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Impeachment and the Supreme Court

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As the House of Representatives' Impeachment Inquiry rolls along, it continuously runs into non-cooperation from the Trump Administration. Dems could chose to ignore this but if they did they would deprive the investigation of potentially vital information. On the other hand, fighting this non-cooperation means going through the legal system -- and likely appearing before the Supreme court -- and that takes time. The longer the inquiry takes, the more likely that the public will lose interest and the more likely that support for impeachment will diminish. The House Democratic leadership is engaged in a balancing act between keeping the public informed and wrenching vital information out of the Trump Administration.

It's unlikely that Trump will ever voluntarily cooperate with the House investigation. Trump has had a checkered business career and, in the process, engaged in more than four thousand lawsuits. (In 2016, USA Today (https://www.usatoday.com/pages/interactives/trump-lawsuits/) counted 4095 lawsuits.) Since entering the White House Trump has been as litigious, and over the past 34 months, he has precipitated dozens of additional legal actions. Some of these -- such as those involving sexual misconduct -- do not bear directly on the impeachment proceedings. Many of the others -- such as those involving alleged violations of the Constitution -- are related.

In all the legal cases, the Trump pattern is the same: Trump unapologetically pushes limits and, when challenged, defies his adversary to prove their case in court. (Typical is the legal case regarding Trump University that took four years to reach a $25 million settlement in 2017 -- Trump's response was, "The ONLY bad thing about winning the Presidency is that I did not have the time to go through a long but winning trial on Trump U. Too bad!") Trump never acknowledges that he did anything wrong.

The House Impeachment Inquiry alleges three basic offenses, detailed in Speaker Pelosi's October 20th memorandum (https://www.speaker.gov/sites/speaker.house.gov/files/Trump%20Shakedown%20and%20Coverup.pdf ) "The Shakedown. The Pressure Campaign. The Coverup."

1.The Shakedown: The key transaction took place on July 25th during a telephone conversation between Trump and Ukrainian President ("Unclassified Memorandum of Telephone Conversation" between Donald Trump and Ukrainian President Zelensky (https://www.politico.com/story/2019/09/25/trump-ukraine-phone-call-transcript-text-pdf-1510770 ).) In return for the promise of U.S. assistance, Trump requested, "I would like you do us a favor," and asked Zelensky to investigate Joe and Hunter Biden.

Many constitutional lawyers have stated that Trump's action is a violation of U.S. Government Code title 18 Section 201(b) ( https://www.law.cornell.edu/uscode/text/18/201), which states that any public official who "corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for" being influenced in the performance of any official act" is breaking the law.

From the Whistleblower complaint ("Unclassified Whistleblower memo to Senator Richard Burr and Congressman Adam Schiff." (https://www.nytimes.com/interactive/2019/09/26/us/politics/whistle-blower-complaint.htm )) we know that "Senior White House officials had intervened to 'lock down' all records of the phone call, especially the official word-for-word transcript of the call... the transcript was loaded into a separate electronic system... used to store and handle classified information of an especially sensitive nature."

Therefore, it is reasonable for the impeachment inquiry to insist upon the "official word-for-word transcript of the call." It is also reasonable for the Impeachment Inquiry to subpoena Secretary of State Mike Pompeo who was present during this call -- and anyone else in the room.

2. The Pressure Campaign: During the past several weeks, we've learned that the Trump Administration used a variety of means to pressure Ukraine to deliver dirt on Joe and Hunter Biden. The key person in the effort is Rudy Giuliani -- Trump asked Zelensky to work with Giuliani. Also involved in this pressure campaign were Vice President Pence, Attorney General Barr, acting White House Chief-of-Staff Mulvaney, and Energy Secretary Rick Perry.

It is reasonable for the impeachment inquiry to command the testimony of all these individuals -- and to demand that they deliver related materials such as texts, emails, transcripts and notes.

3. The Cover Up: During the past several weeks, we've learned that the Trump Administration used the power of the White House "to solicit interference from a foreign country in the 2020 U.S. election." They then took extreme steps to hide these actions, such as hiding the official transcript on a highly classified electronic system, or forbidding witnesses to appear before Congress. This is an abuse of presidential power.

It is reasonable for the impeachment inquiry to command the testimony of the applicable Trump Administration officials -- and related materials. If they fail to do this, that would constitute an additional offense.

Summary: We're in the middle of the first of three phases of the impeachment process: investigation. During this phase there will be multiple hearings, some public, some not.

At the conclusion of this phase, Democrats will initiate the second phase and construct the articles of impeachment. (These will be voted on by the house and, if passed by a majority, the process will move into the third phase: an impeachment trial in the Senate.)

It's clear there is enough evidence to construct three article of impeachment: bribery, conspiracy, and obstruction of justice. It would be helpful if some the related lawsuits were settled by the Supreme Court before the trial in the Senate. (For example, the Supreme Court could rule that Secretary Pompeo must testify and must turnover his related notes and texts.) However, this is not necessary for construction of the articles of impeachment.

However, there is enough evidence to start the impeachment trial and Trump's non-cooperation can be litigated during the trial -- after all, Supreme Court Chief Justice Roberts will preside over the Senate trial. In this sense, the Supreme Court will be involved in the final phase of the three-phase process.

 

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Bob Burnett is a Berkeley writer. In a previous life he was one of the executive founders of Cisco Systems.
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