In some of the most powerful argumentation of the impeachment trial, White House lawyer Patrick Philbin went a long way towards dismantling the Democrats’ argument against Trump on Monday by using the Democrats’ own words against them. Giving a masterclass in defense strategy, Philbin pointed out that the second impeachment charge – “Obstruction of Congress” – was a nonsense article that did not actually address the position of the White House.
Philbin began by noting that the White House had blocked congressional subpoenas, yes, but never put forth the argument that President Trump had the blanket right to defy Congress at will. Instead, he said, the White House had rejected subpoenas for three reasons, all of which have the backing of reason, logic, law, and common sense. One, the House sent the subpoenas prior to holding a vote to authorize an impeachment inquiry. Two, the Justice Department’s Office of Legal Counsel advised the president to reject any subpoenas targeting top presidential aides – advice that is based on Supreme Court precedent. Three, House Democrats forbade defense counsel from attending the depositions, so Trump and his lawyers had no way of exercising executive privilege during questioning.
Philbin said that the Supreme Court had already ruled that “to punish a person because he has done the law plainly allows him to do is a due process violation of the most basic sort.”
“This is a principle that, in the past, in the Clinton impeachment, was recognized across the board — that it would be improper to suggest that asserting rights is an impeachable offense,” Philbin said.
Philbin went on to quote an assortment of individuals – all of whom support the current impeachment – singing a much different tune during the Clinton impeachment.
People like Harvard Law Professor Laurence Tribe: “The allegations that invoking privileges and otherwise using the judicial system to shift information is an abuse of power that should lead to impeachment and removal from office is not only frivolous, but also dangerous.”
People like Rep. Jerry Nadler: “The use of a legal privilege is not illegal or impeachable by itself.”
People like Sen. Chuck Schumer: “To suggest that any subject of an investigation, much less the president, is abusing power and interfering with an investigation by making legitimate legal claims using due process and asserting constitutional rights is beyond serious consideration.”
We’re pretty well past the point where Democrats can claim this is anything other than a partisan scam to undo the 2016 election, but damn…it’s still powerful to stand up in front of the Senate and hang them with their own arguments. Nice work, Mr. Philbin.