Wednesday, December 11, 2019

By sweeping aside the Russia scandal and Mueller report, Democrats are in the process of blowing it on their efforts to impeach President Donald Trump

Democrats announce articles of impeachment 

House Democrats yesterday produced two articles of impeachment -- one for abuse of power and one for obstruction of Congress -- against President Donald Trump. In so doing, Democrats focused solely on issues related to Ukraine, with no article based on Russian election interference and the Mueller report. In essence, impeachment will focus on the alleged misconduct of President Trump, while ignoring the much more expansive and serious misconduct of Candidate Trump.

Is it a mistake to give Trump a pass on the Russia scandal? A number of commentators already are crying, "Yes" -- and we agree with them. We also suspect this is the first major sign that Americans will have to endure four more years of a Trump White House. Whether the country can survive that is anyone's guess, but our suggestion is, "Brace yourself."

A Salon article by Andrew O'Hehir, dated 12/6/19 (last Friday) seemed to presage yesterday's events, with the headline "Are Democrats Blowing Trump's Impeachment?" Writes O'Hehir:

[Last] Thursday’s announcement by House Speaker Nancy Pelosi that Democrats are ready to vote articles of impeachment against President Trump — presumably on the narrowest possible terms, after a constrained and foreshortened process — is hardly surprising. It is, however, disheartening. Why they would even consider moving to a floor vote on impeachment without doing whatever is necessary to compel testimony from John Bolton, who is now a private citizen and has always been a blast-hardened neocon Republican, and who is clearly eager to roast Donald Trump’s gizzard on a fork and then eat it, is profoundly baffling. 
Or maybe, sadly, it isn’t. So far, this spectacle confirms my sense that the Democratic Party is strikingly ill-prepared for the historical role it ought to play in this moment of small-d democratic crisis. Driven as usual by fear, excessive caution and a morbid fascination with identifying the middle of the middle of the political middle (and then veering slightly to its right), the Democrats are entirely likely to screw things up, whether morally or tactically or politically or all at once.

O'Hehir, in fact, suggests Democrats already have botched it by settling into a "back to normal" political stance that has placed Joe Biden as a frontrunner who quite possibly could lose to even an impeached Trump in 2020:

Actually, the Democrats have already screwed it up. Let’s be clear that the Republican defense of Trump is completely incoherent, because there is no defense for his actions. But on a generic or abstract level, Republicans have floated halfway-valid concerns about the process of the impeachment inquiry and the motivations behind it — which Democrats have done little to dispel.

Republicans claim that Democrats have been itching for a pretext to impeach Trump since before he took office, and finally landed on one. That’s at least partly true, although the Angry White People Party is too consumed by paranoid delusions to understand the ways in which it is both true and untrue, and how those reflect the deep and wide schism within the Democrats over how to respond to the Trump era. Sure, Rashida Tlaib got elected in Detroit vowing to “impeach the motherf***er,” but a whole lot of other Democrats got elected while not talking about that at all, and explicitly or otherwise espousing the “back to normal” politics that have made Joe Biden the 2020 frontrunner all year long.

In case you haven’t been keeping score, there is no “normal” to go back to, history never flows backward and that whole approach is a dangerous delusion, as we will all learn the hard way soon enough. Biden would be a disastrous nominee and a terrible president, which is not to say there’s an obvious alternative who inspires immense confidence. But for our present purposes all that is a side issue, even if it’s also a yawning abyss beneath our feet.

Susan Hennessey, executive editor of the Lawfare blog and general counsel of the Lawfare Institute, argued in a piece published Monday (12/9/19) that Democrats should present articles of impeachment that have some breadth and are not too narrow. The headline: "The One Episode From the Mueller Report That Democrats Must Include in Impeachment."Writes Hennessey:

It would be a huge mistake not to include an article related to Mueller. It would be a mistake substantively and a mistake strategically. And the House Judiciary Committee’s recent hearings on impeachment show why.

The argument here is not that the House should include any and every plausible article based on conduct described in Mueller’s report. To the contrary, it would be unwise to be so overbroad. But there is a single, specific article of impeachment that should be included: one describing how the president of the United States obstructed justice by directing White House Counsel Don McGahn to create a false internal record denying that the president had instructed him to have Robert Mueller fired as special counsel.

For those who might be foggy on the details regarding McGahn, Hennessey provides a primer:

It’s worth briefly recapping the facts on this episode, as recounted in the Mueller report. In June 2017, following press reports that the special counsel was investigating Trump personally, the president ordered McGahn to have Mueller fired. McGahn prepared to resign rather than carry out the order, but he was persuaded to remain. Months later, in January 2018, the New York Times reported that the prior June Trump had directed McGahn to have Mueller fired. The president sought to have McGahn publicly deny this story, but McGahn refused to do so because the story was accurate in significant part. Approximately one week after the initial Times story, Trump told White House Staff Secretary Rob Porter to direct McGahn to create a record “for our files” denying the story and saying McGahn had never been told to fire Mueller. Trump suggested to Porter that if McGahn refused to write such a letter, Trump might fire McGahn. Porter communicated Trump’s request to McGahn, and McGahn refused to create such a record, reiterating that the story was true and that in June 2017 the president had, in fact, told him to have Mueller fired. Finally, the president directly pressured McGahn, in an Oval Office meeting, to refute the story and McGahn again refused. 
Susan Hennessey
Mueller determined that McGahn’s account of events was credible and that the weight of evidence supports an inference that Trump’s pressure on McGahn was not about countering a news report but, rather, was an effort to “deflect or prevent further scrutiny of [Trump’s] conduct towards the investigation.” Running through the three elements of statutes criminalizing obstruction of justice—an obstructive act, nexus to an investigative proceeding and corrupt intent—Mueller found that evidence supports the conclusion that the president’s conduct met all three. And critically, Mueller determined that there are no available constitutional defenses for the president here. Whatever the scope of Article II, it does not extend to directing the White House counsel to falsify records.

Numerous other Mueller-related articles could be included, but Hennessey explains why the McGahn episode cannot be swept aside:

While there are other compelling examples, the McGahn episode is the single strongest episode of obstruction of justice in the entire Mueller report. The facts of what occurred are established by clear evidence and are supported by both documentary records and the testimony of multiple White House officials. It is also an example of obstruction that is unambiguous on the law—it presents a clear criminal violation.

And that’s exactly why the Democrats would be nuts not to include this episode as an article of impeachment.

We know now that Democrats did not follow Hennessey's advice, and we suspect they -- and the country -- will pay a huge price.


Anonymous said...

It's a smart move to take a narrow focus. The public's eyes glaze over at mention of the Mueller report.

Anonymous said...

This is all about Nancy Pelosi. She's never wanted to do impeachment, and now that she has no choice, she's pushing for a slap-dash rush job. Poor leadership.

Anonymous said...

So, we spent all that time and money on the Mueller report, and nothing is going to come of it. Great use of taxpayer dollars.

Anonymous said...

The Russia scandal might be the worst crime against our country, and Pelosi is willing to let it go. Swell.

Anonymous said...

Who is more worthless, Nancy Pelosi or Robert Mueller?

Tough call.

Anonymous said...

Imagine you are a prosecutor with sufficient evidence to bring charges on murder, burglary, meth trafficking, domestic violence, and trespassing -- and you choose to go with trespassing and ignore the rest. That's what this is.

Anonymous said...

Pelosi takes a constitutional crisis and turns it into a political equation. Nicely done, Madame Speaker.

Anonymous said...

@8:19 am -- The Mueller Report paid for itself and then some:

legalschnauzer said...

There is a lot of good stuff in Susan Hennessey's Lawfare analysis that I could not work into the post. Here is some of it:

As a threshold matter, there is the important issue of Congress using its impeachment powers to enforce boundaries in the face of clear presidential criminality. Not including an article of impeachment on obstruction of justice is not a neutral decision, but rather an affirmative decision to tolerate what the president has done. Put simply, if Congress is willing to tolerate what should be intolerable, then that will have significant and negative long-term consequences for the office of the presidency.

Furthermore, focusing on the McGahn episode specifically would allow Congress to set boundaries on presidential criminality without needing to engage the complicated constitutional questions that other events recounted in the Mueller report might. The McGahn episode does not implicate plausible constitutional defenses. Articles related to the president dangling pardons to prevent witness cooperation or firing executive branch officials might implicate Article II, but directing subordinates to lie in internal records does not.

Likewise, the McGahn episode does not implicate questions of executive privilege. While McGahn is currently litigating on the basis of absolute immunity against testifying before Congress, he has already given Mueller a full account of what happened. And in releasing the Mueller report publicly, the Justice Department has effectively waived privilege. Congress also doesn’t face the risk here that it must consider in other litigation over immunity claims: Usually, there is the possibility that Congress might win, only to have the witness subsequently assert executive privilege, requiring additional time-consuming litigation. However, such future claims are unavailable to McGahn, who would only be asked to confirm that his testimony in the public Mueller report was true and accurate. And while additional testimony from McGahn, or Rob Porter, might be useful, it is not necessary in light of the clearly established record.

legalschnauzer said...

Here is more interesting stuff from Susan Hennessey, focusing in large part on Jonathan Turley's recent testimony before Congress:

Perhaps more importantly, the McGahn episode meets all of the elements of criminal obstruction of justice. It is not a “non-crime,” and Trump’s obstructive conduct falls well within the bounds of judicial interpretation of the criminal statutes. In fact, Turley himself acknowledged it represents the strongest evidence against the president. During the Judiciary Committee hearing, Republican Rep. John Ratcliffe asked Turley to address the “fatal flaws” of the obstruction analysis in the Mueller report, and Turley replied, “I’ve been a critic of the obstruction theory behind the Russian investigation because once again, it doesn’t meet what I think are the clear standards for obstruction. There were 10 issues that Mueller addressed. The only one that I think that raised a serious issue, quite frankly, was the matter with Don McGahn. There’s a disagreement about that.”

Turley noted that the attorney general and the deputy attorney general decided the evidence didn’t support a charge of obstruction, but he offered no reason for why either of those people should have the final say on interpretation when it comes to impeachment. What is significant is that even the Republicans’ own witness concedes there is a genuine issue as to whether the president has broken the law, based on a fully developed and largely uncontested factual record.

This is precisely why it is strategically important to include this article of impeachment: The shifting arguments Republicans have made to downplay Trump’s actions toward Ukraine no longer hold when it comes to the McGahn episode. If Republicans argue that the Ukraine record is insufficiently developed, they cannot do so when it comes to an obstruction article based on the Mueller report. Likewise, if they argue that the Ukraine allegations are not of a criminal offense, they cannot do so when it comes to the obstruction article. Instead, they will be left to either dispute the record as false—allowing Democrats to counter by demonstrating the strength of the evidence provided by Trump’s own staff and then further arguing for the importance of McGahn’s testimony—or instead attempt to argue, as Turley does, that somehow that record and the law don’t support the conclusion that the president obstructed justice. That is a debate Democrats should welcome.

Anonymous said...

" If you attempt to slay the King, make sure you kill him."
Steve Flowers Advice given to people who tried to slay Milton Mcgregor.
April 19, 2012