Do not take my word for it, anti-Trump Republican pundit, Jennifer Rubin gets it, as evidenced by her editorial in the Washington Post, “The best evidence of obstruction of justice” here. Too many other pundits are clueless, as undoubtedly are many Democratic members of the House including, I hate to say it, Speaker Pelosi (not that I blame her, she has to depend on her committee chairmen to do their jobs). Yesterday, Corey Lewandowski revealed the smoking gun, the 18 ½ minutes of missing Nixon White House tapes. Yesterday was also the Obama/Romney debate moment redux. Obama saw the opening and seized it, “[p]lease proceed Governor.” When that moment occurred for the Judiciary Committee Democrats, they dropped the ball. Fortunately, it is not too late to pick it up.
In fairness to the Democratic Committee members, I only saw coming some of what I watched yesterday. For example, I expected the clusterfrack of a hearing because Democrats chose to grandstand instead of leaving more of the questioning to the staff (as was done in the Nixon impeachment hearings). Of course this let the Republicans grandstand as we. Let us hope Democrats learned their lesson. Some of what happened, I did not expect. I missed the fact that the selection of Lewandoski to open the new hearings was brilliant (or it could have been just incredible luck). On the surface, it appeared to me that Lewandoski was only a bit player in the Mueller investigations, particularly since he did not deliver Trump’s message to Sessions. If the objective was to convince the public that Trump committed high crimes and misdemeanors as laid out in the Mueller investigation, Lewandoski would not be the one I would pick to lead off with. Yes, his Mueller testimony is important to proving the crime, but really is only corroborating evidence of obstruction, rather than direct evidence. Given MSM failure to report on Trump and their love of the Dems in Disarray storyline, opening with him seemed to me to be a strategic mistake. Instead it was a masterstroke. I also did not anticipate what Lewandoski did say in his testimony. It also appears to me the Democrats broke the first rule of interrogating a witness: don’t ask a question you do not already know the answer to.
Lewandowski basically said, repeatedly, “The White House has directed me not to disclose the subject of any discussions.” They should have been prepared for that, done a 180 and hammered it home like Obama did to Mitt. Instead they let slip a golden opportunity and allowed chaos to overwhelm a perfect opportunity to move the polling on impeachment.
Rubin nails when she writes:
To be clear, the president has no authority to tell a witness not to show up. The president has no absolute immunity to prevent ex-aides from testifying. And he really has no basis for instructing a private citizen who never served in the White House to obstruct an investigation. And that is what he did, according to Lewandowski.
. . . .
At this point the most glaring obstruction, the most comprehensible, is the president’s obstruction of impeachment hearings. If a president can prevent the House from formulating impeachment articles, then the president has literally no constitutional restraint on his conduct.
Also from the same editorial:
Constitutional scholar Laurence Tribe weighs in: “Communications by the president to a crony asking the latter to carry out a criminal act on the president’s behalf are covered by no privilege and subject to no immunity, and the president’s lawyers as well as the Justice Department lawyers must know as much.” He added, “Today’s spectacle was just another chapter in the ongoing criminal obstruction of justice in which this president has been engaged for well over a year, obstruction of justice designed to cover up the president’s illicit dealings with a hostile foreign power to help him acquire his office and to hold onto it.”
So forget about Sessions, what the Mueller report says, what the Democrats failed to gain in the hearing, and forget about contempt of Congress for Lewandowsi. Corey Lewandowski just testified under oath to Congress that people in the White House committed obstruction of justice, conspiracy to obstruct justice and suborning a witness, him. He also confessed to that conspiracy, though he pleaded ignorance of the law. He is the perfect witness because as someone who never served in the White House, there is no way that he could assert Executive Privilege as a reason for not testifying. In fact, I would argue that in telling Lewandowski what to tell Session to do, the White House waived any claim of Executive Privilege with regard to the matter for the President or his staff. Now it is up to the Democrats to push forward with this new grounds for impeachment. And it is time for the Caucus to come together and all at least endorse continuing the impeachment investigation. As I explore more fully in a later article in this Series, between Emoluments and Lewandoski’s testimony, Democrats have a much more compelling case to present to the public than the Mueller report and its underlying evidence.
I will be laying out the political and legal issues involved in impeaching and convicting Trump in the next few articles in this Series. The Fighting Smarter series is intended to take a deep dive into current political and policy issues focusing on how they are affected by four memes: one, the failure of the “press” to perform their constitutional function; two, Democrats, as well as the press, missing the obvious; three, Democratic messaging especially through the lens of the first meme; and four, party organization. The first Part of the Series here took a look at how the press should be acting in the age of Trump. The next few articles in the series examine impeachment and how it relates to the rule of law, emoluments and treason as well as revisiting the Lewandoski testimony. Taking a deep dive means that I will be providing deep background for which I will be going all the way back to the Constitutional Convention.
The ultimate political objective of the Party is to remove Trump from office and if possible try him for any crimes. I believe the impeachment process will play a key role in whether or not Trump is removed from office by 2021. There are three major barriers to achieving this, the MSM’s inability to properly report on Trump and the impeachment process, public opposition to impeachment proceedings and Republican obstructionism, lead by Mitch McConnell. More about the polling on impeachment in later articles, but it is clear that the public is far behind where they need to be in understanding Trump’s threat to our democracy. However, polling has been moved dramatically before: on gay marriage; on corruption to where it is one of the top concerns in some polls; on gun control thanks to the amazing young men and women of Parkland: and on the climate crisis which went from not even in the top 10 issues during the last decade to the number one issue in many polls. Did changing the discussion from a Carbon Tax to the Green New Deal help drive this last change? The challenge for Democrats in trying to impeach Trump is to figure out the catalyst to these past dramatic changes in polling and apply it in moving forward with the impeachment process. Timing is also critical. That is, what is the optimal time frame for passing an impeachment resolution in order to have the maximum impact on the chances of defeating Trump next November (if not sooner)? Properly framed and communicated, Lewandoski’s testimony could be a significant contributing factor in changing public opinion.
I do see some merit in the argument that it could be a monumental waste of time as long as the Republicans control the Senate. However, there is a right way and a wrong way to go about this process. Pick the wrong way (particularly if Democrats ignore or mishandle the messaging challenges, including Lewandoski’s testimony) and it is guaranteed to be a monumental waste of time and will improve Trump’s chances of being re-elected. I continue to work through my own position on the issues even as I write these articles and your opinions will help in this process. In turn, I hope you find these articles helpful to your own understanding of the issues, their political implications and the penultimate question as to whether or not the House should proceed to vote on either a formal impeachment resolution or articles of impeachment and if the latter, what the charges should be. To help with understanding the process, included below is a chart of a high level overview of the impeachment process with thanks to fellow Kossack, Angela Marx. We are now on Step 2 of the chart
Tangential to the subject, it continues to trouble me that with the rule of law on which our democracy is based under attack, the largest Democratic blog site does not have an active group dedicated to in-depth reporting on the latest legal issues of the day. Given other demands in my life and the breadth of the subjects I am interested in, as well as the sheer volume of material to be covered, I cannot devote the time needed to adequately analyze just the ongoing emolument lawsuits in depth much less the rest of the legal challenges against the Trump Administration. Consequently, I am looking for fellow Kossacks to help start a new law group. If you are interested in contributing, whether it be stories or otherwise, please contact me via the dKos message system. You do not need to be a lawyer or a paralegal to be a big help but I am also hoping at least two other lawyers could volunteer some time to contribute articles of interest to them.