STEVE INSKEEP, HOST:
President Trump's defense against impeachment has two closely related parts. One is a legal strategy, and the other is a political strategy. Lately, the politics have not been going the president's way. Analysts at FiveThirtyEight say multiple polls show support for impeachment rising; it's up to about 49% of Americans in favor. A Fox News poll showed 51% of Americans favor impeachment and removal.
Closely related to the political strategy is the legal response. And to analyze what the White House is doing, we've called Tim Flanigan, who was deputy White House counsel under President George W. Bush, also a former assistant attorney general. Good morning, sir.
TIM FLANIGAN: Good morning.
INSKEEP: OK. So the current White House counsel sent that letter the other day saying impeachment is illegitimate and that the White House is just not going to cooperate. What are the advantages of that legal strategy?
FLANIGAN: Well, I think what the White House counsel is trying to do is set the stage. He is a very experienced litigator, and he knows the importance of preparing the case to sort of face his direction. And what he's done is he's called out some of the missteps, the overreaching on the part of the House Democrats, by structuring this particular impeachment process in a way that is stacked against the president - you know, denying the president the right to cross-examine witnesses and other basic protections that I think Americans would recognize as being sort of fundamentally fair...
INSKEEP: Yeah. But the...
FLANIGAN: ...In any proceeding.
INSKEEP: But let's be clear because we've discussed this on the air. I mean, there are House hearings in an impeachment inquiry that are roughly analogous to a grand jury examination. The president doesn't get to cross-examine witnesses or name witnesses before a House of Representatives oversight hearing, which is what this is at this point. That comes later in a Senate trial, right? I mean, this is a made-up argument, is it not?
FLANIGAN: No, I disagree. I think that the past precedent here is that the presidents who have faced this type of inquiry have been given that right. The analogy to a grand jury proceeding is really flawed. This is an important part of an overall process that's set forth in the Constitution. It's deliberately cumbersome, and it's supposed to provide protections at every stage. And those protections are important because what's at stake here really is, as the White House counsel points out, you know, over - the removal of a president and overturning the results of an election. The president is our only executive branch official who's elected directly by the people. And it's important that there be protections such that - so that the process doesn't appear to be a railroad - a railroad operation.
And I think that's important from the standpoint of the House of Representatives, as well. If they - if they proceed with the process that they have outlined that does disadvantage the president, I think they will find that their process lacks the legitimacy that they need to convince a supermajority of the Senate, let alone the...
INSKEEP: Well, this...
FLANIGAN: ...Supermajority of the American people that there - that any act of impeachment is - is appropriate.
INSKEEP: Now, this is really interesting because you have - we talked about the politics and the legality. The House does have the sole power of impeachment. I guess that gives them a lot of power to set the rules. But I think I hear you saying that Pat Cipollone, the White House counsel's lawyer, is part of a negotiation and, because this is a political process that you want Americans to see as fair, the White House does have some leverage to get those rules improved a little bit.
FLANIGAN: That's correct. And I think I saw this morning the president had said that - that he would cooperate with the impeachment inquiry if it were done - if the points that were raised in Pat Cipollone's letter were taken into account, namely that he was given those fundamental protections...
INSKEEP: Yeah.
FLANIGAN: ...And the process was made fair.
INSKEEP: He did say that and then said it depends. Former Deputy White House Counsel Tim Flanigan, thanks for your insights. Really appreciate it.
FLANIGAN: Oh, you're quite welcome. Have a good day. Transcript provided by NPR, Copyright NPR.