Deputy White House Counsel Patrick Philbin told the Senate on Tuesday that Democrats’ claims of a “cover up” of the Ukraine call and the “whistleblower” complaint were incorrect, both factually and legally.
Philbin, a “breakout star” of President Donald Trump’s impeachment trial, delivered the first address on the third day of the White House’s opening arguments.
Philbin began by following up on arguments by Harvard Law School professor emeritus Alan Dershowitz on Monday evening, who told the Senate that the conduct alleged in the articles of impeachment was not even impeachable because they did not allege “criminal-like conduct.”
Philbin noted that the Framers had rejected a proposal by George Mason — whom Democrats had cited frequently throughout their arguments — to make “maladministration” a basis for impeachment. Instead, they followed James Madison’s argument, who said “maladministration” was too vague and would give the legislature took much power over the president. They also followed Gouverneur Morris’s argument that impeachment should apply to a few offenses, not a broad range of conduct that might be objectionable.
He elaborated further: although impeachment was, by its nature, aimed at one individual, the Framers banned bills of attainder (laws targeting individuals) and ex post facto prosecution (for conduct that was not illegal at the time) because they wanted the law, and impeachment, to be specific, narrow, and less prone to abuse.
The idea of impeaching a president for something the Congress imagines was in his or her mind, which was the essence of the House Democrat manager’s case, Philbin explained, is at odds with what the Framers wanted. They wanted to depart from the vagueness that led to abuse in the British parliamentary system.
Philbin noted that the way the House managers proposed to measure whether the president had impeachable intent is by whether he disobeyed U.S. foreign policy. “That is not a constitutionally coherent” approach, Philbin said, because the Constitution gave the president supreme power to determine U.S. foreign policy.
Rather than protecting democracy, Philbin said, the House managers’s approach would actually undermine democracy by making the president accountable to the unelected bureaucrats who had never been granted any constitutional authority, rather than accountable to the voters who had elected him or her to office.
Next, Philbin turned to the question of a “cover up.” Last week, Democrats — especially House manager Rep. Hakeem Jeffries (D-NY) — claimed that the president committed “obstruction of Congress” because of the way the Ukraine call transcript, and the later “whistleblower” complaint, had been handled initially.
In contrast to Jeffries’s (false) claim that the Ukraine transcript had been placed on a secure server to hide it, Philbin played video of former National Security Council official Tim Morrison testifying that he had asked it to be placed there because of concern about leaks, not because there was anything wrong, and that he saw nothing nefarious in that it was accidentally placed on an even more secure server than he had intended.
Philbin also explained the law under which the Department of Justice Office of Legal Counsel (OLC) had not submitted the “whistleblower” complaint to Congress “urgently.” The term “urgent concern,” he said, was a specific term defined by law, and the OLC had determined that it did not apply in this case. Moreover, the president, as the head of state, was not under the legal authority of the Director of National Intelligence.
Some of these points, Philbin said, were extraneous to impeachment, but he had wanted to correct the record.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.