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November 15, 2019

Note From Elie 11/15

Welcome to the new CAFE Brief with Elie Honig: an end-of-week analysis of politically charged legal news. In addition to making sense of the most important issues at the intersection of law and politics, we’ll be highlighting the biggest stories of the week, sharing our takeaways from the week’s Stay Tuned interview, and answering your questions about the legal system. We appreciate your readership and feedback as we continue to develop content. As always, reach out to us with your thoughts and questions at [email protected].

Today’s issue of the CAFE Brief is brought to you by the Amazon Original motion picture The Report. The film explores the creation of the CIA’s secret interrogation program implemented after the September 11th attacks. See it in theaters today and on Prime video November 29th.

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NOTE FROM ELIE

Dear Reader,

In the 1986 classic movie “Hoosiers,” Hickory High School basketball coach Norman Dale (played by Gene Hackman) benches his star player, Rade, during a key game for shooting too much and passing too little. As the game progresses, another player fouls out, leaving the Huskers with only four available players plus Rade. The referee jogs over to the bench and, motioning for Rade to re-enter the game, says, “You need one more, coach.” Dale points his finger and deadpans: “My team is on the floor.”

This week, House Democrats looked at their roster of witnesses — Bill Taylor, George Kent, Marie Yovanovitch and likely other career public servants — and declared, “Our team is on the floor.” Like Coach Dale, House Intelligence Committee Chair Adam Schiff could have bolstered his squad, but instead decided he’d do better in the long run by playing shorthanded.

We now know that Acting White House Chief of Staff Mick Mulvaney was centrally involved in the scheme to withhold hundreds of millions of dollars in foreign aid from Ukraine. Former National Security Advisor John Bolton objected to what he saw as an improper campaign to pressure Ukraine to conduct politically-driven investigations and instructed others to report their concerns up the chain of command. National Security Council Legal Advisor John Eisenberg and White House Counsel Pat Cipollone received those formal complaints, though it remains unclear what if anything they did in response.

Yet we are unlikely to hear testimony from any of these potentially crucial witnesses. Mulvaney and Eisenberg have defied House subpoenas, following White House instructions and invoking an extraordinary and legally dubious theory of “absolute immunity.” Bolton is playing games; he defied a House request for testimony, said he’d need a subpoena, but didn’t commit to complying with one. Cipollone has not yet been subpoenaed but he’s the one who has been instructing other witnesses not to comply, so guess where he’d come out if the House came knocking.

Let’s be clear here: any of these people could have chosen to testify. Taylor, Kent, Yovanovitch, Alex Vindman, Fiona Hill and others have defied the White House’s direction not to testify. The White House could have gone to court to seek a restraining order to stop these witnesses, but didn’t. Bluff called. The door is wide open to anybody who believes it is their duty to testify.

Now that Mulvaney and others have refused to comply with subpoenas, House Democrats have two choices: (A) go to court seeking an order to compel testimony, or (B) walk away and do their best without the reluctant witnesses. (Forget about the House’s inherent contempt power; that has gone dormant, unused in nearly a century, and the House has shown zero inclination to resuscitate it here.)

The good news about Option A for House Democrats is they likely would win. Federal courts already have upheld Congressional subpoenas in the dispute over Robert Mueller’s grand jury materials and Trump’s tax returns, confirming that Congress holds broad oversight and investigative powers with respect to the Executive Branch, particularly on impeachment.

The bad news, though, is that litigation is slow — likely too slow to meet the blistering pace of impeachment. There is no specific legal time limit on impeachment proceedings, but Speaker Nancy Pelosi and Schiff understand that it needs to happen fast, at the risk of losing momentum and public interest. House Democrats aim to impeach by Christmas, and a Senate trial likely would start in January 2020.

It is virtually impossible that House Democrats could get a case into court and decided (including appeals) by then. For example, when a legal dispute over a subpoena to Trump advisor Charles Kupperman went to federal court on October 31, the judge acknowledged the vital need for speed, and then set a briefing schedule requiring the parties to return for further argument six weeks later, on December 10. (House Democrats subsequently withdrew their subpoena to Kupperman but the judge strangely kept the mooted case on his docket). Assume the judge would’ve taken a couple weeks after December 10 argument to issue a ruling. Then the losing party automatically has the right to take the case to the federal court of appeals, which adds another couple months even at warp speed. And whoever loses at that stage can try to get the case to the Supreme Court, a process that could take anywhere from a few weeks (if the Court quickly turns down the case) to many months (if the Court takes it). Bottom line: no way the Kupperman case would’ve been completed, including appeals, before Spring 2020.

House Democrats have done the best they can under the circumstances. Would the case for impeachment be stronger if the witness list included Mulvaney, Bolton and other insiders who likely interacted directly with the President about Ukraine? Almost certainly, given the testimony we’ve already seen from people who dealt with them. But the reality is House Democrats could compel their testimony only at the cost of slowing impeachment down into the spring and possibly beyond. That is simply not an option, given the impeachment timeline. As one House Intelligence Committee official put it, “we have no interest in allowing the administration to play rope-a-dope with us in the courts for months.”

And House Democrats already have a formidable team on the floor. Witnesses like Taylor, Vindman, Hill, Yovanovitch, Kent and others are credible, non-partisan, career public servants. They did not promote or enable the President’s illicit conduct towards Ukraine (if anything, they resisted it). Take it from a prosecutor who put on many trials based on testimony from cooperating witnesses who had participated in the charged crimes: it’s an invaluable luxury to have a slate of witnesses whose hands are clean. Taylor and Kent — despite never having dealt directly with Trump — painted a clear and compelling picture of the Administration’s scheme to use foreign aid and a potential White House visit to force Ukraine to open investigations of Trump’s political rivals, to the detriment of the national security interests of both nations.

But there are real costs to proceeding without testimony from all relevant witnesses. If Mulvaney, Bolton and others ultimately do not testify, Congress and the public simply will not have all the relevant facts. There’s no way around it: public officials at the highest levels of the Executive Branch are holding on to important information and ensuring that it does not come to light. (Notable: Bolton won’t testify pursuant to Congressional subpoena but he is willing to spill it in an upcoming book. Some patriot).

More broadly, the obstructionist, slow-play antics of Mulvaney and others set a terrible precedent. Impeachment is different from a criminal case. In the latter, prosecutors have ample time to build their case — restrained only by the statute of limitations, typically five years — and thus can afford the temporal luxury of going to court to force recalcitrant witnesses to spill the beans. But, for political and practical reasons, impeachment typically needs to happen on a much shorter timeline — likely too short to permit court battles over disputed subpoenas. So any witness who wants to simply run the clock out on future impeachment proceedings can follow the Mulvaney playbook and likely get away with it.

House Democrats already have enough in hand. Between Trump’s July 25 call with Zelensky (which is still Exhibit A against Trump, notwithstanding his inexplicable “Read the Transcript” slogan), the damning texts between administration officials carrying out Trump’s Ukraine scheme, and the testimony of Taylor, Vindman, Kent, Yovanovitch and others, House Democrats have a compelling case for impeachment — though perhaps not overwhelming enough to sway Trump’s loyal Republican allies.

If Mulvaney and others remain silent, we will never know the full extent of Trump’s conduct. That might be good news for Mick Mulvaney and Donald Trump. But it does a disservice to our Constitutional system and the American public.

Stay informed,

Elie

THE WEEK IN A NUTSHELL

WASHINGTON, DC – NOVEMBER 13: (L-R) Deputy Assistant Secretary for European and Eurasian Affairs George P. Kent and top U.S. diplomat in Ukraine William B. Taylor Jr. are sworn-in prior to testifying before the House Intelligence Committee in the Longworth House Office Building on Capitol Hill November 13, 2019 in Washington, DC.

A new witness and a new allegation emerged from acting Ukraine Ambassador Bill Taylor’s testimony on Wednesday. Taylor said that after his October 22 closed-door deposition, one of his staffers told him that on July 26, a day after Trump’s infamous call with Ukrainian President Volodymyr Zelensky, he overheard EU Ambassador Gordon Sondland speaking with Trump who asked about “the investigations” and Sondland replied the Ukrainians were “ready to move forward.” After the call, the staffer asked Sondland what Trump thought about Ukraine, and Sondland responded that Trump “cares more about the investigations of Biden.” The Wall Street Journal reports that the staffer, whom Taylor didn’t identify in his testimony, is David Holmes, a State Department official Democrats expect to depose behind closed-doors today, just as former Ambassador to Ukraine Marie Yovanovich takes the stage at 9 a.m. for a public hearing before the House Intelligence Committee.

New set of impeachment witnesses have joined the roster for closed-door depositions and next week’s public hearings. In addition to David Holmes, who worked at the U.S. Embassy in Ukraine, Office of Management and Budget official Mark Sandy will testify in private on Saturday. Chairman Adam Schiff announced eight more witnesses, including three witnesses requested by House Republicans, will publicly testify next Tuesday (Jennifer Williams, aide to Vice President Mike Pence; Lt. Col. Alexander Vindman; Kurt Volker, former special envoy to Ukraine; and Tim Morrison, a White House aide), Wednesday (Gordon Sondland; Pentagon official Laura Cooper, and State Department official David Hale), and Thursday (former National Security Council official Fiona Hill).

House Speaker Nancy Pelosi described Trump’s efforts to sway Ukraine to investigate the Bidens by withholding military aid as “bribery,” one of the grounds for impeachment specifically set forth in the Constitution. The remark came in her weekly press conference on Thursday, where she also cautioned: “We have not even made a decision to impeach, that is what the inquiry is about.”

The U.S. Court of Appeals for the D.C. Circuit, in an 8-3 vote, decided on Wednesday to reject President Trump’s request to revisit its October ruling that the House subpoena seeking Trump’s tax documents, issued to accounting firm Mazars, was legitimate and must be complied with. The President’s attorney, Jay Sekulow, said they will appeal the decision to the Supreme Court. In what Sekulow described as a “well reasoned” dissenting opinion, Judge Rao called the subpoena “unprecedented,” writing: “Investigations of impeachable offenses simply are not, and never have been, within the legislative power because impeachment is a separate judicial power vested in Congress.”

The Supreme Court heard oral arguments on the Trump administration’s effort to terminate the Deferred Action for Childhood Arrivals program known as DACA. The Obama-era policy shields Dreamers, undocumented people brought to the US as children, from deportation without providing a pathway to citizenship. The administration, represented by Solicitor General Noel Francisco, argues that the program is unlawful because it exceeds the president’s executive authority and that the government’s decision to end DACA cannot be reviewed by the courts in the first place because it simply rescinds the prior administration’s choice not to enforce immigration policy. In argument analysis for the SCOTUSblog, Amy Howe writes, “it wasn’t clear how the case is likely to turn out.” Meanwhile, Adam Liptak of the New York Times observed that the “Court’s conservative majority appeared ready…to side with the Trump administration.”

Preet Bharara and Anne Milgram will break down the latest impeachment developments and more on Monday’s episode of the CAFE Insider podcast. To listen, and for access to all exclusive CAFE Insider content, try the membership free for 2 weeks.

THIS WEEK ON STAY TUNED

America’s Story with Jill Lepore

Last month, Harvard professor and New Yorker staff writer Jill Lepore celebrated the paperback release of These Truths, her 932-page history of the United States. Central to Lepore’s undertaking was her “resolve not to write an ideological history,” as she put it in a May Public Seminar reflection on the book. Critics have applauded the result, with conservative-leaning author Andrew Sullivan highlighting in the New York Times Lepore’s ability to capture “all these crosscurrents—reason and faith, truth and propaganda, black and white, slave and free, immigrant and native, industry and agriculture.” On this week’s Stay Tuned, Lepore discusses her quest to write a balanced national history in a time of political polarization.

Lepore believes that two visions of American history have solidified in the Trump era. On one side, Lepore argues, are conservative voices who think “the only things that have not been great have been since Vietnam.” She runs through their perception of America’s story: “Ingenuity, the engine of abundance, the business history of the country, and, above all, American ideals, both at home and around the world.” On the flip side, progressives embrace what Lepore dubs “the far-left American atrocity narrative….Everything that the United States has ever done in the world has been bad—begins with genocide, goes through slavery and conquest, imperialism, and down to where we are today.”

Lepore ultimately rejects both of these perspectives as selective. “Those histories buttress political arguments but neither of them makes sense as a historical argument,” she tells Preet. Lepore hopes that These Truths can help reconcile these divergent myths. She presents in parallel the brutality of the Civil War and the emancipation of slaves, the horrors of child labor and the successes of industrialization, the activism of 1970s anti-feminist Phyllis Schlafly and the fight to legalize abortion. For, as Lepore knows, “These are not two different accounts—they have always been mutually constitutive.”

We want to hear from you: Do you believe in a more triumphalist or more critical view of American history? Share your thoughts with us by replying to this email or writing to us at [email protected]

YOUR QUESTIONS, ANSWERED

Maria from Penn Valley, California, asks:

When a judge has been confirmed for a lifetime appointment in federal court is there ever a time when they can be fired or removed for failing to live up to the standard of their positions?

Yes. Article II, Section 4 of the Constitution—which sets forth the authority to impeach the president, vice president, and “all civil Officers of the United States” for “Treason, Bribery, or other high crimes and Misdemeanors,” governs the removal of federal judges. Most states follow a similar approach.

This raises the perennial question: if not “bribery” and “treason,” what type of misconduct meets the “high crimes and misdemeanors” threshold? Since 1803, only 15 federal judges have been impeached and only eight were convicted and removed from office. Douglas Keith of the Brennan Center notes that “the most common charges were making false statements, favoritism toward litigants or special appointees, intoxication on the bench, and abuse of the contempt power.” So, historical precedent suggests that federal judges can be removed from office for serious criminal and ethical violations, but not for rulings seemingly influenced by ideological or political views.

We hope you’re enjoying the CAFE Brief. Email us at [email protected] with your suggestions.

—The CAFE Team: Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, and David Kurlander

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