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February 6, 2020

Note From Elie: The Calendar Has Bailed Trump Out

Dear Reader, 

Time is a funny thing when you’re a prosecutor.  In the day-to-day grind, time can feel impossibly compressed.  The crush of work from dozens of cases can be overwhelming, and the demands of a given day seem nearly impossible.  I sometimes flip back through my old daily calendars — old school, on paper, handwritten in pen — and wonder how I managed.  For example, on Thursday, July 20, 2006 (to open the planner more or less at random), I argued two bail motions, handled an arraignment, took two guilty pleas, interviewed a cooperating witness, did a sentencing hearing, wrote part of an appeal brief, and submitted a wiretap affidavit to a judge. 

But in the broader sense, a prosecutor has all the time in the world.  Prosecutors usually can take as long as they need to build cases. The only constraint is the statute of limitations — the amount of time a prosecutor has to bring a charge after commission of a crime, typically five years.  Complex criminal investigations often take months, even years. A prosecutor usually has the luxury of building a case and charging it only when it’s good and ready.

But Congressional Democrats had no such luxury in making their case to impeach and remove President Donald J. Trump.  Politics and the electoral calendar demanded almost impossibly quick action from the House and Senate. Trump and his legal team recognized and strategically exploited this time pressure.  Indeed, Donald Trump’s greatest asset throughout the impeachment process has not been the facts, or the law, or common sense, or morality, or public sentiment — but the political clock. The calendar, more than anything else, has bailed Trump out.

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When the Ukraine scandal broke in September 2019, House Democrats faced a difficult dilemma.  Option A: take the time necessary to investigate (and litigate) fully — but risk losing political and public support with a prolonged process that would have run into the heart of the 2020 campaign season, perhaps right up to or even beyond the November election itself.  Option B: set a five-month (or so) horizon, gather as much evidence as possible, forego protracted litigation, and put on the best case possible given the restraints.

House Democrats faced a no-win decision, and chose Option B.  I believe they chose the better of two imperfect options, given the harsh realities of the calendar.  Litigation takes time. Even if the House had immediately issued subpoenas to key witnesses, litigated to enforce them, and requested expedited rulings, it would have taken months to get a final decision.  Had House Democrats gone to court in late 2019, they’d likely still be stuck there now. Given the upcoming elections, and the limited public appetite for prolonged impeachment proceedings, House Democrats judged that scenario to be politically unpalatable.  And Trump became the unwitting, undeserved beneficiary of a political windfall.

But what if the Ukraine scandal had broken in September 2018, rather than September 2019 — with two years (rather than one) until the next presidential election?  First, if House Democrats had more time, they could have subpoenaed and then fought to compel testimony from crucial first-hand witnesses including John Bolton, Mick Mulvaney, and Mike Pompeo.  Bolton, in particular, could have been a game-changer; the New York Times reported that Bolton wrote in a manuscript that Trump explicitly tied foreign aid to Ukraine to investigations of his political opponents.

House Democrats also could have gone to court to enforce their subpoenas for internal White House documents that could have established a timeline — and potentially Trump’s motivation — for the hold on foreign aid.  Even a smattering of documents obtained by journalists through Freedom of Information Act lawsuits put the decision to hold aid squarely at Trump’s feet: “clear direction from POTUS to continue to hold,” an Administration official wrote in one e-mail.

Trump almost certainly would have tried to block those subpoenas by claiming executive privilege; he vowed to do so during the impeachment trial, had the Senate tried to subpoena Bolton.  Had the House had more time, it could have litigated fully that executive privilege claim, which  I believe the courts ultimately would have rejected, on several grounds: (1) Trump likely waived the privilege, as argued persuasively by Barbara McQuade in The Washington Post, (2) executive privilege should not apply at all in impeachment, as explained by Jonathan Shaub in The Atlantic, and (3) even if it did apply, executive privilege is not a general shield to hide wrongdoing, as the Supreme Court recognized in its seminal 1974 decision in United States v. Richard Nixon.

If the courts had rejected Trump’s executive privilege claim, then the informational floodgates would have opened.  And if House Democrats had had the luxury of time to litigate, then Article II — charging Obstruction of Congress based on Trump’s blanket defiance of all House subpoenas — would have had more teeth.  Trump’s team argued against Article II by claiming, correctly, that House Democrats never even sought to enforce their subpoenas in court. How can it be impeachable to resist subpoenas when we don’t even know for sure if the White House has a legitimate legal basis to resist?  But if House Democrats had time to litigate, we would have known for sure whether the White House’s resistance was legally justified. If not, then an Article of Impeachment for Obstruction of Congress would have been rock solid.

All things considered, House Democrats did the best they realistically could have done.  They put together a compelling case, in a remarkably short time — even without internal documents or testimony from Bolton and other insiders — based on testimony from patriotic public servants who defied Trump and came forward to testify:  Bill Taylor, Fiona Hill, Marie Yovanovitch, Alexander Vindman, and the rest. But ultimately Trump’s team managed to keep the full truth hidden through an inelegant but brutally effective tactic: they recognized time was short, and they stalled until it ran out.

Stay Informed,


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