What To Do When You Haven’t Got the Law or the Facts

While reading White House counsel Pat Cipollone’s October 8 letter informing House leadership that “President Trump and his Administration cannot participate in your partisan and unconstitutional [impeachment] inquiry,” I was reminded of the tried-and-true legal maxim that when you have the law, argue the law, when you have the facts, argue the facts, and when you’ve got neither the law nor the facts, bullshit the best you can.

In his eight-page, single-spaced letter, Mr. Cipollone cites only three legal precedents, one of which has been partially overturned. He cites both Watkins v. United States (1957) and Quinn v. United States (1955) in support of his argument that “the Supreme Court has recognized that due process protections apply to all congressional investigations.” First, I’m not sure Cipollone recognizes the irony of those cites: both cases reverse punitive acts by the House Un-American Activities Committee, which persecuted left-leaning citizens just as Joseph McCarthy and Roy Cohn, Trump’s mentor, did in the Senate. Second, in both cases the plaintiffs did participate in the congressional inquiry, but were criminally prosecuted for refusing to answer specific questions. In Watkins, the plaintiff refused to provide hearsay testimony; in Quinn, the plaintiff invoked the Fifth Amendment when asked whether he was a Communist. The Supreme Court sided with the plaintiffs on those grounds only, which to me means the cases cannot be used to avoid answering all questions, let alone to pre-emptively refuse participation in a congressional inquiry.

The third citation is to the partially-overturned Hastings v. United States (1992) in support of the idea that “the Due Process Clause applies to impeachment proceedings.” I would think a similar rebuttal applies: as with the plaintiffs in Watkins and Quinn, you can claim a due process violation, but only after you’ve testified and been denied liberty or property for refusing to answer legally improper questions.

There isn’t much factual argument in Cipollone’s letter, either. Instead, he makes what are known in the trade as conclusory statements, i.e. assertions unsupported by evidence. A prime example will likely serve as Trump’s number one talking point as the impeachment process proceeds: “You seek to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen.” To the extent Cipollone bothers to support such assertions, he selectively cites newspaper articles, press releases, and the like — in this instance, Democratic Congressperson Al Green’s statement during an MSNBC interview in May that “if we don’t impeach the President, he will get reelected.”

So, if Cipollone’s letter is light on law and fact, what’s left? Yup.

And the best strategy when your legal adversary has neither the law nor the facts is to calmly but firmly press your case.

To be fair, I am neither an attorney nor a legal scholar. It’s possible my analysis of Cipollone’s letter is wrong, proof that a little knowledge can be dangerous. That said, I spent the better part of two decades learning from some of the best Constitutional lawyers in Northern California, chief among them Christopher Patti. And Gregg Nunziata, a Republican attorney who worked for Senator Marco Rubio and helped shepherd the Supreme Court appointments of John Roberts and Samuel Alito, characterized the letter as “bananas . . . a barely-lawyered temper tantrum.” So my guess is I’m largely correct. If that’s the case, expect the House Democrats to forge on, Cipollone to continue pressing his bad arguments until they collapse, and Snowflake-in-Chief Trump to whine that he hasn’t done a thing wrong and impeachment is the Democrats’ underhanded way of overturning the will of the people.

By the way, a quick update on the will of the people: as of today, Fivethirtyeight.com (Nate Silver’s site) finds 48.8% in favor of proceeding with the impeachment inquiry and 43.6% opposed, with the trend moving toward proceeding with the inquiry.

Trump’s ethical guiding light.

Former Risk Manager at UC Berkeley, author of four books, ectomorphic introvert.

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