreement with the Executive over informational demands into a supposed basis for removing the president from office. It would effectively create for us the very parliamentary system that the framers sought to avoid because by making any demand for information and goading the Executive to a refusal and treating that then as impeachable, the House would effectively be able to function with a no confidence vote power (ph). Now, that is not the framers' design. The Legislative and Executive Branches frequently clash on questions of constitutional interpretation, including about congressional demands for information. These conflicts have happened since the founding. In 1796, George Washington, the first president, resisted demands from Congress for information about the negotiation of the Jay Treaty, and there have been conflicts between the Executive and the Congress in virtually every administration since then about congressional demands for information.

The founding fathers expected the branches to have these conflicts. James Madison pointed out that the Legislative, Executive, and Judicial Departments must in the exercise of their functions be guided by the text of the Constitution according to its own interpretation of it -- each according to its own interpretation of it. It was recognized that there would be friction.

Similarly in Federalist 51, Madison pointed out that the great security against a gradual concentration of the several powers in the same department consist in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others. This is checks and balances. This friction is clashing between the branches. It is not evidence of an impeachable offense. It's the separation of powers in its practical operation. It's part of the constitutional design.

Now, the proper and historically accepted way that these disagreements have been resolved is through the constitutionally-mandated accommodations process. Courts have explained that the branches are required to engage in an accommodations process to resolve disagreements where there's a clash over a demand for information.

As the D.C. Circuit has explained when Congress asks for information from the Executive Branch that triggers, quote, "an implicit constitutional mandate to seek optimal accommodation of the needs of the conflicting branches," end quote, the goal is to accommodate the needs of both branches to reach a compromise.

If that accommodation process fails, Congress has other tools at its disposal to address a disagreement. The House traditionally has proceeding to contempt to a vote on a contempt resolution. In recent times, the House has taken the position that it may sue in the courts to determine the validity of its subpoenas and secure an injunction to enforce them.

Now, the House Managers have pointed out that the Trump administration, when it was sued in the began case -- other cases (ph), taken the view that those cases are not judicable in Article III courts. That is correct. That is the view of the Trump administration. That was the view of the Obama administration.

And so, there is that resistance in the court cases to the jurisdiction of the courts to address those, but I think House Managers are missing the point when they identify that position that the administration has taken because the House cannot claim that they have a mechanism for going to court. They're in court right now asserting that mechanism in the McGahn case and then simultaneously claim that while they don't have to bother with that mechanism, they can jump straight to impeachment.

Impeachment under the Constitution is the thermonuclear weapon of inter-branch friction, and where there is something like a rifle or a bazooka at the House's disposal to address some friction with the Executive Branch, that is the next step. It is incrementalism in the Constitution, not jumping straight to impeachment that is the solution.

If the House could jump straight to impeachment, that would alter the relationship between the branches. It would suggest that the House could make itself superior over the Executive. Dangle the threat of impeachment over any demand for information made to the Executive, that's contrary to the framers' plan.

Madison explained that where the Executive and the Legislative Branches come into conflict -- this is in Federalist 49 -- said, quote, "Neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respected powers," end quote. But that is exactly what the House Managers have asserted in this case. They have said that the House becomes supreme, there's no need for them to go to court, the Executive must be wrong, any resistance to their subpoena is obstruction, if you claim that our subpoena is invalid we don't have to do anything to address that concern, we will just impeach you because resistance is obstruction of Congress.

And the House committee even put it this way in their report -- the Judiciary Committee. They said that the House itself -- they effectively have said that the House is the judge of its own powers because what they said was, quote, "The Constitution give the House the final word," end quote. That's on page 154 of the House Judiciary Committee report.

And what that is essentially saying, they point to the fact that Article I, Section 2 gives the House the sole power of impeachment, and they claim that because it's the sole power of impeachment, the courts have no role. The House is the final word. It's the judge of its own powers, but that's contrary to the constitutional design. There is no power that is unchecked in the Constitution. The sole power of impeachment given to the House simply means that that power is given solely to the House, not anywhere else. The Constitution does not say that the power of impeachment is the paramount power that makes all other constitutional rights and privileges and prerogatives of the other branches fall away.


The framers recognized that there could be partisan impeachments.

There could be impeachments for the wrong reasons. And they did not strip the Executive Branch of any of its means for protecting its own sphere of authority, its own prerogatives under the Constitution.

Those principles of executive privilege, those immunities still survive, even in the context of impeachment. The power of impeachment is not like the House can simply flip a switch and say now we're in impeachment and they have constitutional kryptonite that makes the powers of the executive eliminated.

So when there are these conflicts, even in the context of impeachment inquiry, the executive can continue to assert its privileges and prerogatives under the Constitution and indeed it must in order to protect the institutional interest of the office of the presidency and to preserve the proper balance between the branches under the Constitution.

Professor Turley rightly pointed out that by claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts, House Democrats were advancing a position that was quote, entirely unattainable (ph) and abusive of an impeachment, end quote.

Other scholars agree. In the Clinton impeachment, Professor Susan Low Bloch testified that, quote, impeaching a president for invoking lawful privileges is a dangerous and ominous precedent, end quote.

It would achieve exactly the result Governor Morris, one of the framers, warned against at the Constitutional Convention. He explained that quote, when we make him, referring to the president, amenable to justice however; we should take care to provide some mode that will not make him dependent on the legislature, end quote.

That is exactly what this Article of Impeachment would do. It would make the president dependent on the legislature because any demand for information made by Congress could be used as the (ph) threat of impeachment to enforce compliance by the executive.

And the very theory that the House Democrats have asserted is that there can be no assertions of privileges, no constitutionally based prerogatives of the executive to stand in the way.

If that theory were true, virtually every president could have been impeached. Virtually every president has asserted at one time or another these constitution prerogatives. President Obama in the Fast and Furious investigation refused to turn over documents that led to his attorney general being held in contempt. But that didn't lead to impeachment.

And there could be a long list, Professor Turley testified there'd be a very long list of presidents who would have to be distinguished in the principles being asserted now in this case were applied to all past presidents in history.

Now the House Democrats have given a few different justifications for this approach but I would submit none can be reconciled with the Constitution. They say that if we cannot impeach the president for this obstruction then the president is above the law.

Not so. As I think I've pointed out, the president is staying within the law, asserting the law. Relying on the legal advice from the Department of Justice to make his arguments based on long recognized Constitutional principles and indeed is making the fundamental point with respect to the subpoenas that it is Congress that is not above the law.

It's the House -- the House has to follow the law as well. It has to issue valid subpoenas. And if the law isn't followed those subpoenas are null and void and the executive doesn't have to comply with them.

The House Democrats say that they shouldn't go to the courts because the courts have no role in impeachment. I think I've pointed out that the House Democrats can't say that they have the -- just because of the provision of the sole power of impeachment that it's the paramount power and that no other branch plays any role in providing a check on how that power is exercised.

And in addition, the House Democrats have gone to court. In the McGahn case that they're litigating right now, they have asserted that that is part of the impeachment inquiry. The Trump administration has explained that it was not validly part of the impeachment inquiry but that is the ground on which they are litigating that.


They say that they have no time for the courts. I think what that really means is they have no time for the rule of law and the way that they're pursuing the inquiry. The other day one of the House managers actually said on the floor of the Senate that they had to get moving.

They couldn't wait for litigation because they had to impeach the president before the election. That's not a valid reason to not pursue litigation in the courts. And I think it's relevant to bear in mind, what sort of delay are we talking about.

In the McGahn case that the House managers referred to a number of times, which they had pointed out -- they presented as being very long and drawn out, they issued a subpoena in April but they did not file a lawsuit until August.

By November -- November 25th, they had a decision from the district court and it was argued on appeal on the D.C. circuit in January 3rd. For litigation that's pretty fast and it can go faster.

In the Nixon case during Watergate, the special prosecutor issued a subpoena on April 18, 1974. On May 20th -- so in less than a month, the district court denied a motion to quash the subpoena.

On May 31st, the Supreme Court agreed to hear the case, granting (inaudible) before judgment in the Court of Appeals. And on July 24th, the Supreme Court issued a decision. That's lightening fast.

So when the -- there is urgency to the case, when there is a reason for it, there can be expedition in the courts and a decision can be had in a timely manner. And the one case that actually arose from these impeachment proceedings, it was the House that derailed the case. This was the case involving Deputy National Security Advisor Charlie Kupperman.

Because when he received a subpoena he went to court and asked the court for a declaratory judgment explaining what his obligations were. Should he take the directive from the president that he was immune and not go or should he obey the subpoena.

Now in that case he filed suit on October 25th. The court within a few days set an expedited briefing schedule but the House withdrew the subpoena on November 5th, just 11 days later in order to mover (ph) the case.

So I think litigation is a viable avenue a long with the accommodation process is a first step. Then if the House leaves it, it can go to court and wants to litigate the jurisdiction and litigate the validity that subpoenas that's also available to them.

But impeachment as the first step doesn't make any sense. And I should point out in part when the House managers say they didn't have time to litigate, they didn't have time to go to the courts but they now come to this chamber and say this chamber should issue some more subpoenas.

This chamber should get some witnesses that we didn't bother to fight about. What -- what do you think will happen then. That there won't be similar assertions of privilege and immunity. That there wouldn't be litigation about that?

Again, this goes back to the point that I made. If you put your imprimatur on a process that was broken and say, yes, that was a great way to run things, this was a great package to bring here and we'll clean up the mess -- and issue subpoenas and try to do all the work that wasn't done -- then that becomes the new normal. And that doesn't make sense for this body.

The proper way to have things handled is to have the House, if it wants to bring an impeachment here, ready for trial, it has to do the investigation. The information it wants to get, if there's going to be resistance, that has to be resolved and it has to be ready to proceed, not transfer the responsibility to this chamber to do the work that hasn't been done.

They also assert that President Trump's assertion of these privileges is somehow different because it's unprecedented and it's categorical. Well, it's unprecedented, perhaps, in the sense that there was a broad statement that a lot of subpoenas wouldn't be complied with.

But that's because it was unprecedented for the House to begin these proceedings without voting to authorize the committee to issue the subpoenas. That was the first unprecedented step, that's what had never happened before in history. So of course the response to that would be, in some sense, unprecedented. And the president simply pointed out that without that vote, there were no valid subpoenas.


And there have also been categorical refusals in the past. President Truman, when the House Committee on Un-American Activities in 1948 issued subpoenas to his administration, issued a directive to the entire executive branch, that any subpoena or demand or request for information, reports or files of the nature described in those subpoenas, shall be respectfully declined on the basis of this directive.

And he referred all such inquiries to the Office of the President for such response as the president may determine to be in the public interest. And the Truman administration responded to none of them.

A last point on the House Democrat's claim that the privileges simply disappear because this is the impeachment power of the House. They have referred, a number of times, to the United States v. Nixon, the Supreme Court decision, suggesting that that somehow determined that when you're in an impeachment inquiry, executive privilege falls away.

Well, that's not true. In fact, United States v. Nixon was not even actually addressing a congressional subpoena, it was a subpoena from the special prosecutor. And even in that context, the court did not say that executive privilege simply disappears.

Instead, the court said, quote, "It is necessary to resolve these competing interests" -- they're the interest of the judicial branch in administering a criminal prosecution in a case where the evidence was needed -- "these competing interests in a manner that preserves the essential functions of each branch."

And it even held out the possibility that in the field of foreign relations and national security, there might be something approaching an absolute executive privilege. That's exactly the field that we're in in this case, foreign relations and national security matters.

Another thing that you've heard is that President Clinton voluntarily cooperated with the investigation that led to his impeachment, produced tens of thousands of documents. But that's not really accurate, that was only after long litigation again and again about assertions of privilege. He asserted numerous privileges.

The House Judiciary Committee then explained, quote, "During the Lewinsky investigation, President Clinton abused his power through repeated frivolous assertions of executive privilege by at least five of his aides," end quote. Unlike the House in this case, Independent Counsel Starr first negotiated with the White House and then litigated those claims and got them resolved.

Ultimately, the House managers argue that all of the problems with their obstruction theory should be brushed aside and the president's assertions of immunities and defenses have to be treated as something nefarious because, as Mr. Nadler put it, "only guilty people try to hide the evidence." That's what he said, last Tuesday night.

And Mr. Schiff similarly said, in discussing the assertion of the executive branch's constitutional rights, that, quote, "The innocent do not act this way," end quote.

Really? Is that the principle in the United States of America, that if you assert legal privileges or rights, that means you're guilty, that the innocent don't assert their rights, that the president can't defend the constitutional prerogatives of his office? That doesn't make any sense.

At bottom, the second article of impeachment comes down to a dispute over a legal issue relating to the constitutional limits on the ability of the House to compel information from the executive. No matter how House Democrats try to dress up their charges, a difference of legal opinion does not rise to the level of impeachment.

Until now, the House has repeatedly rejected attempts to impeach presidents based on legal disputes over assertions of privilege. As Judge Starr pointed out, in the Clinton proceeding, the House Judiciary Committee concluded that the president had improperly exercised executive privilege, yet still concluded that it did not have the ability to second-guess the rationale behind the president or what was in his mind, asserting executive privilege, and that it could not treat that as an impeachable offense. It rejected an article of impeachment based on Clinton's assertions of privilege.

And as the House Democrats' own witness, Professor Gerhardt, has explained, in 1943, President Tyler similarly was investigated for a potential impeachment. His attempts to protect and assert what he regarded as the prerogatives of his office -- because he had resisted demands for information from Congress -- Professor Gerhardt explained that Tyler's attempts to protect and assert what he regarded as the prerogatives of his office were a function of his constitutional and policy judgments -