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The Cipollone Letter: Trouble in the White House Counsel’s Office

Bob Bauer
Friday, October 11, 2019, 1:24 PM

The aggressive letter from the White House counsel to Congress, announcing that the president will not cooperate with the impeachment inquiry, is further evidence of the deterioration of norms in the conduct of senior government positions.

The White House (Source: Flickr/Official White House Photo by Shealah Craighead)

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White House Counsel Pat Cipollone’s letter to the House leadership, declaring that the president will not cooperate in any impeachment inquiry, is an extraordinary document in more than one respect. As Keith Whittington and Frank Bowman have shown, the letter’s constitutional and “legal” arguments are baseless. It misrepresents the constitutional law and precedent that it is pleading on the president’s behalf. On the merits, it is an exceptionally weak performance. Add to this another deficiency: its glaring failure to effectively represent the institutional interests of the presidency.

Cipollone argues that Congress has denied the president constitutionally mandated procedural protections and that the inquiry is “constitutionally invalid and a violation of due process.” Assume for present purposes that Cipollone concurs with the president that the House is running amok with this impeachment inquiry. In other words, assume that he genuinely believes that for the impeachment process to be at all fair and the record to be complete before the House votes on articles, the president should be afforded certain procedural safeguards. What should he advise the president about the appropriate engagement with the House, and what considerations should inform that advice?

In these circumstances, a White House counsel would make the affirmative, institutional case for the adoption of fair procedures—not simply posit that the House has rejected them or is certain to do so. Cipollone does not simply assume that the House has definitively rejected any procedural accommodations for the president’s self-defense. He asserts as the settled fact of the matter that all further discussion is futile because the House leadership is acting in bad faith. His description of the House’s position on these issues is not even internally consistent: He argues not only that the House has “abandoned” or “denied” basic rights and protections but also that the House committees “have not established them.” His letter is a puzzle: How can House leadership have abandoned something that it never established to begin with?

What’s more, the Cipollone letter offers no articulation of principles that should properly guide a House impeachment process in establishing procedures with due regard for the institutional presidency. Instead, it makes a sweeping due process claim that the House should recognize the president’s

right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry.

Cipollone prescriptively claims for the president all of these “rights” in principle, though he is presumably well aware that the House majority controls these proceedings and the definition of any such “rights.” The Constitution leaves it to the House, in its exercise of the “sole power to impeach,” to develop as it sees fit the procedural safeguards in an impeachment inquiry. These issues of due process do have institutional significance for the president—for any president, not just Donald Trump—and so it falls to the White House to make a serious argument for appropriate protections and to press the House to recognize them. Cipollone makes no such argument.

It is hard to see why it is to the presidency’s enduring advantage to have the counsel make a show of concern for due process and then cut off further dialogue, summarily refusing any cooperation. His message—“Do what you want”—may work for Trump. But it is surpassingly strange for this to be the position of the White House counsel, who has a duty to look after the presidency’s long-term interests.

There are any number of points that Cipollone might have made to cast defense of the president as a defense of legitimate institutional interests. He could have argued that, on the pending question of communications with foreign governments (including Ukraine), the president should have a robust opportunity to defend his actions or risk being severely undermined in the conduct of foreign relations. He could have argued that, in his leadership on domestic affairs, a president unable to tender this defense in a one-sided proceeding would suffer the high cost of public misunderstanding of the facts, hence the basis for impeachment, with damage to his credibility and capacity to address other pressing issues until the conclusion of a Senate trial.

The White House counsel might reasonably have contended that the House would impair the Senate in the conduct of the trial by voting for articles of impeachment on an incomplete, slanted record. This was a major issue in the Clinton impeachment trial: The House had conducted no fact-finding and relied entirely on the referral from Independent Counsel Kenneth Starr. The Starr Report was highly controversial; irregularities and inadequacies in Starr’s conduct of his investigation became a leading, if not the central, line of defense mounted by the Clinton legal team. The Senate could not start over and set aside the months required for the credible independent inquiry that the House did not conduct. In the end, senators agreed on three depositions and organized the “trial” around formal presentations by the House managers, the White House counsel and the lawyers for President Clinton. The House had done the Senate no favors by transmitting a record subject to the charge that it was the discredited product of irregular process and bias. It would have been entirely appropriate for Cipollone to point to this precedent as a warning—if he had chosen to do so.

One might argue that Cipollone was boxed in: If the president is adamantly opposed to any openness to cooperation, perhaps the counsel believed that he has no choice but to communicate to Congress an unyielding rejection of any proceeding. On this theory about the motivation behind this letter, Trump’s intransigence required Cipollone to assert due process “rights” not as an invitation to negotiation, but as a cover for rejecting any engagement with the House. But even under these pressures, Cipollone could have made room for his institutional role. There is no reason why a letter from the White House counsel making the case for a fairly, responsibly structured process would have committed the president to reach an agreement with the House on any process. The White House could have found fault with what the House had to offer, or depending on events or political considerations, the president and his personal legal team could have walked away from negotiations at any time.

This is the functional difference between the president’s White House and personal legal teams: The personal lawyers have only the objective of getting the president off the hook and no responsibility for defining the president’s constitutional interests in the structure of a House impeachment process. The White House counsel has that latter responsibility.

Cipollone did not embrace it. His letter dispenses with a serious argument about process and insists, in effect, that procedural issues are irrelevant because the House has no grounds at all for an investigation into the president’s possible commission of impeachable offenses. He forges ahead with these arguments for one evident and explicitly stated reason: to support the president’s refusal of any cooperation with the House. This argument sounds like one made by a personal defense lawyer for Donald Trump. But Cipollone is not the president’s personal lawyer.

With this goal of rejecting any cooperation, Cipollone also uses his letter to weigh in on the merits of the impeachment proceedings—with disastrous results. This portion of the letter is embarrassingly conclusory and superficial in its dismissal of any significance to be attached to the president’s call with President Volodymyr Zelensky of Ukraine. Of course, Cipollone does not mention the whistleblower complaint or other reports of systematic administration pursuit of foreign government intervention in an American election on condition of withheld military aid. He does not address the documentary evidence that the head U.S. diplomat in Ukraine understood that this was the president’s aim and objected. Cipollone just asserts that the phone call with Zelensky was “completely appropriate.”

Cipollone attempts to put some weight on the Department of Justice’s decision not to pursue a campaign finance violation arising from the call or the president’s other efforts to exact political help from Ukraine. Because the question of whether the president committed an impeachable offense is not answered by a department declination on this or any other legal issue, this element of his defense is notably lacking in force. But Cipollone then resorts to an even stranger argument. He cites to the House, as evidence in the president’s favor, that “Zelenskyy [has]agreed that the call was appropriate.” In other words, he suggests that the American constitutional question can be put to rest by the judgment of a foreign head of state—a foreign head of state with every incentive to avoid crossing the American president.

As White House counsel, Cipollone would have been justified in advising the House generally of the president’s position that he neither violated the law nor committed an impeachable offense. Yet he does more, launching a defense on the merits based on a selective statement and treatment of the facts and presenting arguments that are either irrelevant (the Justice Department’s declination of the campaign finance charge) or bizarre (the view of the issue expressed by the president of Ukraine).

Cipollone does not leave things there. He takes the additional step of declaring that the House has initiated the impeachment inquiry in order to “overturn the results of the 2016 election” and to “influence the next election” (emphasis in the original). This is an appalling bit of political rhetoric for a communication from the White House counsel to the House leadership. It is not a constitutional argument, nor is it a legal argument. It is the stuff of Trump tweets and Republican National Committee press releases and talking points.

White House counsels are not generally immune to the president’s political imperatives, but their primary job is one of supporting the Office of the President with sound legal advice. That advice may well be situated in, and informed by, the intense politics of a particular matter. But the counsel, while mindful of those pressures, must remain in control of them. The Cipollone letter is not a controlled performance.

Instead the letter is further evidence of the deterioration of norms in the conduct of senior government positions. The president and the White House officials around Cipollone may be convinced that the president is the target of a political conspiracy concocted by adversaries within the “deep state.” They may believe that they should not be shackled by norms that those supposedly determined to bring down this presidency are not observing. Yet it is up to the White House counsel to keep cool and maintain some distance from the political free-for-all, defending at least the norms relevant to the discharge of his duties. If the president demanded that an aggressive letter be sent to Congress, there were others to whom the task could have been delegated and who could have served as signatories.

When all is said and done, Cipollone has informed the House that, on the basis of a unilateral and unsupportable judgment about its merits, the president is washing his hands of the impeachment inquiry. On behalf of the president, he has presented arguments hopelessly weak in substance, political in both content and tone, and harmful to the credibility of his office. And he has done this in support of a refusal to engage with the House on the structure of a fair and appropriate constitutional process that might properly account for legitimate presidential interests.

In effect, the White House counsel has vacated the field and left the House to do as it pleases. This is a bad precedent for the presidency. It may be that Cipollone is a perfectly capable lawyer but, like other lawyers who land within Trump’s orbit, he has found that the quality of his representation cannot survive the demands and impulses of the “client” he represents. The problem for Cipollone is that his “client” is the institutional presidency, which was poorly served by the letter he sent to the House. It was not a good day for the office of the White House counsel nor the norms that should inform its work.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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