III. The evidence does not establish that President Trump obstructed Congress in the Democrats' impeachment inquiry.
Democrats allege that President Trump has obstructed Congress by declining to participate in Speaker Pelosi's impeachment inquiry.[1] Under any fair assessment of the facts, however, President Trump has not obstructed Congress. In fact, the President personally urged at least one witness to cooperate with the Democrats' impeachment inquiry and to testify truthfully.[2] But Democrats cannot and should not impeach President Trump for declining to submit himself to an abusive and unfair process.
In the Democrats' impeachment inquiry, fairness is not an asset guaranteed or even recognized. Democrats have told witnesses in the inquiry that a failure to adhere strictly to their demands "shall constitute evidence of obstruction of the House's impeachment inquiry and may be used as an adverse inference against the President."[3] Democrats have threatened to withhold the salaries for agency employees as punishment for not meeting Democrat demands.[4] As Chairman Schiff explained the Democrat logic, any disagreement with Democrats amounts to obstruction: "The failure to produce this witness, the failure to produce these documents, we consider yet additionally strong evidence of obstruction of the constitutional functions of Congress, a coequal branch of government."[5]
The Democrats' actions are fundamentally abusive. In any just proceeding, the President ought to be afforded an opportunity to raise defenses without Democrats considering it to be de facto evidence of obstruction. In any just proceeding, investigators would not impute the conduct of a witness to the President or use a witness's refusal to cooperate with an unfair process as an "adverse inference" against the President.
The Democrats' obstruction arguments are also divorced from historical precedent for House impeachment proceedings and basic legal concepts of due process and the presumption of innocence. Past bipartisan precedent for presidential impeachment inquiries guaranteed fundamental fairness by authorizing bipartisan subpoena authority; providing the President unrestricted access to information presented; and allowing the President's counsel to identify relevant witnesses and evidence, cross examine witnesses, and respond to evidence collected. These guarantees of due process and fundamental fairness are not present in the Democrats' impeachment resolution against President Trump.
Congressional oversight of the Executive Branch is an important and serious undertaking designed to improve the efficiency and accountability of the federal government. The White House has said that it is willing to work with Democrats on legitimate congressional oversight
- ↑ See, e.g., Amber Phillips, How the House Could Impeach Trump for Obstructing its Probe, Wash. Post, Oct. 8, 2019.
- ↑ Sondland deposition, supra note 51, at 38.
- ↑ See, e.g., letter from Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, et al. to John Eisenberg, Nat'l Sec.Council (Oct. 30, 2019).
- ↑ See letter from Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, et al. to John J. Sullivan, Dep. Sec'y, Dep't of State (Oct. 1, 2019).
- ↑ Phillips, supra note 612.
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