Obstruction of Justice in plain sight: obstruction of an impeachment hearing on obstruction of justice (Updated)


Over the years, I have repeatedly warned you that “This is not your father’s GOP.” This is more true today than ever as the Party of Lincoln has been dramatically transformed into the Party of Trump, a criminal enterprise led by a third-rate mafia “Don” bent on destroying democratic institutions and constitutional democracy in pursuit of an authoritarian banana republic in league with other authoritarian tyrants around the world.

The next Democratic attorney general should use the RICO statute to take apart this criminal enterprise, seize its assets, and send its crime bosses to prison. Put this criminal enterprise out of business for good.

This was never more self-evident than the flagrant conspiracy to obstruct justice between Republican members of the House Judiciary Committee and smarmy soldier in the Trump crime family, Corey Lewandowsky, at the House Judiciary Committee’s first impeachment hearing held on Tuesday on the topic of obstruction of justice.

A side-by-side comparison of the House Judiciary Committee Nixon impeachment hearings to the efforts by Republicans Tuesday to make a mockery of the hearing and turn it into a farce drives home the point. Republicans used to respect the Constitution, the rule of law, and the pursuit of the truth. Now they only seek to obstruct justice for their third-rate mafia “Don” Trump. They are complicit coconspirators and accessories to his obstruction of justice and enablers of his ongoing crimes. Every one of these lawless enablers should be charged and held accountable at law. They must be removed from Congress.

Prior to the hearing, the White House blocked two former aides from testifying before House Judiciary Committee:

The White House claimed immunity over two former aides subpoenaed by the House Judiciary Committee, blocking them from answering questions in a Tuesday hearing about what they told former special counsel Robert S. Mueller III.

White House counsel Pat A. Cipollone directed Rick Dearborn, the former Trump campaign adviser and ex-White House deputy chief of staff, and Rob Porter, the former White House secretary, not to answer questions by the panel. The committee subpoenaed both ex-Trump officials — key witnesses in several instances of potential obstruction of justice laid out by Mueller — to testify Tuesday.

“The President has directed Mr. Dearborn and Mr. Porter not to appear at the hearing scheduled for Tuesday, September 17, 2019,” Cipollone wrote to House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) on Monday evening, later adding: “The Department of Justice has advised me that Mr. Dearborn and Mr. Porter are absolutely immune from compelled congressional testimony with respect to matters related to their service as senior advisers to the President.”

Once again, there is no such thing as “absolute immunity” from compelled congressional testimony with respect to matters related to their service as senior advisers to the President recognized at law. The only court to address the executive branch doctrine of immunity, The Committee on the Judiciary v. Harriet Miers, resoundingly rejected it, reasoning that:

The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of high- level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

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The interest in presidential autonomy proffered by the Executive does not support the assertion of absolute immunity here. In Nixon v. Sirica, the D.C. Circuit explained:

If the claim of absolute privilege was recognized, its mere invocation by the President or his surrogates could deny access to all documents in all the Executive departments to all citizens and their representatives, including Congress, the courts as well as grand juries, state governments, state officials and all state subdivisions. The Freedom of Information Act could become nothing more than a legislative statement of unenforceable rights. Support for this kind of mischief simply cannot be spun from incantation of the doctrine of separation of powers.

487 F.2d at 715 (emphasis added). That passage rather plainly contemplates that executive privilege is not absolute even when Congress — rather than a grand jury — is the party requesting the information. And a claim of absolute immunity from compulsory process cannot be erected by the Executive as a surrogate for the claim of absolute executive privilege already firmly rejected by the courts. Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate Congress’s historical oversight function.

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As the D.C. Circuit and the Supreme Court have made abundantly clear, it is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege. Permitting the Executive to determine the limits of its own privilege would impermissibly transform the presumptive privilege into an absolute one, yet that is what the Executive seeks through its assertion of Ms. Miers’s absolute immunity from compulsory process. That proposition is untenable and cannot be justified by appeals to Presidential autonomy.

As with the other witnesses subpoenaed by the House Judiciary Committee who have asserted this untenable “absolute immunity” defense under direction from the Trump White House and who failed to appear to testify under oath before the committee, the committee should vote to hold them in contempt of Congress and pursue civil and criminal remedies to enforce the committee’s subpoenas. This obstruction of Congress, an impeachable offense under Article III of the Nixon Articles of Impeachment, cannot be allowed to stand. This is obstruction of justice in plain sight.

As for former Trump campaign manager and soldier in the Trump crime family, Corey Lewandowsky, he has even less grounds to assert the privilege claimed by the Trump White House. Lewandowski was never an employee of the federal government nor an advisor to the president in the White House; he is a private citizen, over whom no executive privilege of any kind attaches to his communications with the president. Lewandowski Cleared for Limited Testimony in House Inquiry:

The White House counsel, Pat A. Cipollone, wrote to the committee late Monday, saying that Mr. Lewandowski would be free to discuss his work on the Trump campaign and matters that have already been made public by Mr. Mueller, but not any other additional communications he may have had with Mr. Trump after the election.

“In light of the long-settled principles discussed above, and in order to protect the prerogatives of the office of president, the White House has directed Mr. Lewandowski not to discuss the substance of any conversations he had with the president or senior presidential advisers about official government matters, unless the information is expressly contained in the report,” Mr. Cipollone wrote.

During the first half of his Congressional testimony yesterday, the belligerent Lewandowski repeatedly invoked this bogus claim of privilege like a talisman for refusing to answer questions. Lewandowski mocks Democrats, talks over lawmakers, promotes possible Senate bid:

Corey Lewandowski refused to answer questions, talked over lawmakers and mocked Democrats for their investigation of President Trump. He lectured a congressman for saying the tooth fairy wasn’t real, ribbed another for a failed presidential bid and even promoted a potential run for the U.S. Senate.

Under questioning, Lewandowski routinely asked for page numbers, feigned ignorance and otherwise dodged questions from Democrats.

“The White House has directed that I not disclose the substance of any discussion with the president or his advisers to protect executive branch confidentiality,” he said repeatedly. “I recognize this is not my privilege, but I am respecting the White House’s decision.”

[Democrats] got a front-row seat Tuesday to the Lewandowski Show — a performance aimed at an audience of one: his former boss.

This was obstruction of Congress, an impeachable offense under Article III of the Nixon Articles of Impeachment, and cannot be allowed to stand. This was obstruction of justice in plain sight.

Trump, who was watching, applauded Lewandowski on Twitter, writing that he gave a “beautiful” opening statement. But Lewandowski’s defiance and disregard for Democrats’ impeachment inquiry also prompted a contempt threat from Democrats.

“Mr. Lewandowski, your behavior in this hearing room has been completely unacceptable,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said. “You have shown the public that the Trump administration will do anything and everything in its power to obstruct the work of the Congress.”

Several members of the committee called for Lewandowski to be held in contempt. I fault Chairman Nadler for not doing so immediately, as has been done in past committee hearings historically. He is being too cautious and deferential. Pelosi says she would have held Lewandowski in contempt ‘right then and there’.

This sneering smarmy Lewandowski should be held in contempt of Congress and prosecuted. As Michael Tomasky writes, Lewandowski Gave Congress the Finger. Dems Should Break It. And whatever fantasies this piece of shit had about running for Senate should be over after his shockingly outrageous and contemptuous performance before the committee. America does not need someone of his low criminal caliber of character in the Senate.

The five-hour-plus hearing did produce confirmation from Lewandowski of one key element in the Mueller report. Under intense questioning from committee counsel, the former campaign manager affirmed that the president personally asked him to persuade then-Attorney General Jeff Sessions to limit the special counsel’s investigation.

Lewandowski never delivered the message, the report found — instead passing it off to another Trump official [who failed to appear to testify].

Jennifer Rubin of The Post writes, The best evidence of obstruction of justice:

To be clear, the president has no authority to tell a witness not to show up. The president has no absolute immunity to prevent ex-aides from testifying. And he really has no basis for instructing a private citizen who never served in the White House to obstruct an investigation. And that is what he did, according to Lewandowski.

UPDATE: Constitutional scholar Laurence Tribe weighs in: “Communications by the president to a crony asking the latter to carry out a criminal act on the president’s behalf are covered by no privilege and subject to no immunity, and the president’s lawyers as well as the Justice Department lawyers must know as much.” He added, “Today’s spectacle was just another chapter in the ongoing criminal obstruction of justice in which this president has been engaged for well over a year, obstruction of justice designed to cover up the president’s illicit dealings with a hostile foreign power to help him acquire his office and to hold onto it.”

In response to a slew of fact-based questions, Lewandowski responded: “The White House has directed me not to disclose the subject of any discussions.” In short, he is not answering questions under oath in an impeachment hearing because President Trump told him not to.

Lewandowski is on thin ice — well, maybe hip-deep in water — if the House goes to court. I cannot think of any basis for a court to allow him to get away with such nonsense. Lewandowski will appeal, and depending on whether the court stays the order or not, Lewandowski may be ordered back to testify. If he still refuses, then we will know Trump instructed Lewandowski to violate a court order.

And so it goes. At this point the most glaring obstruction, the most comprehensible, is the president’s obstruction of impeachment hearings. If a president can prevent the House from formulating impeachment articles, then the president has literally no constitutional restraint on his conduct.

“This is a circus. It’s Trump making a mockery of our system of government, and its checks and balances, because he is afraid of what will happen if the American people ever hear the truth,” says former federal prosecutor Joyce White Vance.

Congress should go to court to compel Lewandowski’s attendance. One of the questions they can ask him, if he ever testifies, is who precisely told him not to answer questions. Was it Trump? If not, did he understand the order to come from Trump?

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Meanwhile, Speaker Nancy Pelosi (D-Calif.) has vowed to follow the facts. As difficult as it must be, the House must continue to fight in court to require the cooperation of witnesses. At some point, the obstruction article becomes the obstruction of an investigation into obstruction.

Welcome to the Trump era.