JUDY WOODRUFF: It is clearer than ever the
impeachment process has put this country’s
legislative branch and executive branch into
A strongly worded letter from the White House
yesterday informed House Democratic leaders
that it will not be complying with the impeachment
inquiry that is now under way.
William Brangham has more.
WILLIAM BRANGHAM: Calling the entire impeachment
process illegitimate, that letter from the
White House lays out its arguments as to why
it is completely rejecting the House’s requests
for documents and witnesses for its inquiry.
To help us decipher the legal footing for
this argument, I’m joined by Jamil Jaffer.
He’s a professor of law at George Mason University
and previously served as associate White House
counsel for President George W. Bush.
Professor Jaffer, thank you very much for
Let’s talk a little bit about the arguments
put out in that letter.
One legal argument was made is that this is
simply not a legitimate impeachment inquiry
because the full House has not voted to authorize
the impeachment inquiry.
Is that laid out in the Constitution as a
JAMIL JAFFER, Former Senior Counsel, House
Intelligence Committee: Well, William, there
are no requirements in the Constitution for
how the House is supposed to conduct an impeachment
But prior practice suggests that the House
should take a full — a vote of the full House
to initiate the impeachment inquiry.
As you can imagine, this is a huge issue.
It’s a conflict between two coordinate, co-equal
branches of the government, one investigating
the other, somewhat outside of the normal
purview of what the House does.
Typically, the House does legislation and
This is a quasi-judicial proceeding.
And so it’s been the practice, although certainly
not a constitutional requirement, for the
House to take a vote of the full House before
beginning an impeachment inquiry.
WILLIAM BRANGHAM: So there’s no precedent
for it, but this — I mean, there’s precedent
for this, but there’s no requirement for it.
Let’s just say the House were to hold this
vote and formally call this an impeachment
Is there precedent then for the White House
or the subject of impeachment to say, I’m
JAMIL JAFFER: The challenge is, typically,
in this scenario, when they when they vote
to pass a resolution to initiate an impeachment
inquiry, there are also procedural rules in
place which provide a certain amount of due
process to the potential target of the impeachment,
in this case, the president of the United
States, including the right to call witnesses,
the right to cross-examine, the right to be
present or have counsel president at hearings
and the like.
And that’s normally the process, in part.
And it also gives process, by the way, procedural
rights, to the minority, typically so that
the majority is not accused partisanship or
doing something inappropriate.
So that’s generally the ticktock.
And so you see the White House saying, this
is illegitimate, it’s inappropriate.
But they’re basing that on practice, not on
a legal requirement.
WILLIAM BRANGHAM: I see.
So that was the other argument that the White
House has been making, is that, you’re not
letting us do all of the things that we think
of as traditional due process.
But wouldn’t those — in the normal procedure,
wouldn’t those happen in the Senate, meaning
that the House votes to impeach or not, and
then, if impeached, the president takes his
case, so to speak, to the Senate, where the
due process practices would occur?
JAMIL JAFFER: No, that’s exactly right, William.
And it’s a point that a lot of people have
been making out in the media over the last
24 hours after we saw this letter, that, look,
the impeachment proceeding in the House is
like a prosecutor doing an investigation,
and then bringing charges before the grand
And then, eventually, the trial comes, and
that’s in the Senate, where you have a jury,
in this case, 100 senators, presided over
by the chief justice.
And that’s where the president or the person,
the target of impeachment, gets to present
Now, that is — that is true that that’s — those
are the analogous proceedings in a — in a
But, of course, an impeachment isn’t a criminal
It’s a quasi-judicial proceeding.
It’s a political matter.
And, typically, because it’s political and
involves two co-equal branches of the government
sort of going really head to head, it’s been
the practice of the House to give unusual
protections in the charging process to the
target, because they recognize that if, in
fact, the House is to vote articles of impeachment,
even if the president isn’t convicted, that
that has huge effects on the presidency itself
and the person in the office of the president.
So they want to ensure also that they’re not
being seen as partisan, so they give rights
that they wouldn’t otherwise have to, to the
other side in the minority in the impeachment
inquiry, and to the target of the impeachment,
in this case, the president.
WILLIAM BRANGHAM: I know we say that this
is an inherently political process.
And, sometimes, in Washington, D.C., especially,
that can be used as somewhat of a slur.
But that’s really by design in this case,
I mean, the framers could have said, judges
only handle impeachment.
But, in this case, they knew, we are going
to let the political actors, the House and
the Senate, deal with this.
JAMIL JAFFER: No, that’s exactly right.
And it’s actually also a reason why we’re
likely to not see judges get involved in this
process, because, as we watch this process
go forward, you hear a lot of people saying,
well, what happens if the president doesn’t
Can Congress go to — can the House go to
the courts and try to get an enforcement of
That’s a possibility.
That may happen.
But what if the president just refuses to
do anything and refuses to comply with the
current inquiry, right?
One might say, well, the courts are likely
to stay out of it, because this is a quintessential
political question, that is, a question that
the Constitution texturally commits to the
coordinate branches, the political branches
of the government, because — because the
Constitution, our founders, our framers didn’t
intend for this process to be in the courts.
They intended for it to be in the hands of
the House on the one hand and in the Senate
for the trial and the ultimate decision on
And they didn’t define, by the way, what they
meant by high crimes and misdemeanors.
It’s a term in the Constitution.
It definitely had a meaning at the time they
wrote it, but it wasn’t defined anywhere in
And there’s no — there’s no specific standard
in the Constitution by which the House or
the Senate must judge the president.
WILLIAM BRANGHAM: All right, Jamil Jaffer
of George Mason University, thank you very
much for being here.
JAMIL JAFFER: Thanks, William.