House Speaker Nancy Pelosi (D-San Francisco) and Rep. Adam Schiff (D-Burbank) hold a press conference on Oct. 2, 2019 on the impeachment inquiry into President Trump.

House Speaker Nancy Pelosi (D-San Francisco) and Rep. Adam Schiff (D-Burbank) hold a press conference on Oct. 2, 2019 on the impeachment inquiry into President Trump. (Kirk McKoy/Los Angeles Times/TNS)

WASHINGTON - President Donald Trump set up a constitutional confrontation that is forcing House Speaker Nancy Pelosi to decide how to approach a potentially long court battle over witnesses and records and when to push for a House vote on impeachment.

Pelosi will hold a conference call Friday with the full House Democratic caucus, following the White House declaration it would block any cooperation with the investigation that Democrats say they want to wrap up this year.

Trump's defiance has frozen the impeachment inquiry in place, at least temporarily, with the administration resisting subpoenas and refusing to allow depositions, even behind closed doors. Republicans say the process can't proceed until the full House votes to formalize an inquiry, although legal scholars say this isn't a constitutional requirement.

For now, Democrats haven't settled on legal or tactical responses to the White House, according to Democratic lawmakers and leadership aides. Democrats will also have to decide whether to take the administration into an uncertain court fight to enforce subpoenas, and when to deliver the actual articles of impeachment.

Total resistance from the White House could hinder Democratic efforts to gather evidence, although it could also bolster their case that Trump is acting lawlessly. Pelosi, D-Calif., warned that continued stonewalling from the Trump administration could be the foundation for an additional article of impeachment for obstructing Congress.

The State Department blocked the U.S. ambassador to the European Union, Gordon Sondland, from giving a deposition to the three House panels leading the inquiry. Republicans were caught off guard, expecting that he would be a favorable witness since he's a political donor and close adviser to Trump.

Democrats are no longer expecting to hear testimony that had been scheduled for Friday from Marie Yovanovitch, who was recalled by Trump as U.S. ambassador to Ukraine. Committee chairmen decided - given the hard-line White House position - that a subpoena to Yovanovitch would do more to protect her legal options than asking her to defy the administration and show up without being under congressional subpoena.

Several constitutional scholars on Wednesday dismissed White House Counsel Pat Cipollone's arguments that the impeachment inquiry is illegitimate because it hasn't been formalized by the full House. Cipollone said the president should be allowed process protections, such as the ability to cross-examine witnesses, even though impeachment is a political, not a judicial process.

"The Constitution nowhere says, much less requires, either chamber of Congress to approve resolutions, of any kind, before the committees of either or both chambers conduct investigations, issue subpoenas, take testimony, and gather evidence," said Michael Gerhardt, a law professor at the University of North Carolina.

Harvard University professor Charles Fried, who was solicitor general in Ronald Reagan's administration, called Cipollone's letter to Pelosi and the three committee chairmen leading the impeachment inquiry "ignorant nonsense."

Fried and other legal experts said the letter itself could be grounds for an article of impeachment based on obstruction of Congress.

Both sides are making political as well as legal calculations. Several polls released since Pelosi announced the impeachment inquiry on Sept. 24 show growing public support for that action, though Americans remain split over whether Trump should be removed from office. Republican voters still strongly back the president, keeping GOP members of Congress lined up behind Trump.

Tom Campbell, a law professor at Chapman University and a former Republican congressman from California, said the decision to have the full House vote on an impeachment inquiry is a political decision rather than a legal one.

Pelosi may be resisting that step for now because "she does not want to make her moderates vulnerable next November, until she has specific articles of impeachment ready," Campbell said. "This allows those members to say they are simply studying the evidence and have not reached any hasty conclusions."

"Preliminary votes to start impeachment proceedings have, thus, always been political acts - not constitutionally compelled acts," he said.


(With assistance from Steven T. Dennis.)

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