Opinion: Politics aside, legal precedents don’t favor Trump in an impeachment inquiry

When the Constitution’s framers first raised the idea of impeachment, they knew there were risks. Alexander Hamilton warned in the 65th Federalist Paper that “there will always be the greatest danger that the [impeachment] decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.”

That danger was certainly realized in the impeachment proceedings of both Andrew Johnson and Bill Clinton, which were heavily freighted with politics. In contrast, Richard Nixon’s resignation came after a strongly bipartisan vote on articles of impeachment by the House Judiciary Committee (the full House never voted on the articles, so Nixon was technically not impeached).

Politics has driven the impeachment investigation of President Trump up to now, but not entirely in the traditional way. While Republicans have, as might be expected, rejected the idea of impeachment, Democrats have also held back — despite ample evidence in the Mueller report of impeachable offenses. Indeed, more than 900 former federal prosecutors who served in both Republican and Democratic administrations have asserted, based on the Mueller evidence, that Trump would be subject to prosecution on several felony charges were it not for the DOJ’s policy against indicting sitting presidents.

President Trump’s attempts to block the Mueller investigation and then cover up the obstruction are very like the conduct that underlay two of the three articles of impeachment against Nixon approved by the House Judiciary Committee in late July 1974. These dealt with obstruction of justice and abuse of power with regard to the president’s attempts to cover up the Watergate break-in.

Moreover, Mr. Trump’s determined effort, based on a broad assertion of executive privilege, to block Congress’ access to documents and testimony relating to his abuse of power is also an impeachable offense. Once again, Nixon provides the precedent: the third article of impeachment voted against him, for contempt of Congress, was based on his refusal, under a claim of executive privilege, to produce evidence subpoenaed by the House of Representatives, including secret White House tapes.

If the House proceeds with its inquiry into Trump, the president will almost certainly contest legally whether he is obligated to hand over documents and allow testimony before Congress. But he is unlikely to win in such an instance. The July 1974 Supreme Court decision in U.S. vs. Nixon gives Congress a decisive weapon in the battle to obtain information it may need to complete an impeachment investigation.

In an 8-0 decision (Justice William Rehnquist recused himself because he had been appointed by Nixon), the Supreme Court ruled in the Nixon case that, while deference was owed to a president’s invocation of executive privilege, a “generalized” claim of presidential confidentiality was overcome by the need for the information (in this case, the White House tapes) in a criminal prosecution (the trial of former Atty. Gen. John Mitchell and other White House officials for obstruction of justice and related crimes). The necessity for the information in a constitutionally authorized impeachment investigation would be an even more powerful counterweight to Trump’s broad claim of executive privilege. If the Judiciary Committee goes to court on this they are likely to win.

Despite their strong hand, Judiciary Committee members stood by and watched as Corey Lewandowski, who wasn’t even a White House employee during the time in question, stonewalled them with a bogus claim of executive privilege and treated them with disdain. But we shouldn’t have been surprised. House Democratic leaders have dithered in the face of a Trump information blockade from the beginning. It’s time for the dithering to end.

The revelations in the last week of Trump’s pressure on Ukraine to investigate his political rival Joe Biden provide an opportunity for the House leadership to finally get the impeachment investigation on the proper constitutional rails. Americans should urge their elected representatives, Democrats and Republicans alike, to stop yammering and attend to their constitutional duty.

Scott S. Barker is a Colorado attorney and author of “The Impeachment Quagmire” and “Impeachment — A Political Sword.”