House Speaker Nancy Pelosi’s unfairness is delaying the cause of ascertaining the truth at the heart of the Trump-Ukraine controversy.
President Trump has at least a reasonable case to make in ordering Gordon Sondland, the U.S. ambassador to the European Union, not to testify on Capitol Hill about Trump’s policy toward Ukraine. Pelosi has not called for a formal vote to open an official impeachment inquiry, and because she has adopted no formal rules to govern such a probe, the executive branch’s claims of “privilege” (or quasi-privilege) are stronger than they would be otherwise.
Any House impeachment probe is not a court case, but it has elements in common with a trial, or at least with a grand jury proceeding. Without a formal opening of the inquiry and without clear rules, the target of the probe (Trump) is being denied both clarity and appropriate notice, both of which are necessary for a fair defense. In such circumstances, he has both a moral and arguably a greater legal right to refuse executive branch cooperation. Without an official vote for an inquiry and without official rules providing at least something akin to trial-defense rights, this is less an equitable proceeding than it is a star chamber.
Meanwhile, it is axiomatic that a president’s privilege of confidentiality is strongest when international diplomacy is involved. (Suffice it to say that this axiom is derived quite rationally from the Constitution, without taking space here to detail those derivations.) If a president can argue that House proceedings are so amorphous as to amount to ordinary House oversight, rather than a quasi-criminal probe, his de facto assertion of privilege remains strong.
Yet, as the Supreme Court ruled in U.S. v. Nixon, the privilege is not absolute. Granted, the Nixon case involved judicial review, not congressional review, but the principles involved are similar. The more formally and logistically a congressional probe is conducted procedurally such as a criminal trial, the greater the weight of Congress’s power to pierce the veil of executive branch confidentiality involving a State Department official.
All of which leads us to the situation involving Sondland. Wisconsin Sen. Ron Johnson, a Republican, has said Sondland told him that the administration directly tied Ukrainian aid to the president’s desire for an investigation into the Bidens. The more explicit this link, the more obviously illegal it would be. Congress has good reason to want and indeed expect Sondland to testify about all this. The information sought is at the very heart of the possible case for impeachment and removal of Trump from office.
Yet, if Pelosi insists on her kinda-sorta impeachment where she makes up the rules as she goes, the president can make a reasonable claim not just of ordinary confidentiality rights vis-à-vis diplomacy but also that his procedural defense rights are being abused. Pelosi thus is setting up a scenario that could involve a lengthy battle, both political and in court, to sort all this out. Rather than expediting the process, which of course would be in the public interest, Pelosi’s unjust, ad hoc approach makes it far more likely that this national nightmare will continue longer and be even messier.
The public has the right to hear what Sondland knows. To serve the public interest, Trump should allow him to testify, but Trump has legitimate, self-protective reasons not to do so. In order to serve the public interest, Pelosi ought to do as much as she can to ameliorate Trump’s reasonable concerns, so that Sondland’s testimony can go forward.
