To survive the riskiest battle of his presidency, Trump is skipping the legal minutiae and pulling out his fighting gloves.
For a president steeped in marketing and branding, impeachment offers new terrain on which to run the Trump playbook of defining an issue, waging war and then never backing down.
And the White House’s new strategy of treating impeachment primarily as a political argument puts President Donald Trump directly into his comfort zone.
Trump allies are the first to admit it’s not a strategy born out of any major legal thinking. Instead, it’s a bet Trump can prevail through his own aggressive public messaging campaign and the help of the Republican-controlled Senate, which ultimately would have to vote on the president’s fate following an impeachment trial.
George Washington University law professor who has participated in prior impeachment cases before Congress. “Many of the latest positions laid out in the letter undermine the White House’s best legal arguments.”
The White House letter to House Speaker Nancy Pelosi, sent on Tuesday night, said the administration will not cooperate in any way with the Democrats’ investigation. The letter argued the Democrats’ inquiry was invalid because liberals have long sought to discredit Trump since his election in 2016, and this was only the latest salvo.
Democrats launched the inquiry after a whistleblower complaint and White House summary transcript showed Trump asking the Ukrainian president to investigative his political rival ahead of the 2020 presidential campaign, a move Democrats say undermines national security and foreign interference in U.S. elections.
“The lawyers are dealing with a client who wants to see this type of aggressive and, frankly, reckless public banter,” Turley said, referring to the strong rhetoric laid out in that White House letter. “There has never been any evidence of the legal team being the driving force behind the White House’s public statement or strategy. At some point, they will have to mount a legal defense.”
Hiring former Rep. Trey Gowdy as an outside legal adviser was another sign of the political dimensions shaping the White House fight. While Gowdy served as federal prosecutor and district attorney in South Carolina, he’s also known for his partisan and aggressive leadership of the House Oversight Committee and his Fox News commentary.
White House officials expect Gowdy to play the role of made-for-TV surrogate during the impeachment fight, offering political advice, communication skills and “trench warfare” expertise, a senior administration official said. The president was excited he was joining the team, a second aide said.
Among Trump allies and White House officials, there’s also talk of Gowdy potentially managing the White House’s war room to steer the political and communications response, a Republican close to the White House said.
But Gowdy is not expected to be brought into the inner circle of the White House counsel’s office, over which top attorney Pat Cipollone has kept a tight grip.
“The counsel’s office wants to concentrate the flow of information as much as possible. They keep a narrow circle on this. Lawyers do not like others meddling,” said the Republican close to the White House.
In addition to the roughly 40 lawyers within the White House counsel’s office, the president is also receiving legal and communication advice from Rudy Giuliani and Jay Sekulow, the law firm of Consovoy McCarthy, and Marc Mukasey, a criminal trial lawyer based in New York, according to a second Republican close to the White House.
These attorneys maintain that the Democratic impeachment inquiry amounts to political theater and an abuse of process.
That argument also conveniently gives Senate Republicans an out, said one of the Republicans close to the White House. “The senators will not have to address the merits of the impeachment investigation. All they will have to say is that this is a charade. Why should I spend a moment on the merits?” this person said.
White House officials and Trump allies argue the administration’s letter to the House does contain legal arguments, despite any skepticism from constitutional law experts.
Officials say the White House has not received due process during the impeachment inquiry, an argument laid out in detail in the letter, including the ability to cross-examine and call witnesses and access evidence and transcripts of testimony.
“Let me just say: The Republican Party and president has been treated extremely badly by the Democrats, very unfairly, because they have a tiny margin in the House. They have eviscerated the rules. They don’t give us any fair play,” Trump told reporters on Wednesday at an event in the Roosevelt Room of the White House. “It is the most unfair situation people have seen.”
Trump added that the White House would cooperate with House Democrats if they held a formal impeachment vote and “if they give us our rights.” He also said the impeachment inquiry will likely end up being decided by the Supreme Court.
Republican lawyers and Trump allies overwhelmingly believe the Republican-controlled Senate will decide the fate of the Trump presidency.
For now, the White House is leaning into its aggressive political strategy of stonewalling the Democrats. They hope the approach will slow the Democrats’ inquiry and sap its momentum, so much so that Americans either become confused about the procedural details or lose interest. Polling now shows a majority of Americans favor the impeachment proceedings.
“What legal strategy?” said a third Republican close to the White House. “It’s a delay strategy to force the Democrats to impeach on procedural grounds of obstructing the investigation. There won’t be a court battle because the Democrats have no need to go to court, they will impeach for failing to provide documents.”
Judge Mehta’s questioning left little doubt that he was deeply skeptical about the arguments from Mr. Trump’s legal team, led by William S. Consovoy.
Mr. Consovoy essentially argued that the Constitution does not give Congress the power to investigate potential presidential corruption because determining whether someone broke the law is a function reserved for the executive branch. But Judge Mehta pointed out that under that logic, many famous historical congressional oversight investigations were illegitimate.
“Is it your view that the Whitewater and Watergate investigations were beyond the authority of Congress?” the judge asked, referring to congressional inquiries of the Nixon and Clinton presidencies. “They were looking at violations of criminal law.”
Judge Mehta, a 2014 appointee of President Barack Obama, also said he saw no need for further briefings or arguments because the dispute turned on a question of law, and the Constitution does not permit Mr. Trump’s legal team to compel the House to turn over internal documents as evidence. He said he would let lawyers submit any additional materials they wanted through Friday, then he would make his decision.
Any ruling by Judge Mehta is likely to be only the beginning of the case. Both sides acknowledged that an appeal was virtually certain, and Mr. Consovoy asked the judge, if he does rule against Mr. Trump, to stay his ruling pending appeal so that the subpoena deadline for Mazars USA, the accounting firm, is not set off before the litigation fully plays out.
But Douglas Letter, the general counsel for the House, asked the judge not to stay any such ruling — or, if he does, to make it conditional on the Trump team expeditiously filing an appeal. The larger threat, he said, was that the Trump team could use the courts to run out the clock on this Congress, thwarting its ability to perform oversight.
“Any delay undermines the House’s ability to do what the Constitution allows it to do,” Mr. Letter said.
The judge’s comments and questioning suggest he is likely to agree with the House that the information it is seeking is within its legitimate oversight roles, rejecting the Trump team’s argument that the subpoena is an illegitimate effort to obtain political dirt without any tie to Congress’s function of deciding whether to enact new laws.