This Morning’s House Judiciary Committee Hearing

game's afood

I turned it off when the 41 committee members—or however many there are—began their “five minute rounds.” Because how much fun can one human being stand? Here are just a few observations on what I did see.

Stephen Castor’s Rotten First Speech

Stephen Castor, Esquire, the Republicans’ lawyer did not, in my view, help his case one whit by an opening statement ignoring the issues raised by the Democrats, focusing instead on bias and process. If I shot Cock Robin on Fifth Avenue, I might argue that the prosecutor is biased against me, and that might even be true, but I still shot Cock Robin on Fifth Avenue.

Stephen Castor’s Workmanlike Second Speech

But when it came time for the respective counsel’s “testimony,” later on in the morning, another Republican lawyer showed up. Oddly, he was also named Stephen Castor, Esquire. The second attorney Castor’s job was to muddy the waters, factually. I have neither the time nor the inclination to express a view on every single point. Overall, though, my impression is that the second Stephen Castor, Esquire, did about as good a job for his side as could be done.

Doesn’t mean that he succeeded. Not by any means. But he did give the appearance of trying to meet the case against his client, not just yelling like a basshee.

Hence the picture I chose for the top of this post: the issues are joined. The Game is Afoot.

The Biggest Questions

IMHO, the most important factual questions remain: Why did Trump restore the aid? and Why did Trump restore the aid, when he did—which was right after he learned of the whistleblower?

Stephen Castor the Second got to this point rather late in his presentation, and I didn’t catch all the details. But I believe he was trying to argue that there was some kind of legitimate interagency review going on in early September, and that review was just about to lead to the restoration of the aid—when, as a matter of chance, happenstance, and random bad luck (for the Orange Man), news of the whistleblower came out.

True or False?

Now, this claim by Stephen Castor the Second is either true or it is false. If it is true, then there should be lots of documents backing it up. As far as I know, no such documents have been disclosed.

So, where’s the evidence for the Republicans’ alternative narrative?

Where’s the Whistleblower?

Stephen Castor the Second, being an actual lawyer rather than a random spaghetti thrower, said almost nothing about the whistleblower—the one Shouty Shirt and the rest of the sorry crew had ranted about. And why, pray tell, might Stephen Castor the Second have elected not to emphasize the whistleblower? Oh, what a mystery. Oh, what a conundrum.

Or, maybe not. Stephen Castor the Second did not want to draw attention to the whistleblower, because drawing attention to the whistleblower would only detract from his alternative narrative about why and when the Ukrainian aid was restored.

The Obstruction Question

My last observation relates to Castor’s effort to refute the obstruction charge. Think of it this way. Let’s say I’m a four-year-old, playing marbles with several other four-year-olds. One of them, Doofus Donald by name, gets mad with the rest of us for no good reason. So Doofus Donald says, “I’m taking my marbles and going home,” when he then proceeds to do.

I take it that the game’s premature end is our fault, because the rest of us didn’t chase after Doofus Donald and beg him, pretty please with sugar on top, to come back and bring his marbles.

No, Stephen Castor the First, and no, Stephen Castor the Second, that dog won’t hunt.

Multiple Felony Indictments

felony indictments

An Inconvenient Truth

Trump has a problem: the only way he can be reasonably confident he will stay out of jail is to overturn the rule of law and establish a banana republic.

Count the Felonies

As of this morning, more than 500 former prosecutors have signed this

STATEMENT BY FORMER FEDERAL PROSECUTORS

We are former federal prosecutors. We served under both Republican and Democratic administrations at different levels of the federal system: as line attorneys, supervisors, special prosecutors, United States Attorneys, and senior officials at the Department of Justice. The offices in which we served were small, medium, and large; urban, suburban, and rural; and located in all parts of our country.

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

  • The President’s efforts to fire Mueller and to falsify evidence about that effort;
  • The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and
  • The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.

Attempts to fire Mueller and then create false evidence

Despite being advised by then-White House Counsel Don McGahn that he could face legal jeopardy for doing so, Trump directed McGahn on multiple occasions to fire Mueller or to gin up false conflicts of interest as a pretext for getting rid of the Special Counsel. When these acts began to come into public view, Trump made “repeated efforts to have McGahn deny the story” — going so far as to tell McGahn to write a letter “for our files” falsely denying that Trump had directed Mueller’s termination.

Firing Mueller would have seriously impeded the investigation of the President and his associates — obstruction in its most literal sense. Directing the creation of false government records in order to prevent or discredit truthful testimony is similarly unlawful. The Special Counsel’s report states: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”

Attempts to limit the Mueller investigation

The report describes multiple efforts by the president to curtail the scope of the Special Counsel’s investigation.

First, the President repeatedly pressured then-Attorney General Jeff Sessions to reverse his legally-mandated decision to recuse himself from the investigation. The President’s stated reason was that he wanted an attorney general who would “protect” him, including from the Special Counsel investigation. He also directed then-White House Chief of Staff Reince Priebus to fire Sessions and Priebus refused.

Second, after McGahn told the President that he could not contact Sessions himself to discuss the investigation, Trump went outside the White House, instructing his former campaign manager, Corey Lewandowski, to carry a demand to Sessions to direct Mueller to confine his investigation to future elections. Lewandowski tried and failed to contact Sessions in private. After a second meeting with Trump, Lewandowski passed Trump’s message to senior White House official Rick Dearborn, who Lewandowski thought would be a better messenger because of his prior relationship with Sessions. Dearborn did not pass along Trump’s message.

As the report explains, “[s]ubstantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct” — in other words, the President employed a private citizen to try to get the Attorney General to limit the scope of an ongoing investigation into the President and his associates.

All of this conduct — trying to control and impede the investigation against the President by leveraging his authority over others — is similar to conduct we have seen charged against other public officials and people in powerful positions.

Witness tampering and intimidation

The Special Counsel’s report establishes that the President tried to influence the decisions of both Michael Cohen and Paul Manafort with regard to cooperating with investigators. Some of this tampering and intimidation, including the dangling of pardons, was done in plain sight via tweets and public statements; other such behavior was done via private messages through private attorneys, such as Trump counsel Rudy Giuliani’s message to Cohen’s lawyer that Cohen should “[s]leep well tonight[], you have friends in high places.”

Of course, these aren’t the only acts of potential obstruction detailed by the Special Counsel. It would be well within the purview of normal prosecutorial judgment also to charge other acts detailed in the report.

We emphasize that these are not matters of close professional judgment. Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. In our system, every accused person is presumed innocent and it is always the government’s burden to prove its case beyond a reasonable doubt. But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.

As former federal prosecutors, we recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk. We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report.

Foot, Meet Pistol

common mistake

Trump lashed out at Whitaker after explosive Cohen revelations, CNN has reported:

Trump was frustrated, the sources said, that prosecutors Matt Whitaker oversees filed charges that made Trump look bad. None of the sources suggested that the President directed Whitaker to stop the investigation, but rather lashed out at what he felt was an unfair situation.

The first known instance took place when Trump made his displeasure clear to acting attorney general Matt Whitaker after Cohen pleaded guilty November 29 to lying to Congress about a proposed Trump Tower project in Moscow. Whitaker had only been on the job a few weeks following Trump’s firing of Jeff Sessions.

Over a week later, Trump again voiced his anger at Whitaker after prosecutors in Manhattan officially implicated the President in a hush-money scheme to buy the silence of women around the 2016 campaign — something Trump fiercely maintains isn’t an illegal campaign contribution. Pointing to articles he said supported his position, Trump pressed Whitaker on why more wasn’t being done to control prosecutors in New York who brought the charges in the first place, suggesting they were going rogue.

The previously unreported discussions between Trump and Whitaker described by multiple sources familiar with the matter underscore the extent to which the President firmly believes the attorney general of the United States should serve as his personal protector. The episodes also offer a glimpse into the unsettling dynamic of a sitting president talking to his attorney general about investigations he’s potentially implicated in.

Trump, Meet Obstruction

As if the situation needed explaining, Josh Campbell of CNN explains, Trump’s relationship with Whitaker imperils the rule of law.

Hypocrisy, Meet Shame

Mr. Campbell and others have compared these current developments to the episode where Bill Clinton had a tête-à-tête with his attorney general, Loretta Lynch, during the Hillary email investigation. Although the conversation allegedly focused only on grandchildren, Ms. Lynch felt it necessary to recuse herself from involvement in the investigation, so as to eschew the appearance of impropriety.

Republicans’ failure to demand that Mr. Whitaker do likewise is cited as an example of political hypocrisy. And so it is.

Foot, Meet Pistol

Other commentators have made the attempted obstruction point and the political hypocrisy point, but have not, at least to my knowledge, made this additional, important observation.

With Trump having tried his damnedest to obstruct justice through direct and indirect communications with Whitaker, if Whitaker now lifts a finger to help Trump out in any federal investigation, it will—in consequence of those Trump communications—be very difficult for Whitaker to argue that he was just exercising his own independent judgment, within the scope of his reasonable discretion.

If Whitaker now lifts a finger to help Trump, the risk has greatly increased that Whitaker will wind up occupying the jail cell adjacent to Trump’s. Or that, like Attorney General John Mitchell, he will go to the hoosegow while the President gets pardoned.

Mr. Whitaker is a person of breathtakingly modest professional attainments. But he did graduate from law school.

He is a grifter, an unsuccessful businessman, and a failed politician who opportunistically hitched his wagon to Trump’s star.

But you can be all of those things and still have a street urchin’s sense of self-preservation. You can be all of those things and still be unwilling to go to jail for Donald J. Trump.

And that is why, in attempting to obstruct justice, Donald Trump has shot himself in the foot.

Wagon, Meet Star

And that is why Matthew Whitaker has hitched his wagon to the wrong damned star.

Matthew Whitaker’s Little Problem

lolcat problem

Washington Post, In Matthew Whitaker, Trump has a loyalist at the helm of the Justice Department

Matthew Whitaker, Mueller’s investigation of Trump is going too far

Jonathan Chait, Trump Has Found His Roy Cohn in Matt Whitaker

Matthew Whitaker’s Little Problem

Whitaker’s little problem is that he has promised Trump that he, Whitaker, will do a job that cannot in fact be done without Whitaker himself committing one or more felonies.

A good person would not make such a promise. Obviously.

More to the point, even an entirely evil person would not put himself in that position if he had even a soupçon of the self-preserving sense that God gave him.