By David B. Rivkin and Lee A. Casey
Nov. 14, 2019, in the Wall Street Journal
Is it an impeachable
offense for a president to resist impeachment? House Intelligence
Chairman Adam Schiff told CNN last week that White House officials’
refusal to testify in his committee’s impeachment probe could lead
to “obstruction of Congress” charges against President Trump. At
a press conference last month, he warned the White House against
trying to “stonewall our investigation” and said: “Any action
like that, that forces us to litigate or have to consider litigation,
will be considered further evidence of obstruction of justice.”
He’s wrong. In the
absence of a definitive judicial ruling to the contrary, the
president has a well-established constitutional right—even a
duty—to resist such demands. The Constitution authorized the House
to impeach the president if it has evidence of “high crimes and
misdemeanors,” but it does not require the president, who heads an
equal branch of government, to cooperate in gathering such evidence.
Accordingly, the Trump administration has refused to honor various
document-production requests, and has instructed some current and
former officials to ignore committee subpoenas.
Not all officials
have complied with this instruction, but those who have—including
former national security adviser John Bolton, former deputy national
security adviser Charles Kupperman, chief of staff Mick Mulvaney and
deputy White House counsel John Eisenberg—are acting lawfully and
It has long been
established that the president, and by extension his advisers, have
two types of immunity from making disclosures to Congress. One
applies to national-security information, the other to communications
with immediate advisers, whether related to national security or not.
Both immunities, when applicable, are absolute, which means they
can’t be trumped by competing congressional needs.
national-security privilege was most definitively explained in a 1989
memorandum from the Justice Department’s Office of Legal Counsel
(OLC). It noted that the privilege is anchored in the longstanding
right “not to disclose state secrets,” first asserted by
President Thomas Jefferson and affirmed by the courts in 1807.
Although the Supreme Court unanimously rejected an assertion of
executive privilege for all presidential communications in U.S. v.
Nixon (1974), it “unmistakably implied,” according to the OLC
memo, “that the President does enjoy an absolute state secrets
The privilege for
communications with the small group of senior White House staff who
are the president’s immediate advisers is equally well-grounded.
The OLC first fully articulated it in 1971 under future Chief Justice
William Rehnquist. The office has reaffirmed it many times under
presidents of both parties in response to all manner of congressional
The privilege is
premised on the Constitution’s separation of powers: “The
President is a separate branch of government,” a 1982 OLC memo put
it. “He may not compel congressmen to appear before him. As a
matter of separation of powers, Congress may not compel him to appear
before it.” The president’s immediate advisers are effectively
his alter egos. Compelling them to appear is the equivalent of
This point bears
emphasis. Congress also has absolute privileges from interference
with its operations, including the Constitution’s Speech and Debate
Clause. Under that protection, lawmakers may defy the executive
branch—for example, by publicly reading classified information into
the congressional record—and they have done so.
apply to the situation at hand, in which Congress seeks information
from Mr. Trump’s most senior advisers about sensitive issues of
national security. Ultimately, the courts must determine whether the
president may invoke these privileges and whether his advisers must
comply with the Intelligence Committee’s demands. Mr. Kupperman has
brought a lawsuit challenging the subpoena, which is now pending
before Judge Richard Leon of the U.S. District Court for the District
of Columbia. Mr. Schiff appears to have little confidence in his
legal position, because he attempted to make the case moot by
withdrawing the Kupperman subpoena. House lawyers asked the court to
dismiss the action on that ground. Judge Leon refused.
The House claims it
doesn’t want judicial review because of another pending lawsuit
involving a subpoena. But that case is materially different. It was
brought before the impeachment inquiry began and involves efforts to
force former White House counsel Don McGahn to testify about the
firing of James Comey as director of the Federal Bureau of
Investigation and matters related to special counsel Robert Mueller’s
investigation. It raises no question of national-security immunity,
so it cannot resolve the question with respect to Mr. Kupperman—at
least not in Mr. Schiff’s favor.
The House majority’s
effort to avoid adjudication of its demands for testimony presents
another key problem. Under Mr. Schiff’s legal theory of what
constitutes an impeachable offense, the House must demonstrate that
the president has engaged in quid pro quo conduct vis-à-vis Ukraine,
where U.S. military aid was allegedly withheld to secure cooperation
in investigating Hunter Biden’s association with Burisma Holdings,
a Ukrainian energy company. Mr. Trump vigorously denies that he
intended to withhold U.S. aid.
His state of mind is
of utmost importance to the House’s case. Yet, the only witnesses
who have provided testimony on the question had little if any direct
contact with the president. Advisers like Messrs. Bolton, Kupperman
and Mulvaney, by contrast, would have been in daily contact with him.
If House Democrats are serious about impeaching Mr. Trump for his
dealings with the Ukrainian president, obtaining a judicial ruling
that they are entitled to this critical testimony should be their top
Mr. Schiff’s claim
that Mr. Trump is guilty of an impeachable offense if he “forces us
to litigate” is preposterous. It is the president’s right and
obligation to protect the institution of the presidency from
inappropriate congressional demands. If Mr. Schiff believes he is
right on the law, he should welcome the opportunity to put his case
to a judge. His refusal to do so exposes the entire exercise as a
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.