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Why the White House argues it can reject the House’s impeachment requests

A strongly worded letter from the White House on Tuesday informed House Democratic leaders that it will not be complying with the impeachment inquiry, and called the entire process illegitimate, in part because the full House has not voted to authorize it. To understand the White House's legal argument, William Brangham talks with former House Intelligence Committee staffer Jamil Jaffer.

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  • Judy Woodruff:

    It is clearer than ever the impeachment process has put this country's legislative branch and executive branch into direct conflict.

    A strongly worded letter from the White House yesterday informed House Democratic leaders that it will not be complying with the impeachment inquiry that is now under way.

    William Brangham has more.

  • William Brangham:

    Calling the entire impeachment process illegitimate, that letter from the White House lays out its arguments as to why it is completely rejecting the House's requests for documents and witnesses for its inquiry.

    To help us decipher the legal footing for this argument, I'm joined by Jamil Jaffer. He's a professor of law at George Mason University and previously served as associate White House counsel for President George W. Bush.

    Professor Jaffer, thank you very much for being here.

    Let's talk a little bit about the arguments put out in that letter.

    One legal argument was made is that this is simply not a legitimate impeachment inquiry because the full House has not voted to authorize the impeachment inquiry.

    Is that laid out in the Constitution as a requirement?

  • Jamil Jaffer:

    Well, William, there are no requirements in the Constitution for how the House is supposed to conduct an impeachment inquiry.

    But prior practice suggests that the House should take a full — a vote of the full House to initiate the impeachment inquiry. As you can imagine, this is a huge issue. It's a conflict between two coordinate, co-equal branches of the government, one investigating the other, somewhat outside of the normal purview of what the House does.

    Typically, the House does legislation and oversight. This is a quasi-judicial proceeding. And so it's been the practice, although certainly not a constitutional requirement, for the House to take a vote of the full House before beginning an impeachment inquiry.

  • William Brangham:

    So there's no precedent for it, but this — I mean, there's precedent for this, but there's no requirement for it.

    Let's just say the House were to hold this vote and formally call this an impeachment inquiry. Is there precedent then for the White House or the subject of impeachment to say, I'm not participating?

  • Jamil Jaffer:

    The challenge is, typically, in this scenario, when they when they vote to pass a resolution to initiate an impeachment inquiry, there are also procedural rules in place which provide a certain amount of due process to the potential target of the impeachment, in this case, the president of the United States, including the right to call witnesses, the right to cross-examine, the right to be present or have counsel president at hearings and the like.

    And that's normally the process, in part. And it also gives process, by the way, procedural rights, to the minority, typically so that the majority is not accused partisanship or doing something inappropriate.

    So that's generally the ticktock. And so you see the White House saying, this is illegitimate, it's inappropriate. But they're basing that on practice, not on a legal requirement.

  • William Brangham:

    I see. So that was the other argument that the White House has been making, is that, you're not letting us do all of the things that we think of as traditional due process.

    But wouldn't those — in the normal procedure, wouldn't those happen in the Senate, meaning that the House votes to impeach or not, and then, if impeached, the president takes his case, so to speak, to the Senate, where the due process practices would occur?

  • Jamil Jaffer:

    No, that's exactly right, William.

    And it's a point that a lot of people have been making out in the media over the last 24 hours after we saw this letter, that, look, the impeachment proceeding in the House is like a prosecutor doing an investigation, and then bringing charges before the grand jury. And then, eventually, the trial comes, and that's in the Senate, where you have a jury, in this case, 100 senators, presided over by the chief justice.

    And that's where the president or the person, the target of impeachment, gets to present their case.

    Now, that is — that is true that that's — those are the analogous proceedings in a — in a criminal proceeding. But, of course, an impeachment isn't a criminal proceeding. It's a quasi-judicial proceeding. It's a political matter.

    And, typically, because it's political and involves two co-equal branches of the government sort of going really head to head, it's been the practice of the House to give unusual protections in the charging process to the target, because they recognize that if, in fact, the House is to vote articles of impeachment, even if the president isn't convicted, that that has huge effects on the presidency itself and the person in the office of the president.

    So they want to ensure also that they're not being seen as partisan, so they give rights that they wouldn't otherwise have to, to the other side in the minority in the impeachment inquiry, and to the target of the impeachment, in this case, the president.

  • William Brangham:

    I know we say that this is an inherently political process.

    And, sometimes, in Washington, D.C., especially, that can be used as somewhat of a slur. But that's really by design in this case, right? I mean, the framers could have said, judges only handle impeachment.

    But, in this case, they knew, we are going to let the political actors, the House and the Senate, deal with this.

  • Jamil Jaffer:

    No, that's exactly right.

    And it's actually also a reason why we're likely to not see judges get involved in this process, because, as we watch this process go forward, you hear a lot of people saying, well, what happens if the president doesn't comply? Can Congress go to — can the House go to the courts and try to get an enforcement of subpoenas? That's a possibility. That may happen.

    But what if the president just refuses to do anything and refuses to comply with the current inquiry, right? One might say, well, the courts are likely to stay out of it, because this is a quintessential political question, that is, a question that the Constitution texturally commits to the coordinate branches, the political branches of the government, because — because the Constitution, our founders, our framers didn't intend for this process to be in the courts.

    They intended for it to be in the hands of the House on the one hand and in the Senate for the trial and the ultimate decision on the other. And they didn't define, by the way, what they meant by high crimes and misdemeanors. It's a term in the Constitution. It definitely had a meaning at the time they wrote it, but it wasn't defined anywhere in there.

    And there's no — there's no specific standard in the Constitution by which the House or the Senate must judge the president.

  • William Brangham:

    All right, Jamil Jaffer of George Mason University, thank you very much for being here.

  • Jamil Jaffer:

    Thanks, William.

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