Rule of Law

This is the constitutional crisis we feared

For nearly three years, President Trump’s critics have warned that there might come a point when we face a genuine constitutional crisis, one that threatens our very Democratic system. That constitutional crisis has arrived.


The White House has released an extraordinary letter from White House Counsel Pat Cipollone to congressional Democrats, a document that will live on in infamy from this day forward as evidence of how profoundly Trump corrupted the office of the president and everyone around him.

Despite the fact that it appears under the signature of the chief lawyer of the White House, the letter reads like some combination of a deeply misinformed seventh-grader’s social studies paper and a rant from Sean Hannity, randomly tossing around terms like “civil liberties” and “separation of powers” without any apparent understanding of what they mean.

Boiled down to its essence, the letter asserts that Trump is beyond the reach of oversight, of impeachment and of any checks and balances from the legislative branch. Because he thinks Congress is not treating him “fairly” (the word “fair” appears eight times in the letter), Trump has decided that he can issue a blanket refusal to “participate in your partisan and unconstitutional inquiry.” All requests for documents and testimony will be rejected, and all subpoenas will be thrown in the trash.

To put this in context, there are regular disputes between Congress and the executive branch over particular subpoenas or other ways Congress exercises its oversight power.

“The executive rarely if ever is willing to give up everything Congress wants on the terms that Congress wants,” Professor Melissa Murray of New York University law school told me. But the usual procedure is that after some negotiation, “they reach some compromise that’s mutually acceptable. And when they can’t, they will then go to the courts.”

The White House, however, is not saying that they have legal grounds to refuse some particular request Congress has made. They don’t even make a claim of executive privilege. They say instead that the entire inquiry is unfair, and therefore they can reject all of it.

“If Congress cannot exercise its power of oversight or its power of impeachment, it essentially means the president doesn’t have to answer to anyone but the political process, which only comes around every four years,” Murray says. “And that essentially makes the president a king.”

I also spoke to Elizabeth Wydra, the president of the Constitutional Accountability Center, who agreed. The letter, she said, “has no basis in the Constitution, and its claims to wrap its partisan obstruction in the Constitution are outrageous.”

Wydra added that the blanket assertion that the White House will refuse to comply with “the most important constitutional check on executive misconduct — the impeachment process — that’s just unprecedented and extraordinary, and frankly has no place in a properly working constitutional democracy.”

Even Richard Nixon fought with Congress over particular subpoenas, such as for the Oval Office tapes that revealed his guilt, but didn’t claim that he was immune from honoring the entire impeachment process.

The fact that these claims are being made by the White House counsel, who is supposed to be the lawyer for the presidency, demonstrates how everyone around Trump is implicated in his corruption.

The letter’s repeated assertions that the House is violating Trump’s “civil liberties” and “due process” rights are laughable, because the Constitution says nothing about the particular processes by which the House has to carry out impeachment. The House can establish any rules it wants.

Furthermore, the privileges the letter demands, such as the president being able to cross-examine witnesses, are a matter for the trial phase of impeachment, which happens in the Senate. If Trump wants all that, he should take it up with Majority Leader Mitch McConnell (R-Ky.).

Cipollone and the lawyers who work for him know this full well, which is what makes the letter so preposterous. This letter, Wydra told me, “dishonors both the presidency and the White House Counsel’s Office. And frankly, as a lawyer, especially as a constitutional lawyer, I find it repugnant to our duty to the law.”

So will Republicans be standing up to the White House in the face of this outrageous assault on the very idea of checks and balances? You remember, the ones who cried “Tyranny!” whenever Barack Obama signed an executive order, the ones who shouted “Stonewalling!” if the Obama administration resisted a single document request from Congress, the ones who intoned about the Constitution and the rule of law with such seriousness when they demanded Bill Clinton’s removal from office?

If they wanted, they could say that they don’t think Trump should be impeached and hope that if he is he’ll be acquitted by the Senate, but nonetheless they insist that of course he has to respect the powers Congress is granted by the Constitution, because they believe in that Constitution and the system it created.

They won’t say that. Some won’t say it because they’re cowards, afraid of backlash from Trump himself and his most rabid supporters. Some won’t say it because they don’t actually believe in the Constitution if it isn’t delivering the outcomes they prefer.

Whatever the source of their silence — or worse, their despicable defenses of all of Trump’s misdeeds — the result is the same. They’re just as corrupted as the White House lawyers who wrote that shameful letter. And they’re helping Trump drag our entire democratic system down.