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Trump impeachment: Are we facing a constitutional crisis?



Trump's White House letter Tuesday informing House Democrats that they will not cooperate in any way with their impeachment investigation is a serious escalation in the struggle between the two branches of government.

Tensions between Congress and the White House have been high since Trump took office. It is not uncommon for a White House to work with a hostile Congress, as we saw last in the Mueller investigation, but simply ignoring its demands in this way seems to be something else.

The Constitution is pretty clear that we have three separate but equal branches of government. The White House challenges this principle by ignoring what in a way is a legitimate congressional inquiry.

The big question now is: is it actually legal for the White House to ignore Congress in this way? And if the administration stops, are we then in a legitimate constitutional crisis?


  President Trump talks to reporters before boarding Marine One.

President Trump talks to reporters before boarding Marine One on October 4, 2019.
Tom Brenner for the Washington Post on Getty Images

To get some answers, I turned to 13 legal experts. Your complete answers, which have been easily edited for clarity and length, are listed below.

There is no real consensus on the big question of whether we are facing a real constitutional crisis. Some experts believe that we have already exceeded this threshold. others say we'll get there if the administration ignores a court order.

Almost everyone agrees on one thing: We enter dangerous territory.

Yes, the crisis is here.

Lisa Kern Griffin, law professor at Duke University.

The White House's letter is a political stunt that misinterprets the constitution, ignores relevant precedents and contradicts common sense. The Constitution does not say much about the impeachment, but what it does is clear, simple and accurate in Article I. The House "has the sole power to impeach and the Senate" has the sole authority to try all impeachments.

No specific process is specified or required. In other words, the Parliament determines the procedures by which an indictment is brought against the President, and the Senate then runs a lawsuit. Even though this is more of a criminal than a political mechanism, the filing of an indictment does not require an open trial and hearing by witnesses. There is no legal support for the demands of the White House, and the President has also made it clear that there is no procedure at all with which he will cooperate.

Yes, the long-feared constitutional crisis is here. The rejection of this constitutional process by the White House and the entire administration means open contempt for an equal branch of government. The President claims that he can not be charged by prosecutors unless he has been charged by the Congress, and insists that he opposes any investigation of the Congress.

The subpoena of the House of Representatives is, of course, legally valid, but an appeal to the courts will lead to delays, and the passage of time brings the 2020 election closer.

Jessica Levinson, Law Professor, Loyola Law School

What to do? You get when you mix a valid Congressional indictment with a recalcitrant president? A constitutional crisis. We have been dealing with the term "constitutional crisis" for almost three years. But now we are watching a president disobey the constitutional authority of the Congress to initiate and continue an impeachment investigation.

An impeachment investigation is not an invitation to dinner. It's not something you can decide on whether to accept it or not. The President, like other American citizens, is subject to Congress summons. Let us not confuse the President's refusal to comply with a right of refusal.

The President's disagreement is likely to cause the Congress to add one more thing to the impeachment investigation: the obstruction of the judiciary.

The real crisis will come when the White House ignores the courts.

Diane Marie Amann, Law Professor, University of Georgia.

The eight-page letter from the White House attorney can be described as lawful. Sometimes it resembles a legal document, and even some cases of the Supreme Court are cited. Overall, however, the arguments sound political. The White House has taken a political position that has almost unlimited executive power, and pays little attention to the control and balance on which the US Constitution is based on the impeachment of a process to be determined by the House itself. There is no doubt that the House can summon witness statements and documents from executive staff, and these employees must comply with them unless there is a legally recognized privilege. The determination of the existence or nonexistence of such a privilege is not solely in the power of the President.

No, the White House can not simply refuse to cooperate with subpoenas across the board. The perseverance can lead to contempt for the congress, a federal crime that can be punished with imprisonment of up to one year. If this happens and the punishment encounters further resistance, there will certainly be an actual constitutional crisis.

Victoria Nourse, a law professor at Georgetown University

According to popular belief, denying the provision of information means that you have something to hide, hide. The Congress has the power to summon anyone in the private sphere or in the administration for legislative purposes. This is an established law that lasts until 1927. If the President is entitled to executive privilege, this can be claimed, but the courts are his final arbitrators. What the lawyers say to the president in the end is, "Take me to court."

Are we in a constitutional crisis now? In my opinion, the problem has to do with the failure of a neutral intermediary. The rules are clear, but the president refuses to adhere to the set rules. The pressure on the judiciary will increase to act quickly. The law is clear: the president should lose; For his agents, a court summons is required. The true constitutional crisis would occur if the president refused to follow a court order.

Jens David Ohlin, law professor at Cornell University

Refusing to cooperate means changing the strategy for the White House. Initially, the White House worked together (for example, by publishing the telephone call protocol) to remove the argument of disability and to give the Democrats no further argument in favor of impeachment. The White House has apparently abandoned this strategy.

I would not call this a constitutional crisis, since I usually hold back this term in case that a branch of government disregards a court order and does not submit to the rule of law. That said, the Trump administration must petition for Congressional oversight, and their refusal to cooperate with the congressional investigation brings us one step closer to impeachment.

Although Congress may go to federal court to summon a judge to enforce a summons, which is ignored, this move takes time, and in the end, the House may simply decide to reject the White House as further justification for impeachment to use. In this case, impeachment is the ultimate constitutional instrument – a blunt instrument, but still an instrument – to act against a non-compliant executive. Here it goes on.

Michael Kang, Law Professor at Northwestern University

It is hard for the White House to convincingly claim that its total refusal to cooperate with the house's impeachment investigation is "legal" in the usual sense. But the White House is more political than legal.

Obviously, the President has no authority to judge the lawfulness of Parliament's impeachment investigation and then refuse to cooperate on this basis. However, I do not believe that we should call a constitutional crisis. There is still the matter of judicial involvement, which is a probable next step.

The courts are likely to side with the House of Representatives and have access to evidence from the grand jury, at least in terms of the White House's arguments to date. If the White House continues its denials despite all court decisions, it makes sense to speak of a constitutional crisis.

Douglas Spencer, Law Professor at the University of Connecticut

The constitution is not clear in many ways. When it comes to dismissal, however, the language is clear: the House of Representatives "has the sole power of impeachment". The constitution also states that "every house can set the rules of procedure".

The Constitution It is clear that the house can follow all the rules it wants. The congress deals with an investigation, not with a process. If the President is indicted (a.k.a.), he has the right to present evidence in the Senate as part of his trial and to interview witnesses. It is wrong to confuse an impeachment with a trial.

Is there a legitimate basis for the current investigation? The Supreme Court has ruled that the supervision of Congress is not unlimited. In Watkins v. The United States (1957), the Court noted that congressional investigations "are related to and must promote a legitimate task of Congress". As a result, in 1957, the court issued a conviction against union organizer John Watkins, who had been despised by Congress for refusing to answer questions from members of the House Committee on Un-American Activities.

The Constitution does not expressly grant the House of Representatives the sole authority to eradicate communism. On the other hand, the Constitution gives the House the sole power to impeach. It is difficult to see how Watkins would apply in this case.

As there is still a constitutionally mandated way, I do not believe that we are still in a constitutional crisis, even though the events of yesterday have brought us closer. If the courts fail to enforce the congressional summons, or if the courts enforce the summons and the White House ignores the courts (which it did not), then we have a real constitutional crisis in our hands.

Trump's rejection could be a crisis, but the bigger problem is the collapse of norms

Melissa Murray, a law professor at New York University

It seems we have moved from a constitutional crisis to a constitutional crisis, as this government has repeatedly rejected the oversight of Congress requests. The fact that it is an impeachment investigation – the ultimate control of Congress over the executive – reinforces the feeling that this is different from before.


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