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Heather Cox Richardson January 22, 2020

Trigeek

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Jul 2, 2001
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January 22, 2020 (Wednesday)

The large theme of today, for me, was just how freaking prepared House impeachment managers, led by Adam Schiff (D-CA) are for this moment. Today they began to lay out the case that Donald Trump abused the power of the presidency and obstructed Congress. They did so in such a way that they told a coherent, compelling story, with testimony from the House impeachment hearings and evidence from relevant documents inserted into the correct places.

For folks who don’t do this sort of presentation frequently, I cannot impress enough on you how masterful this presentation was. It looks easy to turn to clips as they did, but it takes hours and hours of work to find those, cut them, and clip them in as they did, so that they flow easily. And they have created a long, complicated, thoroughly sourced narrative that they are laying out in easy clarity, in about a month. Indeed, I came to suspect today that some of Pelosi’s withholding of the impeachment articles was to buy Schiff and his team time to put together something this impressive.

And it was impressive, impressive enough that a number of reporters noted that Republicans were taken aback at hearing the timeline, as full as it now is with the evidence that the Democrats have compiled even with the president’s stonewalling. But it was not simply clear and compelling. Schiff turned again and again to the principles on which America is founded, and urged Republicans to defend those principles.

“We have, for generations, been the shining city upon a hill that President Reagan described,” Schiff reminded his colleagues. “America’s not just a country, but also an idea. But what worth is that idea when tried we do not affirm the values that underpin it? What will those nascent democracies conclude? That democracy is not only difficult, but maybe that it’s too difficult? Maybe that it’s impossible? And who will come to fill the void that we leave when the light from that shining city upon a hill is extinguished? The autocrats with whom we compete. Who value not freedom and fair elections, but the unending rule of a repressive executive. Autocrats that value, not freedom of the press and open debate, but disinformation, propaganda and state sanctioned lies. Vladimir Putin would like nothing better.”

Schiff and the other impeachment managers repeatedly reminded the GOP senators that more information was going to come out. Wouldn’t they prefer for it to come out before they had acquitted the president? They pointed out that every previous Senate impeachment trial has had evidence—a point Lincoln Project founder George Conway also made quite effectively on television with CNN’s Jake Tapper this morning-- and tied the GOP to Trump, warning senators they will be seen as part of a coverup if they continue to protect him. They are not exaggerating; today’s poll numbers show that 72% of Americans want to hear witnesses, including 69% of Republicans.

The trial, conservative columnist for the Washington Post Jennifer Rubin wrote, is “making clear to the entire country that Trump did exactly what he is accused of, but that his own party, suffering from political cowardice and intellectual corruption, do not have the nerve to stop him.” Reporter Elie Mystal signed off Twitter tonight saying: “Goodnight, Twitter. My wish for all you people I like is that you never commit a crime Adam Schiff has reason to prosecute you for.”

At Davos, Switzerland, today, Trump continued to try to flood the zone, repeatedly insisting that “the transcript” cleared him of wrongdoing (remember, there is no transcript, and even what he released as a readout of the July 25 call with Ukraine President Volodymyr Zelensky shows him talking about the Bidens and Burisma but not “corruption”). But he also said something new and unfortunate. He defended his team for doing a good job and then said: “But honestly, we have all the material. They don’t have the material.” Um… yeah. The fact he stonewalled the House is kind of the point.

Tonight, at the end of the day’s events, Schiff transmitted to the Senate a classified document written by Jennifer Williams, assistant to Vice President Mike Pence, who was on some of the key phone calls between Trump and Ukraine President Volodymyr Zelensky. There appears to be no reason for the document to be classified except to protect Pence. Last night, the Senate rejected an amendment to the resolution McConnell had written to establish the rules of the trial; that amendment would have allowed the Senate to receive classified information into evidence. But Chief Justice John Roberts permitted the letter into the record under the Standing Rules of the Senate. The Senators can all now see this document under a classified setting… if they choose to.

And there’s the rub. Republican senators are not paying particularly close attention to the proceedings. Senators are all supposed to be in attendance and listening, but a few, mainly on the Republican side, are openly refusing. Today Rand Paul (R-KY) displayed handwritten message pretending to be a hostage victim, openly worked a crossword puzzle, and then just got up and left. Other Republicans openly chatted, despite the admonishment that “all persons are commanded to keep silence, on pain of imprisonment.” South Carolina Senator Lindsay Graham left. (On the Democratic side, 86-year-old Dianne Feinstein (D-CA) left for at least a half hour, and Corey Booker (D-NJ) went to the cloak room to make phone calls.)

The open disdain of GOP congress people for our democratic process speaks volumes. If Trump is acquitted—as many of us expect—he will consider himself justified in continuing to concentrate our nation’s power into his own hands, and there seems little reason to think his party will stop him. Indeed, a very smart lawyer I follow on Twitter (but whose account is locked and he had not given permission to name him, so for now let’s leave him anonymous) observed this morning that perhaps even the few GOP Senators who would like to hear witnesses and see documents don't dare to demand them because they are afraid Trump will refuse even them, thus illustrating that they are powerless.

And he is making it clear that he is moving toward the sort of leadership he sees among the oligarchs he so admires. Yesterday, the Commerce Department said it would not follow a law (!) saying it had to release the report of a controversial investigation it conducted that concluded certain auto imports pose a national security threat. It refuses on the grounds that releasing it “would interfere with the president’s ability to protect confidential executive branch communications and could interfere with ongoing negotiations.” And today in Davos, Ivanka Trump took precedence over our cabinet officers, acting as her father’s second. She was the only person he called out for praise in his 30 minute speech. (Do you recall shortly after Trump’s inauguration when she moved into the White House, and there was such a hue and cry about it she vowed she would never have an official position? In three years, this unprecedented nepotism has become normalized.)

For all this, though, Trump appears angry and nervous, tweeting or retweeting 132 times before 5:00 pm, a new record for him. The White House also announced that Trump will be appearing personally at this Friday’s anti-abortion March for Life, a move that would seem to indicate his desperate need to reassure his base, except that it runs the risk of alienating pro-life Democrats. Trump will be the first president ever to speak at the event in person, and my read on it is that he feels the need to be before a cheering crowd. Any crowd.
 
I wasn't able to listen to as much of Schiff's opening as I would have liked to, but the parts I did catch were shockingly well done. I'm pretty familiar with the details and evidence, and it was even somewhat startling to me how bad it looks when the highlights are laid out sequentially mixed in with video clips.
 
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I wasn't able to listen to as much of Schiff's opening as I would have liked to, but the parts I did catch were shockingly well done. I'm pretty familiar with the details and evidence, and it was even somewhat startling to me how bad it looks when the highlights are laid out sequentially mixed in with video clips.
It’s an opening statement that he’s got plenty of resources and time to compose. Of course he should weave a good tale. I would caution a couple of things though.

(1) This isn’t a legal proceeding so he has no legal mandate to stick to the facts or the scope of the accusation, nor does he have any penalties for fabrication and unsupported speculation. He can weave any story he wants (pure fiction or not) and it’s all fair game. He could tell stories about Trump stealing a kid’s lunch money in elementary school and it would be admissible. But that wouldn’t make it relevant to the articles of impeachment in front of the Senate.

(2) He uses speculation to fill in the gaps in his story and expects everyone to believe that the witnesses that he did not subpoena in his inquiry would testify in a way that will weave it all together perfectly. They may or they may not. He had the responsibility in the House to go make that happen and didn’t do it. He didn’t challenge executive privilege. Why not? Was he worried that they would deep six his narrative so instead he leaves the points open for speculation?

(3) Speaking of speculation, he called fact witnesses in the inquiry and then asked them to speculate based upon his theories of the alleged impeachable offense. This would’ve been inadmissible in a court of law, but works fine in a political theater when you’re just trying to sway public opinion. But let’s remember that the court of law has those rules for a reason and weigh the testimony for what it was.

Still have a long way to go and a lot of politics to play. Let’s see what happens.
 
It’s an opening statement that he’s got plenty of resources and time to compose. Of course he should weave a good tale. I would caution a couple of things though.

(1) This isn’t a legal proceeding so he has no legal mandate to stick to the facts or the scope of the accusation, nor does he have any penalties for fabrication and unsupported speculation. He can weave any story he wants (pure fiction or not) and it’s all fair game. He could tell stories about Trump stealing a kid’s lunch money in elementary school and it would be admissible. But that wouldn’t make it relevant to the articles of impeachment in front of the Senate.

(2) He uses speculation to fill in the gaps in his story and expects everyone to believe that the witnesses that he did not subpoena in his inquiry would testify in a way that will weave it all together perfectly. They may or they may not. He had the responsibility in the House to go make that happen and didn’t do it. He didn’t challenge executive privilege. Why not? Was he worried that they would deep six his narrative so instead he leaves the points open for speculation?

(3) Speaking of speculation, he called fact witnesses in the inquiry and then asked them to speculate based upon his theories of the alleged impeachable offense. This would’ve been inadmissible in a court of law, but works fine in a political theater when you’re just trying to sway public opinion. But let’s remember that the court of law has those rules for a reason and weigh the testimony for what it was.

Still have a long way to go and a lot of politics to play. Let’s see what happens.

Fair points.

But you're incorrect on the facts regarding executive privilege (Schiff pointed this out on day 1). The White House has yet to claim executive privilege even one time. Why? Because that applies to documents on a line-by-line basis. It applies to testimony on a question-by-question basis. There are actually legal precedents on this. There was no claims of executive privilege for Schiff to challenge in court.

Instead, they've claimed "total immunity" from all subpoenas. This is an insanely pro-executive viewpoint with no basis in precedent I'm aware of, but based on various legal theories and maybe OLC opinions. It's one thing to fight specific subpoena's in court (the McGhan situation for example). Or to hand over a bunch of emails with heavy redactions. Or even to have someone show up to testify but answer every question with "that's privileged". Simple FOIA lawsuits by watchdog types are getting redacted emails produced that the administration wouldn't turn over to Congress.

It's a completely different scenario to say you'll have to fight EVERY single subpoena in court, for every single document and every single witness. This is why the Obstruction of Congress Article exists. The House is putting it's foot down. It's setting a precedent that if a POTUS dictates a wholesale, executive wide refusal to cooperate with an impeachment inquiry, that is an impeachable offense on it's own.

Holder was held in contempt of congress despite DOJ turning over thousands of documents regarding Fast and Furious. If the Obama administration had put forth an edict saying they would respond to no subpeonas for anything ever, citing a total immunity from congressional oversight, I'm fairly certain he too would have been impeached over that.
 
Fair points.

But you're incorrect on the facts regarding executive privilege (Schiff pointed this out on day 1). The White House has yet to claim executive privilege even one time. Why? Because that applies to documents on a line-by-line basis. It applies to testimony on a question-by-question basis. There are actually legal precedents on this. There was no claims of executive privilege for Schiff to challenge in court.

Instead, they've claimed "total immunity" from all subpoenas. This is an insanely pro-executive viewpoint with no basis in precedent I'm aware of, but based on various legal theories and maybe OLC opinions. It's one thing to fight specific subpoena's in court (the McGhan situation for example). Or to hand over a bunch of emails with heavy redactions. Or even to have someone show up to testify but answer every question with "that's privileged". Simple FOIA lawsuits by watchdog types are getting redacted emails produced that the administration wouldn't turn over to Congress.

It's a completely different scenario to say you'll have to fight EVERY single subpoena in court, for every single document and every single witness. This is why the Obstruction of Congress Article exists. The House is putting it's foot down. It's setting a precedent that if a POTUS dictates a wholesale, executive wide refusal to cooperate with an impeachment inquiry, that is an impeachable offense on it's own.

Holder was held in contempt of congress despite DOJ turning over thousands of documents regarding Fast and Furious. If the Obama administration had put forth an edict saying they would respond to no subpeonas for anything ever, citing a total immunity from congressional oversight, I'm fairly certain he too would have been impeached over that.
Let's see. If the people and documents haven't been subpoenaed then they haven't had to claim executive privilege so Schiff then gets to claim that they haven't claimed executive privilege but they said that would as if that's some big obstruction of justice.

You say that Trump bloviated that he was going to dictate a branch-wide refusal to cooperate, but the circumstances were never in place where the branch didn't cooperate. But because it might could be the case, impeach him? This is the bar we're setting now? In Holder's case, they actually didn't turn over the documents. In Trump's case, Schiff hasn't formally requested them. That's an important difference.

I think the bar for impeachment should be like this: (a) Schiff issues a subpoena, (b) Trump claims executive privilege, (c) Schiff sues to remove the privilege, (d) SCOTUS rules that Trump cannot claim privilege, (e) Trump still refuses to comply with the subpoena, (f) Schiff files a credible article of impeachment. That's due process.

Not this: (a) Schiff says in the media that he wants to see a bunch of stuff, (b) Trump says that he doesn't believe that Schiff's intentions are pure and he'll fight him, (c) Schiff files a partisan article of impeachment on obstruction.
 
Let's see. If the people and documents haven't been subpoenaed then they haven't had to claim executive privilege so Schiff then gets to claim that they haven't claimed executive privilege but they said that would as if that's some big obstruction of justice.

You say that Trump bloviated that he was going to dictate a branch-wide refusal to cooperate, but the circumstances were never in place where the branch didn't cooperate. But because it might could be the case, impeach him? This is the bar we're setting now? In Holder's case, they actually didn't turn over the documents. In Trump's case, Schiff hasn't formally requested them. That's an important difference.

I think the bar for impeachment should be like this: (a) Schiff issues a subpoena, (b) Trump claims executive privilege, (c) Schiff sues to remove the privilege, (d) SCOTUS rules that Trump cannot claim privilege, (e) Trump still refuses to comply with the subpoena, (f) Schiff files a credible article of impeachment. That's due process.

Not this: (a) Schiff says in the media that he wants to see a bunch of stuff, (b) Trump says that he doesn't believe that Schiff's intentions are pure and he'll fight him, (c) Schiff files a partisan article of impeachment on obstruction.

That is a great overview of what we have going on. Executive privilege exists for a reason and the only way to know whether it's being abused is to go to court. Period, full stop. That never happened so the obstruction charge should be dismissed out of hand. It's like if a police officer asks you if he can search your house. You can say no because you have a right to so so. If he comes back with a warrant and you refuse, that's a crime.
 
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