Patrick Philbin is Deputy Counsel to the President and Deputy Assistant to the President in the Office of White House Counsel and is one of the lawyers on the White House legal team that is presenting the President’s defense. I particularly like that he clerked for my favorite US Supreme Court Justice, Clarence Thomas.
On Saturday, he provided an overview of how the House Democrats denied due process rights to the President during their “impeachment inquiry.” Among other things, his summary — which was a glimpse of what was to come this week – included a discussion of how Democrats did not use proper due process in their selective subpoenaing of witnesses and documents from the Executive Branch. He also pointed out that the President followed counsel from DoJ’s Office of Legal Counsel at every step of the way during the Houses’ impeachment inquiry.
Philbin’s presentation at the Senate trial on Monday destroyed the Democrat’s impeachment article on “obstruction of Congress” based on long-standing bipartisan agreements on due process and privilege arguments.
Philbin: The other day as we opened our presentation, I touched on two areas: some of the due process violations that characterized the proceedings in the House and some of the fundamental mischaracterizations and errors that underpin the House Democrats’ charge of obstruction. Today I will complete the presentation on those points to round out some of the fundamentally unfair procedure that was used in the House and its implications for this proceeding before you now. And also address in detail the purported charges of obstruction in the second article of impeachment.
On due process, there are three fundamental errors that infected the proceedings in the House. The first is the impeachment inquiry was unauthorized and unconstitutional from the beginning. No committee of the House has the power to launch an inquiry under the House’s impeachment power unless the House itself has taken a vote to give that authority to a committee. I noted in the case of United States vs. Watkins, the Supreme Court has set out these principles – general principles derived from the Constitution, which assigns authority to each chamber of the Legislative Branch. To the House and to the Senate, but not to individual members or to subcommittees. For an authority of the House to be transferred to a committee, the House has to vote on it. The DC Circuit has distilled the principles from the cases this way: “To issue a valid subpoena, … a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers….”
That is the problem here; there was no such resolution. There was no vote from the House authorizing the issuance of subpoenas under the impeachment power. This inquiry began with nearly two dozen invalid subpoenas. The Speaker had proceeded on nothing more than a press conference in which she purported to authorize committees to begin an impeachment power. Under the Constitution, she lacked that authority. As the Chairman of the House Judiciary Committee Peter Rodino pointed out during the Nixon impeachment proceedings, “Such as resolution has always been passed by the House…. It is a necessary step if we are to meet our obligations.” So we began this process with unauthorized subpoenas that imposed no compulsion on the Executive Branch to respond with documents or witnesses. That is a threshold, foundational point that I will be coming back to when we get to the obstruction charge.
The second fundamental due process error is that the House Democrats denied the President basic due process required by the Constitution and by fundamental principles of fairness in the procedures that they used for the hearings. … As we heard from Judge Starr, the House Democrats essentially abandoned the principles that had governed impeachment inquiries in the House for over 150 years.
The first point is that, in denying due process rights, the House proceedings were a huge reversal from the positions House Democrats themselves had taken in the recent past, particularly in the Clinton impeachment proceeding. [In 1998,] Manager Nadler was explaining that due process requires at a minimum notice of the charges against you, the right to be represented by counsel, the right to cross-examine witnesses against you, and the right to present evidence – all of those rights were denied for the President.
Now, one of the responses that the managers have made to the defect that we pointed out in the secret proceedings were Manager Schiff began these hearings in the basement bunker is that really that was just best investigative practice – that they operating like a grand jury. Don’t be fooled by that. Those hearings operated nothing like a grand jury. A grand jury has secrecy, primarily for two reasons: to protect the direction of the investigation so others won’t know what witnesses are being called in and what they’re saying to keep that secret for the prosecutors to keep developing the evidence, and to protect the accused because the accused might not ever be indicted. In this case, all that information was made public every day. The House Democrats destroyed any legitimate analogy with a grand jury because that was all public. They made no secret that the President was the target, they issue bile bout him every day, and they didn’t keep and they didn’t keep the direction of their investigation secret. They published their witness list daily. The direction of the investigation was open, and the testimony was selectively leaked to a compliant media to establish a false narrative about the President. If that sort of conduct had occurred in a real grand jury, that would have been a criminal violation. …
And the grand jury proceedings provide no rationale for the second round of hearings. The same witnesses that were already deposed (in secret) were put on a public hearing where the President was still excluded. … In every prior impeachment where there had been public hearings, the President had been represented by counsel and could cross-examine witnesses. Why did there have to be public hearings where the President was excluded? That was nothing more than a show trial.
Now, I also addressed the other day the House manager’s contention that they had offered the President due process … that when things reached the third round of hearings in front of the House Judiciary Committee … that Manager Nadler offered the President due process. And I explained why that was illusory. There was no genuine due process offer there because before any hearings began – other than the law professors seminar on December 4th – the Speaker had already determined the outcome, already said that there were going to be articles of impeachment, and the Judiciary Committee had informed the White House Counsel’s office that they had no plans to call any fact witnesses or have any fact witnesses or have any factual hearings whatsoever. It was all done, it was locked in, it was baked. And there was something else hanging over that when they had offered purportedly to allow the President some due process rights, and that was a special provision in the rules for the House Judiciary Committee proceedings – also unprecedented – that allowed the House Judiciary Committee to deny the President any due process rights at all if he continued to refuse to turn over documents or to allow witnesses to testify. So that if the President didn’t give up his privileges and immunities that he had been asserting over Executive Branch confidentiality … if he didn’t comply with what the House Democrats wanted … then it was up to Chairman Nadler to say no rights at all. And there’s a term for that in the law – it’s called an unconstitutional condition. You can’t condition someone’s exercise of some rights on their surrendering other constitutional rights. You can’t say, we’ll let you have due process this way if you waive your constitutional privileges on another issue.
The last point I’ll make about due process is this. It’s important to remember that due process is enshrined in the Bill of Rights for a reason. It’s not the process is just an end itself. Instead, it’s a deep-seated belief in our legal tradition that fair process is essential for accurate decision-making. Cross-examination of witnesses in particular is one of the most important procedural protections for any American. The Supreme Court has explained that, for over 250 years, our legal tradition has recognized cross-examination as the greatest legal engine ever invented for the discovery of truth. So, why did House Democrats jettison every precedent and every principle of due process in the way they devised their hearing procedures? Why did they devise a process that kept the President locked out of any hearings for 71 of the 78 days of the so-called investigation? I submit, because the process was never about finding truth. The process was about achieving a pre-determined outcome on a timetable and having it done by Christmas. And that is what they achieved.
Now, the third fundamental due process error is that the whole foundation of these proceedings was also tainted beyond repair because an interested fact witness supervised and limited the course of the factual discovery during the course of the hearings. And I explained the other day that Manager Schiff had a reason, potentially, because of his office’s contact with the so-called whistleblower and what was discussed and how [the complaint] was framed – which all remained secret – to limit inquiry into that, which was relevant. The whistleblower began this whole process. His biases, his motive, why he was doing it, what his sources were … that’s relevant to understand what generated this who process. But, there was no inquiry into that.
So, what conclusion does this all lead to – all of these due process errors that affected the proceedings up to now? It’s important to recognize the right conclusion is not that this body … this chamber … should try to redo everything – to start bringing in new evidence, new witnesses – because the President wasn’t allowed witnesses below – and redoing the whole process. And that’s for a couple of reasons. First, as my colleagues have demonstrated, despite the one-sided and unfair process in the House, that the record that the House Democrats collected through that process already shows that the President did nothing wrong … that is already exonerates the President. But the second and more important reason is because of the institutional implications it would have for this chamber. Whatever precedent is set, whatever this body accepts now, as a permissible way to bring an impeachment proceeding and to bring it to this chamber because it’s the new normal. And if the new normal is going to be that there can be an impeachment proceeding in the House that violates dues process … that doesn’t provide the President or another official being impeached with due process rights … that fails to conduct a thorough investigation … that doesn’t come here with the facts established … that then this body should become the investigator body and start redoing what the House didn’t do … and finding new witnesses and doing things over and getting new evidence … then that’s going to be the new normal. And that will be the way that this chamber has to function, and there will be a lot more impeachments coming because it’s a lot easier to do an impeachment if you don’t have to follow due process, and then come here and expect the Senate to do the work that the House didn’t do. I submit that is not the constitutional function of this chamber sitting as a court of impeachment, and this chamber should not put its imprimatur on a process in the House that would force this chamber to take on that role.
End of Patrick Philbin’s testimony on due process.
To summarize, there were three fundamental due process errors:
(1) the impeachment inquiry was unauthorized and unconstitutional from the beginning;
(2) the House Democrats denied the President basic due process required by the Constitution and by fundamental principles of fairness; and
(3) the whole foundation of the impeachment process was tainted beyond repair because Adam Schiff, an interested fact witness, supervised and limited the course of the factual discovery during the course of the hearings.
Furthermore, due process was denied to the President through the Democrats’ laying of “an unconstitutional condition” on their offer to the President to participate in the House Judiciary Committee proceedings (conditioning the exercise of someone’s rights on surrendering other constitutional rights).
Finally, Philbin made a strong argument not to completely upend the historical precedent as to how the responsibilities of the House and Senate are allocated during impeachment trials, i.e., that the Senate should not take the unprecedented step to do the House’s investigatory work.
All in all, Philbin’s presentation on due process was powerful and convincing. At the very least, his testimony should have added some spine to any wavering Republican senators.