What Trump is hiding from the impeachment hearings

Author : Neal K. Katyal

Source : 112 Ukraine

The president’s efforts to prevent the House from doing its job are just as worrisome as the Ukraine scandal
13:26, 13 November 2019

New York Times

The public impeachment hearings this week will be at least as important for what is not said as for what is. Congress will no doubt focus a lot on President Trump’s dealings with Ukraine and his secret plan to get that government to announce a public investigation of the man he considered his chief political rival, Joe Biden.

But think about what the president is trying to hide in the hearings. He has been blocking government officials from testifying before Congress, invoking specious claims of constitutional privilege. And while the Ukraine allegations have rightly captured the attention of Congress and much of the public, Mr. Trump’s effort to hinder the House investigation of him is at least as great a threat to the rule of law. It strikes at the heart of American democracy — and it is itself the essence of an impeachable offense.

President Trump has categorically refused to cooperate with the impeachment investigation. He has declined to turn over documents related to the inquiry and has instructed all members of his administration not to testify before Congress. Every member of the executive branch who has gone to tell the truth to the House impeachment investigators — like Marie Yovanovich and Alexander Vindman (and maybe Gordon Sondland, too, at least the second time around) — has done so in defiance of the president’s instructions. President Trump’s personal lawyer, Rudy Giuliani, has refused to testify. Secretary of Defense Mike Esper, Energy Secretary Rick Perry, Secretary of State Mike Pompeo and the acting White House chief of staff, Mick Mulvaney, have ignored congressional subpoenas related to the investigation.

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Mr. Trump’s stonewalling is a grave problem because it means there is no way to police executive branch wrongdoing. The attorney general, William Barr, has said a sitting president cannot be indicted. The president’s lawyers have gone so far as to say, in light of that principle, that he cannot even be criminally investigated. But every serious scholar who adheres to the view that a sitting president cannot be indicted combines that view with the belief that the impeachment process is the way to deal with a lawless president. Indeed, the very Justice Department opinions that Mr. Barr relied on to “clear” the president say exactly that. Otherwise a president could engage in extreme wrongdoing, and the American people would have no remedy.

But for impeachment to have meaning in our constitutional system, there must be a way for Congress to ferret out the facts. Presidents don’t engage in open wrongdoing. They try to hide it — as Mr. Trump did here by using a shadow foreign policy channel led by Mr. Giuliani and making a secret phone call whose details were hustled by White House staff onto a highly classified server. We saw the damning memo of the phone call, with President Volodymyr Zelensky of Ukraine, only because of a complaint by a whistle-blower.

The president now claims that, despite the call memo and other evidence, he never intended to do anything wrong. But the only way to test that claim is to permit witnesses to testify about what the president said at the time, and what he knew and asked about.

To take one obvious example, John Bolton, his former national security adviser, has said that he “was personally involved in” many “relevant meetings and conversations that have not yet been discussed in the testimonies thus far.” What kind of system would permit an impeachment investigation to proceed without hearing what Mr. Bolton has to say because the target of the inquiry orders his silence? How could a system that allows the subject of an investigation to block all the witnesses from testifying be consistent with the rule of law?

Just think about President Richard Nixon. He, too, tried to block White House officials from testifying in Congress. “Under the doctrine of separation of powers,” Nixon declared on March 12, 1973, “the manner in which the president personally exercises his assigned executive powers is not subject to questioning by another branch of government.”

But the Senate Select Watergate Committee held firm and insisted on the witnesses appearing, going so far as to say it would jail any witness who invoked executive privilege. That led Nixon to throw in the towel, saying he would not invoke privilege and would let the aides testify.

Related: Trump announces release of Zelensky-Trump second conversation transcript

“Executive privilege,” Nixon declared, “will not be invoked as to any testimony concerning possible criminal conduct, or discussions of possible criminal conduct, in the matters presently under investigation, including the Watergate affair and the alleged cover-up.”

Witnesses have to be able to tell the truth to Congress. We are hearing what we are hearing only because brave government officials, including people in Mr. Trump’s White House, have defied the president’s orders. But what we don’t know is at least as important as what we do know.

The stonewalling is particularly pernicious here because Mr. Trump’s party controls the Senate. It would be one thing if the Senate had 67 Democrats, and the president could claim, cynically or not, that impeachment was some sort of political coup. But why is the president afraid of letting his own White House officials tell the truth in a process ultimately controlled by Senate Republicans?

The bottom line is that President Trump is out-Nixoning Nixon. And while the Ukraine allegations will take center stage in the coming days, the actors offstage are at least as important as the ones on it. The American people deserve answers. Any claim by the president to hide the truth is itself a grave wrong and an impeachable offense.

Read the original text at The New York Times.

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