Pols301: Letters to the Editor

Posted On 2021-04-11

This was the midterm. I’ve been looking around for the final, but that may have been the Smith thing. I know there’s a few things that were lost to mis-saves though, so who knows. In this case, the assignment was a flight of fancy. The lawyer representing Trump had penned a letter to some newspaper, and we were to respond on behalf of some interested entity. This is like fanfic for disgruntled lefties, basically.

Pat A. Cipollone
Counsel to the President
White House
Washington, D.C. 20515

Mr Cipollone:

I write to you on behalf of my role as chair of the Madison Heritage Foundation. Our mission is to foster understanding of the concerns and virtues that men like James Madison sought to address and capture in the composition of the Constitution. While the reality of presidential impeachment is disruptive, I’m sure you can understand our professional appreciation for the opportunity to learn from and explore the application of the powers granted to our leaders. Our foundation is authoring an ongoing observational study on the paradigm of voting behavior and representative facility that has been producing meaningful conclusions for over twenty years- if you’ll pardon our enthusiasm, impeachment is a rare treat! I was provided a copy recently by one of my colleagues of a letter your office provided to congress denying Executive participation in their inquiry. I suspect his intent was provocation, but it has instead inspired a great concern for the interpretation of constitutional law by your office. If you’ll excuse the presumption, I would like to provide some context for you to consider as your work on this subject continues.

Letter to Congress, October 8

Firstly it is important to ensure we are talking about the same things, as your letter covered several complex ideas. You indicate that the White House will not be complying with congressional impeachment-related requests over objections to the nature of the House’s investigation. Those concerns are first that the process is being carried out in variance from prior precedent or from legal norms of equitable treatment. You describe the inquiry as an effort to “overturn the results of the 2016 election” on a partisan basis. Finally, you assert the acceptability of President Trump’s conversation with President Zelensky and question the conduct of House Rep. Adam Schiff with regards to remarks made on the subject.

These objections speak to assumptions made about the interplay of our branches of government and the consequences of both Constitutional text and Executive policy. While I wish to focus on the constitutional aspect, there are implied contradictions that arise. Do the Executive powers you presuppose provide Congress or the Court with a similar conditional immunity to Executive authority? If election results are inviolable, does your office question the constitutionality of prior impeachments? Can the procedures followed in those impeachments be considered valid precedent, if they were thus invalid in fact? President Trump in his conversation encouraged the criminal investigation of an American citizen by a foreign government. Does the President have greater confidence in the abilities of Ukrainian prosecutors than he does his own federal prosecutors? Is the arrangement of extrajudicial collusions with foreign states an implied power available to subsequent administrations? Is our opposition to international jurisdictions like those of the International Criminal Court invalidated by this new precedent? These questions – and I’m sure any others – are seemingly posed by your letter to Congress. They are notably beyond this Foundation’s expertise as well, so I would not presume to debate those ideas here beyond presenting them as among the complications to consider.

Madisonian Constitutional Ideology

President James Madison was an architect among the Founders of the structures and properties of government as defined by the United States Constitution. In the many Federalist Papers he co-authored, his concerns – and the steps committed to addressing them – are shared. The presence of this context is both illuminating and vital. Given the reach of government into the lives of everyday Americans, we see Madisonian ideas acted out in real time throughout the nation. As deliberative bodies like the Court weigh the constitutionality of events, it is often difficult to ascertain how changes in society over time affect our understanding of Articles or Amendments. Access to Madison’s own words on the subject allow us to look at constitutional passages through the perspective of an author; we can see both the words and what was intended to be written in between. A great deal of historical ambiguity is avoidable thanks to the work of people like Madison to include everyone in the process of national self-determination.

Through the Federalist papers, we know Madison was concerned with the composition and reach of political power. We know he was concerned by a historical tendency for authoritarian leadership to arise, and we know he was concerned for our independence from foreign influence. More importantly, we know how the structures defined in the Constitution were explicitly designed to address those concerns. These structures – the composition and practice of federal government, the nature of interaction with and between state government – share a common dependence on civil complexity. The three branches of federal government operate with distinct function to ensure independence and balance. The federal government is in ongoing tension with state governments, who are themselves in tension with county or city governments. Perhaps counterintuitively, these structured confrontations were not entitled to stifle leadership but to sustain it. To paraphrase the idea, if everyone is always busy working for themselves, none can achieve the power to meaningfully work against others.

For these principles to work, one condition must be present- the people involved with our nation’s leadership must be personally committed to exercising their individual will towards that end. The independence of the Executive – corroborated by your letter – is intended to equal that of the Congress or the Courts, or of state or lesser governments. Madison’s expectation was that all representatives would be working for their constituents, and none would be working for another. The positions taken in your latter present a challenge to both Constitutional structure and principle.

Contextual Applications

You describe in your letter how the President is not being afforded constitutionally-afforded due process rights like the ability to call or cross-examine witnesses. The impeachment investigation is likened by your words to a courtroom trial. Unfortunately, this is a false analogy. The Constitution clearly defines the congressional roles; the House “shall have the sole power of impeachment”, while the Senate “shall have the sole power to try all impeachments”. If we were to remain in criminal justice metaphor, the current phase of this impeachment process would be that of the detectives investigating an allegation. During this phase of the police process, subjects of the investigation are not involved in the deterministic effort, and their interactions with other involved parties is generally characterized as “tampering”.  Even within the chambers, an impeachment in progress cannot be expected to unfold like an episode of “Law & Order”.  The article later states that “Each House may determine the Rules of its Procedings”, but there is no direction for those rules to conform to conventions from outside forums, or even to rules adopted by previous sessions of Congress. This last speaks to your concern for the House not adhering to precedent; firstly they are not obligated to, and second that this Democratically-led House has in fact been following the impeachment-process rules laid out during the Republican-led 114^th meeting of Congress.

President Trump’s prospective impeachment is characterized as a partisan attempt to “overturn the results of the 2016 election”. While this argument is rhetorically correct, it is literally circular.  An inherent attribute of American executive power is that it is intended to end by constitutionally-mandated processes. Throughout most of our history, the relevant process has been subsequent elections, but impeachments are a legitimate recourse as well. Note that members of Congress are elected too! The position that the will of the voters has supremacy over other mechanisms creates a space where the presidential veto of a bill could be construed as an unacceptable breach of the will of representatives’ constituencies. The parameters and legitimacy of an impeachment process were debated at the Constitutional Convention of 1787. Madison argued for both the need for congressional discretion and the importance of having a mechanism beyond whichever next election. That impeachment remained a tool in the Constitutional box is a testament to the quality of his argument. 

Contemporary applications of impeachment include a dimension not accounted for in the text of the Constitution. Prior to our government’s formation, political parties had yet to coalesce, and the virtue of their very existence was debated. In the Federalist Papers, Madison expressed concerns about private interests – factions – rising to positions of legislative power over minority interests. Our political parties have in many ways become the factions that Madison and others worried over. Of course, these parties aren’t going anywhere, but their presence presents risks that must be accounted for. There is the narrative of the oppressive House majority imposing itself upon the Senate, Executive, and Court majorities; your letter suggests your client’s subscription to this framing. But that narrative has a corollary, that of an alliance committed to the maintenance of wrongdoing for the sake of maintaining power. The course being charted by the House majority suggests their subscription to the latter. Because our parties have so effectively overcome the partitioning of political authority, our republic’s leaders must remain mindful of both possibilities.

In your argument you describe the House’s process as “contrived” and “lacking the necessary authorization for a valid impeachment proceeding”. As previously described, the Constitution’s text renders these concerns groundless. Precedent need not necessarily apply, and authorization was granted by the Convention’s delegates over two hundred years ago. Your description however is an action as well, and reflective of an interaction with Congress- the White House’s refusal to participate is an Executive denial of Legislative legitimacy. This is dangerous ground to tread between two branches of government when a third exists for just such a purpose. The Constitution confers upon the Court jurisdiction over all cases “in law and equity arising under this Constitution” This determinative imperative is discretion not offered to either Congress or the President; the White House’s refusal is the claiming of power not in its possession. This is not an endorsement of the House inquiry, but a recognition that Executive discretion is not a sanctioned substitute for judicial deliberation.

The involuntary removal of a president is a political upheaval, and the prospect was only anticipated in the event of circumstances threatening to the sanctity of the republic. There is perhaps an irony in the role another constitutional entity was envisioned to play in the prevention of impeachments. Just as political parties have evolved far outside of the Founders’ expectations, so too has the Electoral College. While the President secured his position through the support of the College, the body does not function entirely as intended. Conceptually, the College would consist of statesmen, people of status and discernment who would select for the office a candidate of unimpeachable character. The Electoral College was considered a vital filter, given the variability of public opinion and the temptations of power. It was expected that the Presidency would be subject to a legal standard above and beyond that of the citizenry at large, and that the House in the application of its “sole powers” would have to exercise judgement as to when acts (objectively criminal or otherwise) of the office warranted removal. Because a higher standard than ‘avoiding criminality’ was desired, the ideal candidate under any circumstance would be the one whose judgement would steer them towards not merely to the right side of the law, but to the right side of history. 

You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.

Lindsey Graham, Jan ’99

Constitutional “Stress Points”

With respect to your position as an employee, and your professional obligation to represent the interests of your client, I will limit these concerns to those for which I am professionally responsible. To be sure, there are questions of fact that you raise, but I must trust that the ongoing investigation will resolve the details properly, and the truth will out. I believe you rely on a generous interpretation of executive discretion in your assertion that that the transcript of the “Zelensky call” was innocuous, and I don’t believe Congressman Schiff was under oath when characterizing the contents of the call’s summary. Such discussion however would be well beyond the bounds of my expertise. It is my hope instead that a revisiting of your own legal foundations will re-focus this process on matters of greater import than the quality of congressional satire. 

Given how our processes have evolved since the writing of the constitution, it is no stretch to say that our branches of governance are presently operating in a manner never imagined by Madison or any of our other founders, save perhaps as a cautionary tale. As the subject of impeachment continues to develop, it is impossible to say just yet whether sufficient individual agency remains to ensure the integrity of the process and its outcome. For all the conflict and vitriol I see in the headlines, the process in the House has largely adhered to the body’s rules; representatives both there and in the Senate may yet prove to be more compelled by principle than partisanship. One can only speculate as to the shifting consequences that will be produced by the ongoing collision of changing public mores and static guiding text.

Looking forward to the inevitability of future legal challenge, I would encourage you to consult with constitutional litigators on the efficacy of your positioning. Reflected in your letter to Congress are foundational elements of Constitutional law presented in a manner counter to their inception. Continued framing of these subjects in this manner may do the great disservice of confusing our citizens as to the nature of their republic. The subject of impeachment is of substantial import, and precedent makes clear the possibility for friction between and within our branches of government. That same precedent establishes a correlation between such friction and the presence of “high crimes or misdemeanors”. It is my understanding that the courts have thus far adhered to that precedent. With regards to those matters presently before the court, I trust that you are more connected to the rulings underway than I am through coverage in the news. That news has not been favorable to the interpretation of republican principle applied in your letter. Considering the substance of those differences and their contravention of the Constitution’s ‘sole power’ clause, I would advise you to expect further disappointment from the Court in your client’s great matter.

Mr Cipollone, I thank you for taking the time to read through these concerns. Please consider this office to be a resource for yours should you desire clarification or further counsel.

Respectfully,

D. Pomes

Chair, Madison Heritage Foundation

cc: Mr Sean Kelly, Professor, Cal State University Channel Islands