White House lawyer Patrick Philbin calmly demolished House Democrats’ second article of impeachment during President Donald Trump’s trial in the Senate on Monday — using Democrats’ own past arguments.
Phil bin began by explaining the reasons that the White House had resisted congressional subpoenas — not because of a “blanket” refusal, but for three separate reasons. One was that the House had not yet voted to authorize an impeachment inquiry. Another was that the Department of Justice Office of Legal Counsel told the president to reject subpoenas for senior aides under Supreme Court precedent protecting the deliberations of presidential advisers. And a third was that the House took the unusual step of barring agency counsel from attending depositions, so that the executive branch could protect its privileges when they arose.
Philbin then explained that leading Democrats, and their advisers, had all argued that the president could not be impeached simply for asserting impeached for asserting constitutional and legal privileges and rights.
House Democrats’ obstruction theory is wrong, first and foremost, because in a government of laws, asserting privileges and rights to resist compulsion is not obstruction. It’s a fundamental right. In Bordenkircher v. Hayes, the Supreme Court explained, “To punish a person because he has done the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the state to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights, is patently unconstitutional.
Philbin: This is a principle that, in the past, in the [Bill] Clinton impeachment, was recognized across the board — that it would be improper to suggest that asserting rights is an impeachable offense. Harvard Law Professor Laurence Tribe said, “The allegations that invoking privileges and otherwise using the judicial system to shift information is an abuse of power that should lead to impeachment and removal from office is not only frivolous, but also dangerous. And manager [Jerry] Nadler then said that the use of a legal privilege is not illegal or impeachable by itself — a legal privilege, executive privilege. And Minority Leader [Chuck] Schumer, in the Clinton impeachment, expressed the same view.
Schumer (on video): “To suggest that any subject of an investigation, much less the president … implications to the institution of the presidency is abusing power and interfering with an investigation by making legitimate legal claims using due process and asserting constitutional rights is beyond serious consideration.
Philbin noted later that Nadler and lead House impeachment manager Rep. Adam Schiff (D-CA) had claimed that asserting privileges was evidence of guilt, that “only guilty people try to hide the evidence.”
“Really?” Philbin asked. “Is that the principle in the United States of America, that if you assert legal privileges or rights, that means you are guilty?”
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.