On Monday, the House Judiciary Committee held its latest hearing in the impeachment inquiry of Donald Trump. The hearing further confirmed two main themes that have run throughout these hearings. First, Republicans are opting for disruption and process complaints over substance in their defense of Trump. Second, Speaker of the House Nancy Pelosi made the correct call in delegating the bulk of the work to the House Intelligence Committee rather than the Judiciary Committee.
Republicans attempted to disrupt the proceeding with interruptions, shouted procedural motions, and personal attacks on Democratic members. Both the Republican-sponsored testimony and the questions by their counsel avoided engaging the facts of the Ukraine case, instead focusing on establishing a narrative that the proceeding itself is illegitimate, merely part of a long-running Democratic effort to “overturn the results of the 2016 election.” The strategy was twofold: To inflame the suspicions and resentments of Trump’s most ardent supporters and, by denying even obvious facts, sow confusion among those just now focusing on this scandal. The objective throughout has been to ensure that the anger of Trump partisans and exasperated uncertainty among the rest of the citizenry will deflect attention from the evidence.
The job of Democrats, therefore, was to counteract a Republican strategy of belligerence and diversion. Of course, nothing the Democrats could have done would ever penetrate the adamantine carapace of House Republican loyalty to Trump. The Democrats’ audience was outside the hearing room—the relatively small, remaining segment of persuadable members of the voting public and (perhaps wishfully) a handful of arguably persuadable Republican senators.
To maximize their effect on these audiences, Democrats needed to do three things: First, lay out the facts of the Ukraine affair thoroughly, rationally, dispassionately, and understandably. Second, and critically, explain in terms the average American can understand why what Trump did was not merely a violation of behavioral norms self-evident to lawyers and career public servants, but mattered because it was dangerous to the security of the nation. Third, maintain throughout an air of calm professionalism.
I’d assess that Democrats were partially successful in achieving these three objectives.
But there were some notable missed opportunities, several of which were exemplified by contrasting the opening statements of Judiciary Committee Democratic counsel Barry Berke and Intelligence Committee Democratic counsel Daniel Goldman.
Berke was acting as attorney for the Democrats when he made his opening statement.
Goldman was, formally, a witness whose job was to lay out the evidence gathered by the Intelligence Committee.
Berke’s opening suffered from two defects. First, it seemed too adversarial, too eagerly partisan. The Republicans’ tale is of Democrats so rabid to destroy a legitimately elected president that they will seize any pretext to bring him down. However much one may disapprove of Trump, he is the president, and any impeachment of the holder of that office should be experienced, and thus portrayed, as a somber and sorrowful duty. Berke, in some measure like the Judiciary Committee for which he works, appeared too obviously to be seeking Trump’s downfall.
Second, and this is a bit of advocacy advice all new lawyers should take to heart, Berke was not as effective as he should have been because he seemingly had not written out his statement—perhaps because he sought to appear spontaneous and unrehearsed. An appearance of spontaneity is much valued by law school teachers of advocacy, but the price of a spontaneous-seeming style is too often a deficiently crafted factual narrative. Berke was choppy and rather hard to follow for anyone who didn’t already know the facts of this case. Worse still, he largely failed to place Trump’s extortion of Ukraine in its proper context—not merely as a deplorable misuse of power for personal gain, but as a subversion of America’s coldly calculated national interest in the peace and security of Europe.
It’s worth noting that, although Berke’s opening might have been better, his cross-examination of Steve Castor, Republican witness (and counsel), was very effective. This will not surprise trial lawyers. Berke is a defense lawyer. The stock in trade of the defense bar is challenging testimony on cross, not assembling a fluid, persuasive factual narrative.
By happy contrast, Daniel Goldman’s opening presentation was carefully crafted to the last word. It did the things that needed to be done. It detailed facts. It wove them into a narrative. It explained why they mattered and why they were of sufficient gravity to merit impeachment. Yet throughout, Goldman never hinted at personal rancor against the president or intimated any motivation other than constitutional obligation. The thoroughness of his preparation for the set-piece opening also prepared him for admirable responses even to personally provoking Republican questioning.
For careful observers, the contrast between Berke and Goldman suggests one reason Pelosi delegated the bulk of the Ukraine impeachment work to the Intelligence Committee.
The House’s inquiry into Ukraine scandal has demanded both substantive investigative rigor and a presentational style that combines thoroughness and emotional control. The Judiciary Committee’s Democrats didn’t do badly on Monday, but they owe a great debt to the members and staff of the Intelligence Committee.