President Donald Trump’s lawyer Rudy Giuliani stuck his foot in his mouth again on Thursday when he dared to defend Trump’s obstruction of Congress by claiming that he’s only doing what George Washington did.
As the House conducted an impeachment investigation in 2019, the various committees issued subpoenas seeking documents related to Trump’s phone call with Ukraine President Zelensky to determine whether or not Trump abused his power by asking for a “favor” in exchange for military aid that Congress had appropriated.
Trump froze the aid after the phone call in an effort to force Ukraine into opening a sham investigation against former Vice-President Joe Biden with the aim of hurting him ahead of the 2020 Election.
Of course, Trump refused to provide documents, including a complete transcript of the phone call. Based on what they did receive, however, combined with damning witness testimony, the House determined that Trump abused his power. And because he refused to release the documents requested, the House charged him with obstructing Congress as well.
Trump’s defenders have been claiming ever since that the president is protected by executive privilege and have been excusing his obstruction by claiming that Washington, America’s first president, did something similar by refusing to hand over documents related to Jay’s Treaty.
On Thursday, Giuliani repeated the same defense.
Democrats act like executive privilege was invented by @realDonaldTrump.
Either their ignorance or perversity ignores the historical reality that was created when George Washington refused to turn over any doc’s underlying the Jay Treaty…
— Rudy Giuliani (@RudyGiuliani) January 23, 2020
…In 1787 members of the House threatened to impeach Washington.
However, in those days House members respected the constitutional restrictions and the attempt was reversed.
— Rudy Giuliani (@RudyGiuliani) January 23, 2020
First, it should be pointed out that Washington did not become president until 1789. It should also be noted that Jay’s Treaty was ratified in 1795. In 1796, the House requested documents related to the treaty and Washington refused to comply.
However, Washington reasoned that only the Senate could see documents containing sensitive diplomatic information seeing as how the Senate alone is given constitutional authority over the ratification of treaties. Washington did provide the requested documents to the Senate.
Furthermore, Washington himself wrote that the only way he would release the documents to the House is if they started an impeachment proceeding.
“It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed,” Washington declared.
So, since the House had started an impeachment proceeding when it issued subpoenas for the documents, Trump could not assert executive privilege, a point the Supreme Court made clear in United States v. Nixon during the Watergate scandal.
Clearly, Giuliani needs to brush up on his history and constitutional law because he is flat wrong to compare Trump to Washington. Executive privilege does not apply in impeachment cases and Washington himself said so in 1796. Any so-called originalist or constitutional constructionist Republican would have to agree or be a complete phony.
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