Jon Elswick/AP Photo
The October 8, 2019, letter from White House counsel Pat Cipollone to House Democrats on the Foreign Affairs, Intelligence and Oversight and Reform Committees saying that President Trump will not cooperate in the impeachment inquiry
There has been nothing in the Trump administration comparable to the refusal by troops to fire into crowds of protesters. But governments fall when their orders are openly disobeyed. And senior officials in the Trump administration now openly disobey Trump’s orders.
Pat Cipollone, the White House counsel, wrote to House leaders on October 8 that the White House would not “participate” in the House’s impeachment inquiry, in the way one might decide not to enter an office sports pool. The letter reads more like talking points for a cable news or talk radio appearance than a legal argument: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.” Trump reportedly dictated much of the letter to Cipollone.
Cipollone’s letter claims that current and former State Department officials are “duty bound to protect the confidentiality interests of the Executive Branch,” and that “employees of the Executive Branch who have been instructed not to appear or not to provide particular testimony before Congress based on privileges and immunities of the Executive Branch cannot be punished for following such instructions.” Cipollone separately warned subpoenaed witnesses that there was an “Administration-wide direction that Executive Branch personnel ‘cannot participate in [the impeachment] inquiry under the circumstances,’” and that they could not be punished for disobedience to “invalid” subpoenas.
The witnesses’ own lawyers apparently advised them differently, however, and concluded that subpoenas from Congress carry more legal weight than letters from Cipollone. They likely also concluded that Cipollone’s legal arguments were snatched from thin air and generally laughable.
Some administration officials have refused to testify, of course, supposedly on the basis of Cipollone’s letter. One administration official after another, however, openly disobeyed Trump’s and Cipollone’s direction and provided lengthy, detailed, and reportedly damning testimony. A current official of the White House National Security Council, Lieutenant Colonel Alexander Vindman, testified yesterday. Vindman reportedly listened to Trump’s call to the Ukrainian president, and reported his concerns about the call to his superiors. Trump called Vindman a “Never Trumper” in a tweet, and allies smeared him as having loyalty to Ukraine.
The witnesses apparently confirm exactly what the CIA whistleblower said he or she had been told: The Trump administration withheld aid to Ukraine appropriated by Congress unless the Ukrainian government publicly announced an investigation of corruption by Joe Biden. There was a quid, there was a quo, and between the two there was a pro. And it was all very explicit. (An actual investigation apparently was not necessary, but an announcement that there was an investigation was a condition for American aid.)
Cipollone’s and Trump’s argument against the House’s impeachment inquiry just gets weaker. Last week, a federal judge held that an impeachment inquiry does not require an initial House vote under the Constitution, House rules, or court decisions. Speaker Pelosi announced that the House will soon formally vote to begin an impeachment inquiry anyway. And witnesses will testify in public hearings within a week or two, and transcripts of their private interviews attended by dozens of House Republicans will be released.
The House now appears certain to impeach Trump on evidence that will be compelling and by procedures that will be judicious, despite every effort by Trump’s allies in the House to turn the proceedings into a circus. The administration witnesses’ testimony has been by far the most effective resistance to the abuse of presidential power so far.
The Trump administration’s problem with disobedience is not limited to the Ukraine investigation. The Department of Justice’s lawyers disobeyed orders from superiors before the State Department’s diplomats did, and Trump is sure to continue to need lawyers.
The Supreme Court decided this summer that the 2020 census could not include a citizenship question. The Supreme Court agreed with the trial judge that the stated rationale for the question—Voting Rights Act enforcement— was “contrived” and a “pretext.” Civil rights groups and state and local governments argued that the real purpose for the question was to inhibit response to the census by Latinos and thus to diminish Latino political power. DOJ lawyers told the trial judge that the Supreme Court decision was the end of the case, and the census questionnaire would not have a citizenship question. Trump contradicted the DOJ lawyers in a tweet: “The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE. We are absolutely moving forward. …”
The Commerce Department reportedly had a not-yet-revealed, totally nondiscriminatory rationale for the question. The administration had inexplicably neglected to mention that rationale in more than a year of litigation, but the new rationale was the real rationale all along, not the Voting Rights Act stuff that the courts found was phony. Trump’s attorney general, William Barr, apparently devised the administration’s legal strategy.
The DOJ lawyers who had worked on the case, all 11 of them, moved to withdraw so other DOJ lawyers could take their place. The lawyers did not give a reason for their motion, but the reason was abundantly clear: They had been told to file legal pleadings that were obviously false with a judge from whom the lawyers already expected punishment for their earlier conduct, and they refused. The next day, the judge denied the DOJ lawyers’ motion to withdraw.
Trump was forced to abandon the legal defense of the citizenship question. He blamed Democrats for his failure. “As shocking as it may be, far-left Democrats in our country are determined to conceal the number of illegal aliens in our midst,” Trump said.
Americans have long held faith that our democracy is resilient because of norms that are not legally enforced but internalized by almost everyone who holds political power. That faith has been greatly shaken in the last three years. No political system can function if government employees only follow the directives with which they agree. Much of the permanent Washington policy establishment now thinks that power bestowed by the votes of Americans matters less than technocratic expertise, a point of view that we should strongly discourage.
But survival of democracy ultimately requires that government employees, military and civilian alike, disobey certain orders. The disobedience by career officials in the Ukraine investigation and DOJ lawyers in the citizenship question litigation is reassuring.
We should not rush to erect statues to honor the witnesses in the Ukraine investigation and the DOJ lawyers. The DOJ lawyers, in particular, did as they were told for far too long. Still, there is career risk from disobedience, and disobedience requires some courage. Sometimes courage can be contagious.
We need an epidemic.
