Laurence Tribe

Opinion contributor

The White House’s blanket stonewalling of the House impeachment inquiry into President Donald Trump isn’t just deeply troubling or further indirect evidence of the president’s underlying abuse of public power for private gain. It signals another clear ground for his impeachment: obstruction of Congress.

Article III of the Nixon articles of impeachment provides the closest precedent to what Trump did here: He directed the State Department to prevent Gordon Sondland, the U.S. ambassador to the European Union, from testifying about what his texts revealed to corroborate the whistleblower complaint about a scheme to withhold military aid in order to extort Ukraine into meddling in the 2020 election. The White House counsel followed up by telling House leaders there would be no cooperation with an inquiry he called illegitimate and unfair.

The House Judiciary Committee in 1974 identified President Richard Nixon’s direction of systematic defiance of congressional impeachment inquiries by his administration as an obstruction of the constitutional role of Congress and thus a violation of the president’s duty faithfully to execute the laws. Such a charge is manifestly warranted against Trump today.

Clearly impeachable conduct

This is far from the first time Trump has directed administration officials not to comply with a congressional request or subpoena. Ordinarily, he has relied on the pretext of a misapplied or nonexistent executive privilege or immunity as justification. Such an excuse would be wholly inadequate here, given the absence of any plausible legal argument for any such privilege, and the settled principle that impeachment proceedings put Congress in a position to claim that the public’s need for full information overcomes any arguably applicable evidentiary shield.

Here, the obvious public value and importance of Ambassador Sondland’s testimony, especially in light of reports that he called the president between the two most pertinent text messages, plainly carries the day. But even if that weren’t the case, the Trump administration’s stonewalling becomes constitutionally indefensible where the underlying conduct — pressuring a vulnerable ally by using the president’s powers over foreign and military policy for purely personal gain — could not be more clearly impeachable.

Given the hopelessness of those standard arguments, Trump and his attorney general, William Barr, have turned to an even more insidious justification: denying the broader legitimacy of the entire House impeachment inquiry and branding it a “kangaroo court.”

Desperate 'kangaroo court' gambit

Such an argument is wholly without constitutional merit: Article I, Section 5 plainly provides that each House “may determine the rules of its proceedings,” something the House has done here by empowering individual committees to inquire into whether the president has committed impeachable offenses, and to pursue those inquiries with subpoenas voted by the respective chairs of those committees without the need for any vote by the full house. No court attentive to the most elementary separation of powers principles would seriously contemplate permitting the White House to intrude into the internal affairs of a coequal branch.

It is not for the president to decide what makes the impeachment inquiries of the House Intelligence Committee chaired by Rep. Adam Schiff sufficiently authorized to carry the imprimatur of Congress. That, to put it bluntly, is none of the president’s business. Nor is his self-interested characterization of the Schiff inquiry as a “kangaroo court” entitled to even the slightest respect from anyone.

It is tempting to say that this latest desperate gambit simply illustrates the sad truth that little if anything this president says or does can be trusted, and that it is only fear of further exposure of the guilty truth that could possibly explain a line of argument that any court worthy of the name would quickly dismiss as meritless. But one needn’t go that far to conclude that the House clearly cannot permit such brazen obstruction to carry the day. It should instead forge ahead with articles of impeachment now, independent of whatever further detours to court it might deem necessary and proper to pursue facts that the American people are entitled to know.

Move fast on impeachment articles

The House is overwhelmingly likely in the end to prevail in enforcing in federal court the various subpoenas it has issued — or is about to issue — to uncover the facts about the president’s corrupt dealings with foreign governments to interfere with the forthcoming presidential election. But judicial proceedings, even expedited ones, move at best “with all deliberate speed,” by which lawyers really mean “at a stately pace.”

Putin is a big winner:Russia's 2016 chaos bomb defines the Trump presidency, right up to Ukraine and Syria

The three-year and still ongoing efforts to gain access to President Trump’s federal income tax returns perfectly illustrate how effective even a legal team barely able to formulate a coherent pleading can be at stalling judicial proceedings — despite a federal statute dating to the 1920s that makes handing over such tax returns mandatory at the request of the House Ways and Means Committee chair.

Testing the House’s dormant power of inherent contempt to take Trump’s cronies into custody (or subject them to escalating fines) until they testify or produce the documents demanded, while an appealing thought and likely within Congress’ constitutional prerogatives, is likewise likely to spawn legal challenges and further delay. Neither the House, nor indeed the country, has that time to spare.

Nor does moving forward with articles of impeachment for the “high crimes” that are already plainly evident mean letting Trump and his gang escape having to testify or produce documents pursuant to congressional subpoenas either. As Schiff told The Washington Post’s Greg Sargent, Congress can continue to issue new subpoenas and enforce existing ones in the courts while simultaneously drafting and voting on articles of impeachment for impeachable offenses already clearly demonstrated.

Vote on charges now, add more later

Further, since nothing in the Constitution limits the House to a single set of articles, pursuing impeachment charges now for Trump’s essentially confessed substantive abuse of power and his brazenly open obstruction of Congress doesn’t foreclose the prospect of future articles as additional information comes to light. Indeed, if anything, drafting and voting on articles of impeachment sooner rather than later should prove a major boon to Congress’ ongoing investigations, further strengthening its already overwhelming case to enforce its subpoenas in federal court, escalating the pressure on the White House and potentially inducing other individuals with information bearing on this administration’s wrongdoing to come forward, and catalyzing an even greater shift in public opinion.

Editorial Board:Ukraine evidence piles up on Donald Trump trading arms for political dirt on the Bidens

The impeachment power was envisioned by the Founders as an emergency mechanism, one to be deployed in the event of grievous and continuing harm to the nation caused by an abuse of the power entrusted by voters to a high officer of the republic. Donald J. Trump is Exhibit A of what those who designed our Constitution had in mind. They believed they had provided the device we might one day need to preserve constitutional democracy. Yet with each day’s passing, as the walls close in ever more tightly, Trump grows ever more desperate and dangerous.

His more than shameful capitulation to Turkey and abandonment of our Kurdish allies is a case in point. Indefensible on its own terms even though not in itself impeachable, it illustrates what this cornered man might do to distract as the constitutional system blocks his every available exit. Every day he’s allowed to stall, evade justice and remain in power, the country is in still graver danger.

The House must move expeditiously to vote for articles of impeachment based on President Trump’s already evident “high crimes,” including abuse of power and obstruction of justice, even as it pursues the truth through relentless investigation that resorts as needed to the still independent judiciary.

Laurence H. Tribe is a professor of constitutional law at Harvard Law School and co-author of “To End A Presidency: The Power of Impeachment.” Follow him on Twitter: @tribelaw