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"In a letter to House leaders, White House counsel Pat Cipollone wrote that House Democrats’ recent actions violate “the Constitution, the rule of law, and every past precedent.” He criticized the impeachment inquiry as attempt to overturn the 2016 presidential election results and to influence the upcoming 2020 campaign. "
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The Committees' inquity also suffers from a separate, fatal defect. Despite Speaker
Pelosi's commitment to "treat the President with fairness,"6 the Committees have not established
any procedures affording the President even the most basic protections demanded by due process
under the Constitution and by fundamental fairness. Chairman Nadler of the House Judiciary
Committee has expressly acknowledged, at least when the President was a member of his own
party, that "[t]he power of impeachment ... demands a rigorous level of due process," and that
in this context "due process mean... the right to be informed of the law, of the charges
against you, the right to confront the witnesses against you, to call your own witnesses, and to
have the assistance of counsel. "
7 All of these procedures have been abandoned here.
These due process rights are not a matter of discretion for the Committees to dispense
with at will. To the contrary, they are constitutional requirements. The Supreme Court has
recognized that due process protections apply to all congressional investigations.8 Indeed, it has
been recognized that the Due Process Clause applies to impeachment proceedings.9 And
precedent for the rights to cross-examine witnesses, call witnesses, and present evidence dates
back nearly 150 years. 10 Yet the Committees have decided to deny the President these
elementary rights and protections that form the basis of the American justice system and are
protected by the Constitution. No citizen-including the President-should be treated this
unfairly.
"The effect of impeachment is to overturn the popular will of the voters. We
must not overturn an election and remove a President from office except to
defend our system of government or our constitutional liberties against a dire
threat, and we must not do so without an overwhelming consensus of the
American people. There must never be a narrowly voted impeachment or an
impeaclnnent supported by one of our major political parties and opposed by
another. Such an impeachment will produce divisiveness and bitterness in our
politics for years to come, and will call into question the very legitimacy of
our political institutions."
Your recent letter to the Acting White House Chief of Staff argues that "[ e ]ven if an
impeachment inquiry were not underway," the Oversight Committee may seek this information
as a matter of the established oversight process. 28 Respectfolly, the Committees cannot have it
both ways. The letter comes from the Chairmen of three different Committees, it transmits a
subpoena "[p]ursuant to the House of Representatives' impeachment inquiry," it recites that the
documents will "be collected as part of the House's impeachment inquiry," and it asserts that the
documents will be "shared among the Committees, as well as with the Committee on the
Judiciary as appropriate."29 The letter is in no way directed at collecting information in aid of
legislation, and you simply cannot expect to rely on oversight authority to gather information for
an unauthorized impeachment inquiry that conflicts with all historical precedent and rides
roughshod over due process and the separation of powers. If the Committees wish to return to
the regular order of oversight requests, we stand ready to engage in that process as we have in
the past, in a manner consistent with well-established bipartisan constitutional protections and a
respect for the separation of powers enshrined in our Constitution.
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