By David B. Rivkin and Lee A. Casey
Nov. 14, 2019, in the Wall Street Journal
Is it an impeachable offense for a president to resist impeachment? House Intelligence Chairman Adam Schiff told CNN last week that White House officials’ refusal to testify in his committee’s impeachment probe could lead to “obstruction of Congress” charges against President Trump. At a press conference last month, he warned the White House against trying to “stonewall our investigation” and said: “Any action like that, that forces us to litigate or have to consider litigation, will be considered further evidence of obstruction of justice.”
He’s wrong. In the absence of a definitive judicial ruling to the contrary, the president has a well-established constitutional right—even a duty—to resist such demands. The Constitution authorized the House to impeach the president if it has evidence of “high crimes and misdemeanors,” but it does not require the president, who heads an equal branch of government, to cooperate in gathering such evidence. Accordingly, the Trump administration has refused to honor various document-production requests, and has instructed some current and former officials to ignore committee subpoenas.
Not all officials have complied with this instruction, but those who have—including former national security adviser John Bolton, former deputy national security adviser Charles Kupperman, chief of staff Mick Mulvaney and deputy White House counsel John Eisenberg—are acting lawfully and appropriately.
It has long been established that the president, and by extension his advisers, have two types of immunity from making disclosures to Congress. One applies to national-security information, the other to communications with immediate advisers, whether related to national security or not. Both immunities, when applicable, are absolute, which means they can’t be trumped by competing congressional needs.
The national-security privilege was most definitively explained in a 1989 memorandum from the Justice Department’s Office of Legal Counsel (OLC). It noted that the privilege is anchored in the longstanding right “not to disclose state secrets,” first asserted by President Thomas Jefferson and affirmed by the courts in 1807. Although the Supreme Court unanimously rejected an assertion of executive privilege for all presidential communications in U.S. v. Nixon (1974), it “unmistakably implied,” according to the OLC memo, “that the President does enjoy an absolute state secrets privilege.”
The privilege for communications with the small group of senior White House staff who are the president’s immediate advisers is equally well-grounded. The OLC first fully articulated it in 1971 under future Chief Justice William Rehnquist. The office has reaffirmed it many times under presidents of both parties in response to all manner of congressional requests.
The privilege is premised on the Constitution’s separation of powers: “The President is a separate branch of government,” a 1982 OLC memo put it. “He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it.” The president’s immediate advisers are effectively his alter egos. Compelling them to appear is the equivalent of compelling him.
This point bears emphasis. Congress also has absolute privileges from interference with its operations, including the Constitution’s Speech and Debate Clause. Under that protection, lawmakers may defy the executive branch—for example, by publicly reading classified information into the congressional record—and they have done so.
Both privileges apply to the situation at hand, in which Congress seeks information from Mr. Trump’s most senior advisers about sensitive issues of national security. Ultimately, the courts must determine whether the president may invoke these privileges and whether his advisers must comply with the Intelligence Committee’s demands. Mr. Kupperman has brought a lawsuit challenging the subpoena, which is now pending before Judge Richard Leon of the U.S. District Court for the District of Columbia. Mr. Schiff appears to have little confidence in his legal position, because he attempted to make the case moot by withdrawing the Kupperman subpoena. House lawyers asked the court to dismiss the action on that ground. Judge Leon refused.
The House claims it doesn’t want judicial review because of another pending lawsuit involving a subpoena. But that case is materially different. It was brought before the impeachment inquiry began and involves efforts to force former White House counsel Don McGahn to testify about the firing of James Comey as director of the Federal Bureau of Investigation and matters related to special counsel Robert Mueller’s investigation. It raises no question of national-security immunity, so it cannot resolve the question with respect to Mr. Kupperman—at least not in Mr. Schiff’s favor.
The House majority’s effort to avoid adjudication of its demands for testimony presents another key problem. Under Mr. Schiff’s legal theory of what constitutes an impeachable offense, the House must demonstrate that the president has engaged in quid pro quo conduct vis-à-vis Ukraine, where U.S. military aid was allegedly withheld to secure cooperation in investigating Hunter Biden’s association with Burisma Holdings, a Ukrainian energy company. Mr. Trump vigorously denies that he intended to withhold U.S. aid.
His state of mind is of utmost importance to the House’s case. Yet, the only witnesses who have provided testimony on the question had little if any direct contact with the president. Advisers like Messrs. Bolton, Kupperman and Mulvaney, by contrast, would have been in daily contact with him. If House Democrats are serious about impeaching Mr. Trump for his dealings with the Ukrainian president, obtaining a judicial ruling that they are entitled to this critical testimony should be their top priority.
Mr. Schiff’s claim that Mr. Trump is guilty of an impeachable offense if he “forces us to litigate” is preposterous. It is the president’s right and obligation to protect the institution of the presidency from inappropriate congressional demands. If Mr. Schiff believes he is right on the law, he should welcome the opportunity to put his case to a judge. His refusal to do so exposes the entire exercise as a partisan sham.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.