How Should the Democrats Impeach Donald Trump?

Fast and Furious…or Slow and Steady?

December 4, 2019

Democratic leaders in Congress face a tough dilemma as they chart the course of impeachment proceedings against President Donald Trump.

Should they focus exclusively on Trump’s attempt to shake down the Ukrainians and ask Congress to vote on impeachment before the Christmas break? Or should they bring a broader array of charges against the President, at the risk of slowing down the proceedings?

To build a more comprehensive case, they probably need to get recalcitrant officials like former White House Counsel Don McGahn to testify. That might take some time, given the Administration’s unprecedented stonewalling, but a favorable court ruling last week supports Congress’ authority to compel McGahn to appear.

It’s a tough call, but a broader and slower process might be the better approach. The problem for the Democrats is that, remarkably, only 50% of American voters think that Donald Trump should be removed from office. That’s after numerous witnesses in the recent Intelligence Committee hearings testified that the President put enormous pressure on the Ukrainian government to investigate Hunter and Joe Biden purely for personal motives.

Trump grossly abused his office for his own personal benefit, using military aid and a White House meeting as leverage to get a “favor”. He undermined an important ally defending itself against Russian aggression. Yet for half of the voters, apparently, that doesn’t justify impeachment and removal from office.

There are undoubtedly many reasons for this troubling situation — a rigidly loyal Republican Party, a de facto state propaganda machine in Fox News, voters’ fatigue with “Washington” issues, outright cynicism — but, in any case, the Democrats have not yet won the battle for public opinion. They have to bolster the narrative. They need to emphasize that the Ukraine shakedown was not just an isolated incident, but part of a pattern of illegal and unacceptable behavior by a democratically elected leader.

Reviving Mueller’s obstruction of justice charges

In 1974, Democrats prepared three articles of impeachment against President Richard Nixon: obstruction of justice, abuse of office, and contempt of Congress. Democrats did not just focus on the Watergate break-in, though that was a critical event; they also dwelt on Nixon’s cover-up regarding the burglary. This time around, Democrats should also stress that Trump has attempted to obstruct justice, and Don McGahn would be a key witness. That is precisely why the Trump Administration has fought so hard to prevent him from appearing before Congress.

Robert Mueller’s testimony before Congress should have provided a good forum for exposing Trump’s repeated attempts at obstructing justice, because his report laid out, in great detail, the President’s illegal maneuvers. But Mueller sabotaged his own report with his weak, unsteady performance. McGahn could be a much more compelling witness, especially because, as White House Counsel, he was at the epicenter of the events.

The Mueller Report described ten instances of Trump’s trying to obstruct justice, but let’s focus on some episodes that directly involved McGahn.

Trump asked McGahn to lie and falsify records

In 2017 Trump asked McGahn, several times, to fire Mueller as his investigation into possible Russian interference in the 2016 election was gaining momentum. McGahn refused to do so and, on one occasion, even packed up his office and prepared to resign. Eventually, Trump gave up, in the face of McGahn’s resistance.

In 2018, The New York Times reported that the President had ordered McGahn to terminate Mueller. The Mueller Report noted that after the Times’ piece was published, Trump repeatedly asked McGahn to deny publicly that he had been instructed to remove Mueller, because the article “made him look bad”. McGahn refused.

Subsequently, according to the Report, Trump tried to defend himself by telling McGahn, “I never said to fire Mueller. I never said “fire”. (echoes of “no quid pro quo”?) McGahn responded that he had heard the President say, “Call Rod [Rosenstein]. There are conflicts. Mueller has to go.”

Trump then asked McGahn to write a letter for “our records” saying that he had not been told to fire Mueller, but McGahn again refused.

The President also chastised McGahn for telling investigators on Mueller’s team that he had been told to remove the Special Counsel. McGahn responded that he was required to answer their questions. McGahn, who spent many hours with the Special Counsel’s investigators, was the most-cited witness in the Mueller Report.

In other words, the President of the United States asked the White House Counsel to create a false document, presumably so he could use it to defend himself in a future legal proceeding. That’s called falsifying evidence. Trump also criticized McGahn for telling the truth to government investigators. That’s called tampering with a witness.

Credit: Getty Images/Pool

The President’s model lawyer: Roy Cohn

In addition, the President chastised McGahn for taking notes, which is standard practice for careful lawyers. Trump asked McGahn, “Why do you take notes? Lawyers don’t take notes. I never had a lawyer who took notes.” McGahn replied that he kept notes because he was a “real lawyer” and they created a useful record. Trump said, “I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes”.

Roy Cohn, who represented several mobsters besides more traditional clients, was disbarred from legal practice. One could understand why Cohn would be reluctant to take notes; it could have been bad for his health. It’s harder to see why a President was telling his lawyer not to keep a record of events, unless he had something to hide. But it’s easy to understand why Donald Trump does not want Don McGahn to repeat that conversation in a televised Congressional hearing.

Obstructing justice is one of the worst offenses an elected leader can commit. If a President undermines the judicial system, by encouraging perjury or falsifying documents, that is a direct attack on the rule of law. It is irrelevant whether or not the underlying activity that he is trying to cover up is ultimately found to violate the law. Lying or distorting evidence in the context of a court trial or a government investigation weakens trust in the legal system, and it is a criminal act.

It’s deplorable that Trump lies so frequently in public and in his tweets. But it’s criminal for him to ask others to lie or to fabricate evidence, or imply they should destroy records, if a judicial or government proceeding is involved. And it would make Trump “look bad”, very bad, if McGahn testified in a public hearing about the President’s multiple attempts to do this.

“Presidents are not kings”

In May 2019, the Administration ordered McGahn not to testify before the Judiciary Committee, even though he had been subpoenaed and even though he was no longer working in government. The Administration asserted that senior aides had “absolute” immunity from appearing before Congress. However, this claim ignored the long-established tradition of government officials testifying in response to subpoenas and constituted a direct challenge to Congress’ constitutional power to oversee the executive branch.

Congress took the issue to court and won a resounding victory on November 26, when Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia rejected the Administration’s position and ruled that McGahn had to testify. “Presidents are not kings”, the judge observed, as she emphasized that Congress’ ability to exercise oversight is key to maintaining the separation of powers in our government.

The Justice Department has appealed the ruling, and the date for the appellate hearing is January 3, 2020. Trump and his advisers are obviously running out the clock, trying to stall so long that Congress gives up trying to obtain McGahn’s testimony. We should expect the Administration to appeal the decision all the way to the Supreme Court — even though the law seems pretty clear on this issue. Judge Brown Jackson cited a 2008 decision ruling by another judge in her district that Harriet Miers, George W. Bush’s White House Counsel, had to comply with a Congressional subpoena.

The Judiciary Committee should impose stiff penalties on McGahn if he still refuses to comply. McGahn left the Administration in October 2018, and he joined a major law firm. Perhaps the Committee could levy a large fine upon McGahn or send a letter to his state bar association recommending that he be suspended from practicing law for as long as he declines to testify. If it takes a few weeks or a couple of months to get McGahn to appear, that is a price worth paying.

Don McGahn could tell a compelling story about Trump’s gangster-like behavior and fill in the gaps that Robert Mueller left. McGahn’s testimony might help convince the American people that Donald Trump represents a profound threat to the rule of law and our democracy… and, as the President would say, he has to go.

A Wall Street Democrat. Security analyst (financial institutions), former lawyer and banker.

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