Dear Reader,
Impeachment seems upon us. Almost two years of a special counsel’s investigation, culminating in a report detailing extraordinary abuse of power by the president, could not catalyze a consensus even within the Democratic caucus. But just a few days after news broke of the president’s alleged attempt to push a foreign investigation of his potential 2020 rival Joe Biden by putting pressure on the president of Ukraine, everything has changed. Moderate democrats sitting on the sidelines for the last two years are ready. Civil rights icon Representative John Lewis is ready. House Intelligence Committee Chairman Adam Schiff is ready.
Most importantly, Speaker of the House Nancy Pelosi is ready.
It all seemed to happen with lightning speed, perhaps because there was already so much straw on the camel’s back. The new allegations depict a brazen Donald Trump, acting as president and not merely candidate, trying to gain an advantage in the upcoming election by inserting himself into a foreign law enforcement process. When did he do that? On the very day after Robert Mueller testified before Congress. For legions of fence-sitters this proved simply too much. All of this, Trump brought on himself, with characteristic hubris and hypocrisy.
Events are unfolding almost too rapidly to keep up with. There will be much to discuss and dissect in the coming weeks and months. For now, here are a couple of quick thoughts about how to view developments, given what we have all just been through with the Mueller investigation.
First, let’s not once again fall into the trap of making the standard here the commission of a crime, requiring that every element of a federal criminal statute be established by proof beyond a reasonable doubt.
The question is not: is it a crime? That is not the standard for impeachment; that is not the standard by which we should judge the fitness of the most powerful office-holder in the country. It is not the standard by which we judge police officers, teachers, CEOs, athletes, or anyone in any workplace. The question is: did the president engage in conduct that is an abuse of power for which he should be held accountable, for which he should be rebuked and possibly removed? This is especially true now since everyone now knows nobody is going to charge him with a crime.
Lindsey Graham actually said it fairly eloquently back in 1999, when it was President Clinton in the hot seat: “You don’t even have to be convicted of a crime to lose your job in this republic if this body determines that your conduct as a public official is clearly out of bounds in your role; impeachment is about restoring honor and integrity to the office.”
Even more generally, beware of those who make the standard higher than it needs to be. Don’t have excessive expectations about any particular piece of evidence — like the call to Ukrainian President Volodymyr Zelensky, for example. Lots of evidence has ambiguity, susceptible to other interpretations in a vacuum. Taken together, in the light of common sense, evidence paints a damning or exonerating picture.
Second, remember not to be taken in by the president’s patented ploy – committing his misconduct in plain sight. Even when he misbehaves behind the scenes as with his July 25 call to Zelensky, once it is exposed he (and his lawyers like Rudy Giuliani) double down and embrace the actions, making an ostentatious display of indignation that anyone could question it. His strategy has always been – uniquely – part cover-up, part confession. If I’m doing it out in the open, how could it be illegal or even improper?
Special Counsel Mueller understood this approach and clearly and unequivocally dismantled it. Recall this from Volume II:
[M]any of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view. That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws. If the likely effect of public acts is to influence witnesses or alter their testimony, the harm to the justice system’s integrity is the same. (Volume II, “Overarching Factual Issues,” page 7.)
Conservative author and The Atlantic writer David Frum put it better than I could (practice note: always read David Frum):
Trump has never been furtive. He commits his wrongs in the full glare of publicity. Bribes to Trump are not delivered by shadowy men in underground garages. They are collected right on Pennsylvania Avenue, in a garish hotel with Trump’s name right on the door. Trump does not stealthily embezzle Republican donations. The party simply books its events on his premises, every misappropriated dollar counted and disclosed. When Trump invited Russia to hack his opponent and deliver her emails to him, he did it on live television.
Trump takes advantage of a human tendency to think, If he’s not ashamed, maybe he did nothing wrong. Normal people are taken aback by pathological people, and Trump is the most pathological president in American history.
Trump likes to claim allegations about him are hoaxes. History will show that he is the greatest perpetrator of hoaxes in modern political times.
So, buckle up. And stay tuned.
My best,
Preet
STAY TUNED LIVE TOUR
Stay Tuned is going on the road! Join Preet and guests for a night of fun and thought-provoking conversations in the following cities:
Denver | October 24, 2019
Shannon Watts, gun reform activist and founder of Moms Demand Action
Minneapolis | November 5, 2019
Jacob Frey, Minneapolis Mayor and civil rights attorney
Detroit | November 12, 2019
Dana Nessel, Michigan’s 54th Attorney General and long-time advocate of LGBTQ rights
Atlanta | December 4, 2019
Sally Yates, a veteran of the Justice Department who served as the Acting U.S. Attorney General
THE TRUTH NEEDS A VOICE
Reversing its position, the White House will turn over to Congress – by the end of the week – a redacted whistleblower complaint and the Inspector General report that are the subject of House Democrats’ impeachment inquiry, Politico reported last evening. Congressional investigators also expect to hear from the whistleblower in person. According to the New York Times, “White House and intelligence officials are working out a deal” for closed-door testimony.
The Intelligence Community Whistleblower Protection Act allows whistleblowers to go directly to Congress, but the whistleblower must first obtain and follow directions from the Director of National Intelligence on how to contact congressional intelligence committees in accordance with appropriate security practices.
In the interests of securing classified information and the penchant of presidents to maintain the decision-making power over what information is shared with lawmakers, the government defines “whistleblowers” – for legal purposes – as individuals who want to bring misconduct to light and who follow delineated procedures that transmit a complaint through internal oversight structures.
The whistleblower’s attorney, Andrew Bakaj, sent a letter to the Acting Director of National Intelligence (ADNI) Joseph Maguire on Tuesday, notifying him of the whistleblower’s intent to directly contact the House Select Committee on Intelligence and seeking guidance on how to do so. In response to the letter, Committee Chairman Adam Schiff requested a private voluntary interview with the whistleblower to take place tomorrow, September 26, following ADNI Maguire’s previously scheduled public testimony.
In a letter to Bakaj, the whistleblower’s lawyer, DNI General Counsel Jason Klitenic, wrote that because the complaint involves “confidential and potentially privileged communications by persons outside of the Intelligence Community” the DNI is “consulting with other Executive Branch stakeholders before transmitting to you the guidance sought.” Notably, Klitenic commended the whistleblower for coming forward, telling Bakaj:
|
These developments are welcome news. As Preet and Anne noted on this week’s episode of CAFE Insider, when official whistleblower channels fail to serve their intended purpose, whistleblowers could be discouraged from reporting potential wrongdoing and also incentivized to leak to the news media.
Whistleblowing by members of the intelligence community presents distinct challenges. As Shelley Walden, a researcher on Pen America’s report on the “free expression implications of the government’s ‘war on whistleblowers,’” noted in a recent blog post:
Intelligence community employees who consider blowing the whistle face three abysmal choices: use the internal channels and risk career suicide, go to the media and face potential jail time, or stay silent in the face of waste, fraud, abuse, illegality, or threats to our democracy.
What should intelligence community whistleblowers who follow official channels but hit a dead-end do? Let us know your thoughts by replying to this email or writing to us at letters@cafe.com
ASSAULT ON FREE PRESS
What happens when America’s institution of free press is threatened by its own government? Will the fear of reprisal effectively eliminate another whistleblowing channel?
New York Times publisher A.G. Sulzberger published an op-ed this week decrying what he describes as “a worldwide assault on journalists and journalism,” calling it “an assault on the public’s right to know, on core democratic values, on the concept of truth itself.” He writes:
The hard work of journalism has long carried risks, especially in countries without democratic safeguards. But what’s different today is that these brutal crackdowns are being passively accepted and perhaps even tacitly encouraged by the president of the United States
Sulzberger shared for the first time an unsettling anecdote involving a Times reporter in Egypt to emphasize what he perceives as the Trump administration’s dangerous turn on free press. Originally delivered as a speech on Monday night at Brown University, his remarks reveal the dangers of international reporting and the increased stress caused when the president of the world’s largest democracy constantly attacks the media.
Read Sulzberger’s riveting op-ed in its entirety and let us know what you think by replying to this email or writing to us at letters@cafe.com.
THIS WEEK ON STAY TUNED
Samantha Power is this week’s guest on Stay Tuned. Power served eight years in President Obama’s administration: first as Special Assistant to the President and Senior Director for Multilateral Affairs and Human Rights at the National Security Council, and then as U.S. Ambassador to the United Nations. She recently published her memoir, The Education of an Idealist.
In this sneak peek at the interview, Power explains the balance between idealism and pragmatism in foreign relations:
Do I see the world through rose colored glasses? Do I think the change is easy? Years ago, the way I got to know Barack Obama was I wrote a five-hundred-page book on American responses to the major genocides of the 20th century and it was all about how the system systematically excludes consideration of human consequences. So, nobody had to remind me that there’s evil in the world and that in general large institutions struggle to humanize what they do. It’s just very hard to keep individuals at the center of bureaucratic debates and very easy to lose sight of what draws you into public service in the first place…But how do you get better or at least try to get better at prosecuting your ideals, at making that change?
Don’t forget to listen to this week’s episode. It drops this Thursday, September 26th.
FOLLOW
We may not know the identity of the whistleblower who reportedly raised the alarm about Trump’s call with the Ukrainian president, but we know who the whistleblower’s lead counsel is: Andrew Bakaj. Before founding his own firm, Bakaj was an investigator in the inspector general’s offices at both the CIA and the Department of Defense, working on probes into whistleblower reprisals. In fact, Bakaj has himself been a whistleblower. Follow @AndrewBakaj and keep up with the latest news on this fascinating case.
WHISTLEBLOWER UPROAR
If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “Whistleblower Uproar” and follow along with this transcript of Preet and Anne’s conversation.
*Please note, you may now manually add your unique Insider Podcast feed to your favorite podcast app. Here are the instructions.
That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at letters@cafe.com with your thoughts, suggestions, and questions.
— The CAFE Team
Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander, and Aaron Dalton
