The President’s counsel, Pat Cipollone, sent a letter to the House of Representatives objecting to the impeachment inquiry. It is a five page letter which recounts the many perceived problems with the House investigation. It is signed by Pat Cipollone as counsel to Pres. Trump. But, it appears to have also been edited heavily by the client. In every lawsuit, the client wants to write a letter like this. It contains over-the-top language like this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.” See The White House letter here.
The letter does point to perceived problems and points to caselaw for authority. For example, the letter points to the decision in Watkins v. United States, 354 US 178, 188 (1957), a decision by Earl Warren regarding the House Committee on Un-American Activities. It is a very well-written decision which traces the history of Congressional contempt to Parliaments during the anti-Catholic crusades in 1700 England. The letter insists the House conform to recognized standards of due process.
What was the Watkins decision about? The case concerned a witness, Mr. Watkins, who appeared in front of the Un-American Committee. The witness refused to answer certain questions. The Supreme Court decision found the refusal to answer lacked adequate basis for contempt. The witness refused to answer questions about any persons who had formerly belonged to the Communist party, but who had left the party. He was willing to answer and did answer questions about his involvement with the Communist party. He also answered questions about persons who were still involved with the Communist party. But, he refused to answer questions about persons who had once been party members, but had quit. For that refusal, the committee and the House referred him to the U.S. Attorney for prosecution for contempt of Congress. In Chief Justice Warren’s decision, the Supreme Court found that contempt failed to conform to due process requirements. See the Watkins decision here.
So, yes, the Watkins decision requires Congressional investigations to conform to the Due Process clause of the Fifth Amendment. The decision mentions these particular requirement for due process: “Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.” Watkins, 354 US at 188. Mr. Cipollone’s letter correctly nots the decision recounts the due process requirements of House investigations.
But, the problem here is that the White House has flat refused to allow witnesses to appear. It is difficult to be compelled to give testimony against oneself if one is not actually testifying. So, claiming your witnesses are being abused rings hollow when your witnesses do not actually appear.
Mr. Cipollone’s letter also notes that an accused has the right to call his/her own witnesses, present evidence and respond to one’s accuser. That is indeed fundamental due process. But, the problem is that so far, this is still just an investigation. There is no right to present evidence to an investigator or to an investigative body. Presentation of evidence and witnesses occurs at the trial stage, not during the investigatory stage. Mr. Cipollone, an experienced trial lawyer, doubtless knows this.
As simple legal reasoning, Mr. Cipollone’s letter makes no sense. And, that is what happens when a lawyer allows the client to edit a letter.