Just over a year ago, go-to blogger “sundance” at Conservative Treehouse previewed this point in a survey of Nancy Pelosi’s rule changes for the 116th Congress, which took office in January 2019 with a Democratic majority.
After Patrick Philbin of the president’s impeachment team made his opening remarks in the Saturday (25 January) impeachment session, sundance zeroed in on Philbin’s discussion of the House’s subpoena power to reiterate the analysis from last January, and point out what it means. (I read the sundance article from last year, in fact, but confess to having lost touch with the point in the intervening 12 months. This is clearly sundance’s area of expertise, incidentally. His/her briefs on the matter are comprehensive and extremely informative.)
The gist of the point is that during the impeachment “investigation” last fall, neither Schiff’s Intelligence Committee nor Nadler’s Judiciary Committee had the authority to issue valid subpoenas – “subpoenas” implying compulsory compliance “under penalty” (literal meaning of subpoena) – because there had been no full-House vote to inaugurate the relevant process and confer subpoena authority on those committees.
We’ll let that sink in first. What readers have been hearing described by the media as “subpoenas” from the House to members of the Trump administration were never actual subpoenas. They were mere request letters.
Impeachment article 2: Out the window
The most immediately significant follow-on point is that the second article of impeachment – the allegation of “obstruction of Congress” by the president – is therefore null and void. (I should clarify that I am stating this from my own analysis.)
Anyone is at liberty to think it’s shady, obnoxious, and unfair of the president to prohibit testimony or the sharing of information when requested by a congressional committee pursuing impeachment charges.
But in no way can that opinion – and that’s all it is, a non-adjudicable opinion – translate into a “high crime or misdemeanor.”
It’s arguably like an assertion of executive privilege (which is not a crime or misdemeanor), or at least what an assertion of executive privilege would look like, if there were an actual subpoena at issue.
But there were no actual subpoenas at issue. Not one. Moreover, as sundance and others have observed, there is precedent for all this in the impeachment investigation launched over the Watergate break-in and cover-up under Nixon. That means there was a remedy for the defect the Democrat-led House chose to go with. (The Republicans, in investigating Bill Clinton, followed the rule-set instituted for the Watergate investigation.)
There are topics for which Congress, in its oversight role, may request responses from the executive that effectively carry the force of a subpoena – but they are limited, and an impeachment proceeding is not covered under that umbrella. Therefore, the rule was set that for impeachment, the full House had to vote to charter the managing committee (i.e., the Judiciary) to issue subpoenas.
The full House never voted to do that. The impeachment inquiry proceeded without any such vote.
The president cannot be guilty of “obstruction” where there is no basis for construing obstruction.
No way to take ‘executive privilege’ to court
Another important point made by sundance (and alluded to by Philbin) is that in the absence of actual subpoenas, there is no mechanism by which the courts can rule on the enforceability of congressional requests for information relative to an impeachment.
With previous assertions of executive privilege in response to subpoenas, Congress has sometimes taken the president to court to get a ruling from the third branch of government. Readers may remember commentators like Jonathan Turley and Alan Dershowitz making this point repeatedly in the last couple of months.
But where there is no valid subpoena, and the topic of the congressional request doesn’t fall in an adjudicable category (i.e., an Article I oversight power being exercised by Congress), the courts have no basis for rendering judgment. Patrick Philbin makes this point in his remarks from 25 January.
That’s why President Trump didn’t have to assert executive privilege in his negative responses to the House (also pointed out by Philbin). Executive privilege wasn’t relevant, as there was no enforceable compulsion to respond on the House’s terms.
The media have frequently discussed the overall proceedings as if executive privilege were in fact being asserted (I’ve been guilty of that myself more than once). But Philbin clarifies that Trump has not in any instance claimed executive privilege in responding to the House committees. Justice Department counsel, says Philbin, signed off on every response in those terms.
An orchestrated strategy from the beginning – excluding House Republicans entirely
The final key point is brought into strong relief by the convergence of commentary from sundance and Philbin.
Start with Philbin’s. As he lays out his topic in the opening remarks, he speaks of how the House’s impeachment managers incessantly belabored their characterization of Trump’s stance toward the House as obstructionist. They were at pains to create the appearance of obstruction:
Manager [Hakeem] Jeffries … tried to portray, uh, a picture of what he called “blanket defiance” … that there was a response from the Trump administration that was simply, “We won’t cooperate with anything; we won’t give you any documents; we won’t do anything.” And it was blanket defiance, really, without explanation – that that was all there was, was just an assertion that we wouldn’t cooperate.
And he said, and I pulled this from the transcripts, he said that “President Trump’s objections are not generally rooted in the law and are not legal arguments.”
And that’s simply not true.
There was no substance behind the House managers’ repetition. They were deploying adjectives, not legal arguments. They were clearly trying to make the charge of “obstruction” seem like something the president is required to answer for – without assuming on themselves the obligation to make a case for obstruction that would survive challenge. (Jeffries’s assertion, in fact, is one that deflects challenge, by focusing on a vague, generalized criticism and imputed intent, rather than making a dangerous, easily impugned attempt to enumerate instances of what the president actually did.)
It’s all about impressions, not facts.
Philbin’s discussion reinforces that this matters. This is not a minor concern. The Democrats clearly know there is no foundation for the second article of impeachment, and they’re trying to establish through repeating adjectives what is not established as empirical fact.
Sundance, meanwhile, has had a series of analyses preceding this moment (see the top two links), which foresaw the moment clearly because the rule changes instituted by Pelosi for the current Congress set the whole thing up.
The most important aspect of the rule changes is that they exclude Republicans from any effective role in managing the House impeachment process. The rule changes enabled the Democrats to run a process that could summon willing witnesses (i.e., not under subpoena), but exclude Republicans from exercising a minority-party check on how those witnesses’ information would be obtained and used.
Willing witnesses were, of course, inevitably fated to be witnesses favorable to a partisan, Democratic interpretation of events. (Even that didn’t give the House Democrats the collection of smoking guns they would theoretically have been looking for.)
But more importantly, the series of willing witnesses, and the Democrats’ ability, by altered rules, to deploy them in such a way as to facilitate a party-line impeachment vote in the full House, served the purpose of getting articles of impeachment on the books without any good-faith involvement of the House Republicans.
Sundance recounts that Pelosi was already working on the relevant rule changes in November 2018, just after the 2018 election. There are a handful of changes, but again, the most important change is about excluding Republicans from a meaningful role. Examples offered by sundance include:
In previous oversight hearings depositions of witnesses could not be conducted by counsel unless minority members were also present. Pelosi removes that rule allowing an expanded team of House lawyers to question anyone regardless of whether there is a republican present to defend/protect the interests of the witness or target.
I urge you to read the entire series for more.**
Zooming out, to conclude the discussion here, three final points come to the fore.
The pattern of strategy continues
First, as sundance argues, it’s evident that the House Democrats foresaw managing an impeachment process in just this way. The idea was to ram through a process that could be accomplished without Republicans.
There might be limitations imposed by doing it that way. The inability of committees to issue valid subpoenas is a significant one.
But letting Republicans participate, in the manner prescribed by precedent, would give them rights in the process (e.g., a veto on rules for depositions, the guaranteed opportunity to ask their own questions). And doing that would let Republicans establish before impeachment articles were voted on that there was no basis for them. The risk of that was too great to be courted by letting Republicans in.
We can note before moving on that if the Democrats knew they would pursue impeachment on these terms, they presumably had a goal for impeachment other than simply establishing a legitimate basis for a Senate trial that would result in removing the president. There has been plenty of discussion of that possibility already, given the numerous irregularities and omissions in the process and the vaporous case for impeachment. The Democrats’ maneuver with non-subpoenas serves to bolster the relevance of those discussions.
Second point: this is the second time we have run into the larger feature that the charge of “obstruction” lacks any foundation in fact or argumentative construction.
The first time was with the Mueller operation. Although Robert Mueller’s charter included pursuing any instances of obstruction (and he characterized the manufactured process crimes with which several individuals were charged as obstruction of justice), it was highly disputable whether “obstruction” even applied to the matter overall.
The reason: there was no criminal predicate for any of it, as it related to the president or his team. There was nothing at issue that is described in statute law or the Constitution as a crime.*
Is it possible to actually obstruct justice if there is no crime at issue? Attorney General William Barr made exactly that point when the Mueller Report was published. Barr’s point was relevant because of the argument mounted by anti-Trump partisans: that Mueller refrained from charging Trump with obstruction solely because Trump couldn’t be so charged while in office. (A weasel-worded passage in the report seemed to open the door to that argument.)
The counter-argument from Barr, endorsed by a number of legal scholars, was essentially that there could be no obstruction anyway, if there was no crime. It’s not just a matter of whether Trump or his associates were detected doing something criminal. It’s a matter of establishing whether anything even happened.
To this day, that has not been established. We have a narrative about “collusion with Russian meddling in the 2016 election,” but we have no facts that can be construed as a criminal event that fits that description – as opposed to merely being a talking point in a partisan political story.
On this second point, note that the Democrats’ tactic in both cases has been using process – a special counsel, impeachment – to create an appearance of obstruction. In the Mueller case, Mueller even obliged them by gratuitously, and unprofessionally, stating in his report that although he didn’t find the evidence of obstruction required to bring a charge, he wasn’t exonerating Trump.
That gave the Democrats a window to do the same thing they’ve been doing in the impeachment case: flog incessantly the unsubstantiated theme that Trump is massively, overwhelmingly guilty of horrifically appalling obstruction.
Before moving on to the last point: note that the Democrats chose as their vehicles for “process” two unusual and especially manipulable ones, a special counsel and an impeachment. It’s not just the American people who don’t know off-hand what to expect from either of these process vehicles. The courts wouldn’t necessarily have a ready body of precedent to use in considering arcane developments. And some of the work may legitimately be accomplished with ad hoc decision-making, since these processes come up so seldom.
Processes like this are uniquely convenient for quiet manipulation. It took a while for the significance of Rod Rosenstein’s secret scope memo from August 2017 to sink in with the engaged public. And even at this hour, hardly anyone recognizes what a specialist like sundance saw coming, with the House rule changes instituted in January 2019 specifically to reshape the impeachment process. (Some Republican members of the House — e.g., the Freedom Caucus — have been clear on it for a while, as sundance has documented.)
The third and final point is a very simple one. None of this could get traction or place a real burden on our public business if the mainstream media were not complicit in it.
The media are complicit. They don’t just ignore significant concerns like that laid out by sundance, Philbin, and the House Freedom Caucus. The media have been the principal storytellers shaping the American people’s expectations for what this is all about, and what we should anticipate will come next. The people don’t know the House Democrats couldn’t issue actual subpoenas, because the media have treated the whole impeachment story as if the president in fact obstructed a congressional inquiry attended by subpoenas.
The media have also framed the “Ukraine investigations” story to make the president look as guilty as possible, just as they did the “leaks” from the Mueller operation.
But more than that, the media have participated actively in injecting fabricated “evidence” into the government process vehicles used to harass the Trump team. This enterprise has included publishing things from Fusion GPS’s unverified “dossier” (media stories that were then used in the FBI’s FISA applications); showing up to give a startled FBI the access code to Manafort’s storage locker; and writing “leaked” stories that were later used as references to make up 95% of the case laid out by the so-called Ukraine “whistleblower” in August 2019.
The mainstream media have a lot to answer for.
* The criminal charges against Russians for Internet and bank fraud had nothing to do with the president, or his associates who were charged with process or other crimes (e.g., Manafort’s banking and tax crimes). The Russian crimes were the only “underlying” crimes relevant to Mueller’s special counsel charter with which anyone was charged. And obstruction could not have been at issue for Trump or his associates who came under investigation, since they had no information about those alleged crimes by Russians.
** Of special significance, although it would require a lot of additional text to elaborate on here, is the section in this sundance post on Pelosi effectively setting up a mini DOJ-style general counsel team to work for her in the House. The ostensible purpose was to defend Obamacare from court challenges, but as sundance says, it’s obvious the team could be used for other things. Frankly, it is likely that this team had the lead on writing the “whistleblower” complaint about the Ukraine phone call, which is transparently a legal brief written by a team of lawyers, and not a workplace complaint composed by an individual.
That said, the rule changes that ensured Democrats could run an impeachment process without honoring any rights for House Republicans are the principal ones at issue.