'Obstruction of Congress:' Trump's stonewalling becomes basis for impeachment

Richard Wolf | USA TODAY

Show Caption Hide Caption Why a president can be impeached and remain in office Impeaching a U.S. president might not be the be-all-end-all for their career. We explain why this is the case.

WASHINGTON – President Donald Trump is a big fan of the Constitution's Article II, which lays out the powers of the presidency. In his words, expressed in July, it gives him "the right to do whatever I want."

That interpretation led to another Article II on Tuesday: the second article of impeachment unveiled by the House Judiciary Committee, charging Trump with obstruction of Congress.

The document is both sweeping and specific. It accuses Trump of directing "the unprecedented, categorical and indiscriminate defiance of subpoenas.” It lists four federal agencies and nine administration officials, including acting White House Chief of Staff Mick Mulvaney, for following Trump's lead.

“In the history of the republic," it reads, "no president has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high crimes and misdemeanors.'"

It's a strikingly simple dispute, easy for Americans to understand, which was one reason Democrats added it to their case against Trump's efforts to solicit political help from Ukraine. They say he must comply with congressional subpoenas for documents and testimony. He says the impeachment investigation violates his constitutional rights.

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Most legal scholars and impeachment experts say Congress has the upper hand in this fight:

Congressional power

Congressional committees have the power to issue subpoenas for testimony and documents, and presidents are not immune from answering the call.

“Anybody subpoenaed by Congress is required to comply because that has the force of law,” said Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law. "I think it's going to be very hard to rebut."

Impeachment articles explained: And what happens next

Presidential privilege

A president can assert executive privilege to withhold information in the public interest, which usually leads to separation-of-powers battles in court.

"The president has the constitutional power to assert a privilege," said Josh Blackman, a law professor at South Texas College of Law in Houston.

The Nixon example

Contempt of Congress was Article III of President Richard Nixon's impeachment. He was accused of failing "without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas."

That article passed the House Judiciary Committee 21-17, making it the most narrowly approved of three articles of impeachment that ultimately led to Nixon's 1974 resignation.

“Going this route reflects the similarity between what President Trump is currently doing and what the Articles of Impeachment approved against President Nixon charged him with," Gerhardt said.

Read the text: The full articles of impeachment against President Donald Trump

Stonewalling

The response chosen by Trump and his White House counsel, Pat Cipollone, may have given Democrats no choice but to include the obstruction charge. In a series of letters, he told congressional committees the president and his aides would not comply with what he called a "partisan inquiry."

The president, Cipollone wrote in October, "cannot allow your constitutionally illegitimate proceedings to distract him and those in the executive branch from their work on behalf of the American people."

"No other president has ever stonewalled Congress entirely when it comes to impeachment," Harvard Law School professor Noah Feldman wrote for Bloomberg Opinion. "Even Richard Nixon, who famously withheld evidence and was, therefore, facing impeachment for obstruction of Congress, allowed some executive branch witnesses to testify and provided some documents to Congress."

Going to court

What's different this time is that Democrats are not trying to enforce their subpoenas by going to court, where the battle could last for months. They want a House impeachment and a Senate trial – even one that they lose – wrapped up early in the 2020 election year.

When the fight has landed in court, Trump has lost – such as when federal District Judge Ketanji Brown Jackson last month rejected claims of absolute immunity and ruled that former White House counsel Don McGahn must testify before Congress.

"Presidents are not kings," Jackson wrote. "This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."

Pathway of the impeachment process: How it works, where we are

Stressing a pattern

House Democratic leaders made a decision not to tack on additional articles of impeachment, such as bribery or obstruction of justice. But they made a point to stress Trump's alleged pattern of abuse.

"These articles perfectly charge the gravest possible crimes against the Constitution and stress that the conduct charged was 'consistent with' the president’s 'previous invitations of foreign interference' and 'previous efforts' to obstruct justice," Harvard Law School professor Laurence Tribe tweeted.

Fact Check: Combative impeachment hearing draws too-simple answers