This Week In Impeachment: The Tortoise and the Hare

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S1: Previously in impeachment when I think about the metaphor of what changes this week. It’s like one of those Renaissance paintings where they paint over and paint over you know it layers and layers of paint. And it’s amazing how the story doesn’t change. The story is unbelievably consistent. You have witness after witness just layering over what we originally heard.

S2: But even his new testimony implicated the president his supporters in Congress stuck with him.

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S3: I think this week was actually a little bit a setback for Democrats who hope that they can you know convince Republicans to come over and quote unquote do the right thing just because we had a vote this week where they got zero Republican support. The vote to open the impeachment inquiry. Those in favour. Please say. Those opposed.

S4: Say no opinion of the chair.

S1: And some White House insiders signaled they’d be keeping their mouths shut at least for now unless those people can be forced to sit and answer questions it becomes. Well that was an interesting little Ukraine scandal we enjoyed that in September.

S5: We’ve moved on Dahlia Lithwick Jim Newell.

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S2: Welcome back to impeachments again. It’s kind of like Groundhog Day but I have to say look here’s what I thought when I thought about this week when I thought about this week I was just like the easy work is done.

S6: It feels a little bit to me like the Democrats when they started this investigation it was like it was like a gusher like they just ate. People just came out of the woodwork and had lots to say. It was like you were you know opening up an oil well in Texas in like 1945. You know there’s just there’s lots going on there and now we’ve reached the point where it’s not that easy we’re kind of having to frack for information on both sides we’re having to like dig in and do a little hard work. I don’t know if you agree with me or disagree with me. That’s my theory of the week.

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S3: I mean I think that they don’t really even need to frack. I think they have all the evidence that they that they need that they think they need they’ve sort of given up this week on John Bolton testifying just because there gonna have to go through the courts and they’re like well we don’t really need it because we have enough and we can just add anyone else who doesn’t testify to the obstruction articles so I don’t know if there’s really any need to frack. Given that they have several witnesses already admitting to a quid pro quo.

S7: This reminds me very much of two years and 448 pages of the Mueller report later. America looked around and said wait he confessed to cramming to Lester Holt. Like it feels like that you know like why do we have to keep digging deeper and deeper and deeper for evidence when there’s like a big flag planted outside that says a crime.

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S2: Yeah I mean I feel OK. So I accept what you’re both saying that the evidence is there and I’m just going to just to summarize where we are. There is ample evidence that the White House withheld military aid to Ukraine in the hope that it would encourage that country to open investigations into Trump’s political rival Joe Biden. In fact there was some reporting at the end of this week that the Ukrainian president himself was set to do an interview with CNN announcing these investigations at the behest of the White House. But that effort was scuttled when Congress began to get wind of what was going on. But that said I would say the fracking is still happening because Democrats haven’t convinced everyone and they want to convince more people. So they’re still gathering evidence. They’re still trying to convince people of what happened here. Democrats they’ve had a lot of luck in this investigation. As we said. But there have been a few government holdouts people who are saying listen we’re not going to testify right.

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S6: We have Mick Mulvaney who is supposed to show up today potentially. He’s the chief of staff for the White House and he’s like that. We have this guy Charles Koppelman who’s the deputy national security adviser for Trump. And then we have John Bolton who’s the former national security adviser and all these people seem to be saying if you want me to show up you’re gonna have to work a little harder here for it. So Dalia can you talk a little bit about the strategy the Democrats are using because they are still trying to get these people in right.

S7: There’s a fundamental time problem here and it has been a time problem since April when the House Judiciary Committee you know having read the Mueller Report said Huh. I think we need to talk to Don McGann since he was either a party to or a witness to a whole bunch of obstructive episodes that Mueller chronicled.

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S6: And just to interrupt you here so Don McGann former White House counsel and was in the Mueller report basically laying out a lot of incidents that were incredibly questionable. And Congress really wanted to talk to him. He said no thanks.

S7: Right 160 times he shows up there in the obstruction section. He’s he’s the Where’s Waldo of obstruction. And the Judiciary Committee subpoenaed him and the White House came back and made this very very fanciful out of whole cloth claim that he has quote absolute immunity he cannot testify to anything. And then I think you have the problem of the glacial pace of the judicial system. That case was finally heard October 30 first. Happy Halloween. I’m again in a federal courthouse in Washington D.C. federal district judge Caetano G. Brown Jackson hears of the White House’s claims essentially just chuckles at the claim there because the claims are you can’t hold us to account.

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S6: Basically that those are their claims and we should play remind people why are we going back to the Mueller report here when we’re talking about the impeachment inquiry which is something different.

S7: Well I think it’s because this is the same principle that they’ve now extended when they say Cooperman and bolt nobody even if you’ve left that the White House even if you were not a senior adviser. Nobody gets to talk ever to anyone. The other claim that they were arguing by the way in Judge Jackson’s court was that there’s no role for the judiciary here at all. That the judiciary should not even be interceding in this fight because it’s not appropriate. And I think Judge Jackson had very little patience with that she made it sound as though she is going to rule in the Don McGann issue in the next week or two and in the meantime when it became manifest that Koppelman and then Bolton who’s represented by the same lawyer as Cooperman when they started saying we’re not showing up without a subpoena we need this to be adjudicated in the courts as well. Judge Leon who’s right down the hall from Judge Jackson said yes this is urgently important and I will docket it for December 10th so oh not super fast.

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S8: Well that’s I mean that is lightning speed for the federal judiciary.

S7: But it’s clear that that’s not impeachment speed. And so what happened this week was Democrats in the House said that’s fine we’re going to let the Don McGann case stand as a proxy for adjudicating this claim. Everywhere we’re not going to sit around and wait until Judge Leon sometime in December or possibly January rules on this. So that was the decision it was essentially a way of saying we’re going to put all our eggs in the basket that whatever Judge Jackson decides with respect to McGann will hold for everybody else with the huge caveat that this will be appealed to the D.C. Circuit and that then it could go to the Supreme Court. So we are almost watching a tortoise Hare problem where the tortoise is the courts and I should just note parenthetically because this is interesting there’s turtles built into the Supreme Court building everywhere like if you. What does that mean they’re little stone turtles like well built into the lake if you go out in the courtyard it’s they’re proud they embrace the slowness of the judicial process because it’s deliberative.

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S8: But if you are Adam Schiff and you would really like to have Don McGann in there testifying to the crimes or John Bolton or Mulvaney or cut Berman then the turtle thing is is not super duper helpful like they want to just put a little rocket engine on that turtle and speed this thing up.

S6: And what I thought was interesting was that Adam Schiff sort of did this really interesting strategy where he said OK we have subpoena Charles Cooperman this guy who is the deputy national security adviser. He said No I need the judiciary to tell me what to do here decide between the executive branch and Congress. But we’re going to UN subpoena him. We’re going to retract that subpoena and tell him we would like you instead to pay attention to whatever happens over here with this Don McCann situation just to speed it up. But then also was it a potentially more favorable judge.

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S7: Well I think for sure Judge Jackson it was clear in her courtroom that she did not have a lot of time or patience for the arguments that the White House was making. And I think that there’s reason to believe that Judge Leon who had dockets the the Cooperman and probably Bolton arguments also was inclined I think to take this very seriously and as I said to go as fast as possible. But I think it’s just a sense of we’ve got a horse coming in possibly weeks earlier and given just that the impeachment deadline is so tight. I think it made sense to just assume that whatever Judge Jackson decides will hold again with the caveat that it’s still going to get appealed.

S2: Here’s my question. Looking at the strategy can they do that.

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S6: Like can they say we want you to pay attention to this case over here. Because if I’m the White House I’ll just say like No we have our own case over here that needs to wait.

S7: Yeah I mean I think what they are saying and what they have been saying is that whatever the legal principle when a judge makes a determination about fundamentally the same claim of quote absolute immunity that that would hold for everybody in their related cases. I mean certainly I think Cooperman could say no I want to go ahead and have my own litigation. I think it was a way of signaling two things one were picking the fastest turtle which is clearly what’s happening but also that we have to make provisions for the fact that we’re not going to get all these witnesses in time that it’s entirely possible we have to do this without John Bolton appearing and we want to construct a set of inferences from which we can deduce and later the Senate can deduce that they simply obstructed that they. This is part of an Adam Schiff has said this from the beginning. We will draw the inference every time they preclude someone from coming and telling the truth. This is part of their attempt to stymie this investigation and we will draw that inference and by the way again that was one of the articles of impeachment against Nixon was that he was making it impossible to investigate.

S2: So do we think we’re going to see John Bolton or any of these people who are holdouts actually come in front of Congress or not.

S3: Well I don’t think so. No I think they’re still trying to get this done by Christmas pretty much. And Bolton has said like he would go if he had to but he isn’t Haftar now so yeah I don’t I don’t think it’s going to happen.

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S2: Hmm mm hmm. Something else happened this week which is we saw some potential Trump loyalists begin to rethink their approach to this investigation most notably Gordon Sunderland. This is the U.S. ambassador to the EU who seems to have played a key role in this withholding of aid to Ukraine. He’s a political appointee rather than a career diplomat. And this week he released three pages refreshing his recollection is I believe how he put it. Basically saying OK well maybe maybe there was a quid pro quo. Jim do you want to talk about what he said in these in these updated pieces of testimony.

S3: He sort of got a little bit of trouble when Bill Taylor who is the acting ambassador to the Ukraine said in his testimony that Gordon Sandlin told him that there was basically a quid pro quo here that the administration wanted presence Zelinsky to announce these investigations in exchange for the 400 million aid. So then Gordon someone who’s just as you said he’s just a donor he’s just a hotelier from Oregon you know he’s he’s suddenly pretty nervous. So he goes back in and says he refreshes recollection. And he said oh yes he actually he did. And this is where it gets complicated. He says he presumed that that’s where the quid pro quo was. So there’s a little bit of wiggle your way there. Yeah a little bit of wiggle room that Republicans are you know all holding on to is as much as they can.

S7: It’s very clear that I think his initial statement he really felt that you know a he was being a good soldier he kind of head trumps back and he was denying that the central you know the Keystone claim and that that was going to protect him and I don’t think he thought that all the people who spoke after him were going to essentially say he was a prime mover of this scheme. He knew about the quid pro quo that these claims that he had. I knew it was Barry’s Mo. But I had no idea was about the Bidens until much later. I mean he’s still not completely coming clean.

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S2: I was going to say he’s still leaving himself room to sort of wiggle away.

S7: I mean I think that this is this fault line between the people who are showing up and not showing up a lot of the people who are not showing up are themselves implicated. Right. Like that’s why Mulvaney snow can show up he’s in trouble right. I think that Rick Perry can’t show up the people who are Giuliani. I mean he’s lawyered up he’s not showing up and I think that the people who are not implicated in any way. It’s very easy even without a subpoena or even without a court order for them to come and say what they know Sunland is right on the front line because he’s the guy who is in the room. He’s the guy who’s actually saying initially well I didn’t know it was a quid pro quo and now well I kind of knew it was quid pro quo but I didn’t you know he’s one of the very few I think actors in this who showed up thinking he was not implicated and now he is.

S2: Right. And when one more person came forward this week and it was sort of a surprise to me this guy Lev Parness he’s a Ukrainian businessman who was acting as a bit of a surrogate for Giuliani abroad. He was a Trump donor and he was arrested a couple weeks back. He now says he’s going to cooperate with the impeachment inquiry. How big of a deal is this Dalia.

S7: I mean I think it’s a fairly big deal. It’s probably worth saying that you know a lot of the people who have cooperated have kind of only half cooperated and that was certainly true of the Mueller Report. You know we have people like Flynn who are now saying oh you know the whole thing was a frame up like I think it’s very hard to know when people are part of the roll up whether what they’re saying is truthful or useful until we know what they’re going to say. But I do think and this is why it’s interesting to keep your eye on Giuliani and the ways in which it seems as though the plan now is to throw Giuliani under the bus. I mean it seems as though there is I don’t know if Jim agrees but to the extent that they’re starting to circle the wagons and protect people it feels as though like Giuliani is on the outside of the wagon. And I think that certainly the question is going to be at what point does Giuliani start to say like I have to protect myself. And I think Parness is the he’s the one who you know connects you. Who gets roles you up to Giuliani in some sense.

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S3: What do you think Jim. I mean I’ve been waiting for Rudy Giuliani be thrown under the bus for weeks now and it amazes me that he still has even the closest tangential connection to Donald Trump right now he’s like I mean he is still his personal lawyer right. Which is amazing. I mean it seems like it be very easy to just say this was Rudy freelancing you know and that’s a way for everyone else to wash their hands of it. But I think that maybe is incompatible with Trump’s continued insistence they did nothing wrong in the first place. So if you want to throw Rudy under the bus you know then you have to sort of admit that these negotiations are talks with the Ukrainians over this stuff was wrong in the first place and you know now Trump is not quite there yet and will probably never be there. It’s just a matter of whether the rest of the Republicans actually get there.

S2: Yeah I mean the president made this statement of support for Giuliani by kind of being seen with him in public and you know asserting that they were still working together and you do wonder when that might end well.

S7: Also I think it’s really important that this was the week that Giuliani started tweeting I was working on the behest of my client. I mean he has toggled back and forth we’ve even talked about it that sometimes he claims his client was the State Department. Sometimes he claims his client was the president sometimes he claims you know it was the office of the White House. So I think it’s very very interesting. You know he’s back to saying I was out there on the hustings representing my client. So he’s toggled back to dragging the president into it.

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S6: So he’s kind of lashing himself to the mast here and saying if you bring me down you’re gonna bring that guy too.

S9: I think so. We’ll be back in just a moment.

S2: I want to talk about one more thing which is over the past month we’ve seen conservative news outlets begin to sort of leak the idea of this is who the whistleblower is the whistleblower being the person who started us off on this inquiry. You know they’ve released a name and no one has confirmed or denied it. It was interesting because this has become a real defense of the Republicans. You even saw Lindsey Graham coming out and saying we need to really talk to the whistleblower we need to understand who that person is. So this has become a real part of their defense.

S10: You can’t prosecute somebody. Impeachment is the political death penalty based on an anonymous source. So yes we need the whistleblowers name we need who they are and they need to be cross-examined under oath about any biases they may have.

S2: Number. But this past week Donald Trump’s son showed up on the view and he was there theoretically to talk about his new book but it ended up being this very uncomfortable interrogation about his Twitter feed because this past week was the first time we saw Donald Trump junior tweeting out information that could link this name with the whistleblower the whistleblowers name was on a little Web site called The Drudge Report.

S11: A couple of days ago it wasn’t really real clear politics. I literally quote tweeted an article that had the guy’s name in the title of the article. So that whole thing is what I wish the oh and you saw the women on The View.

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S6: No take Donald Trump junior down you know and basically just say you can’t do you can’t do this we have laws.

S12: The whole point of releasing a name is to intimidate someone to threaten someone and to scare other people from coming out. That’s something that dictators do. I’ve lived in China I’ve seen that firsthand. That’s not what America does. That’s not who we do we don’t we stand by our people why did you want to release them.

S2: And it was interesting to me because it made me wonder if this strategy is going to work for the Republicans. They’re pretty committed to it. They’re pretty committed to the idea of this all goes back to the whistleblower and the whistleblower. He’s someone who worked with Joe Biden and we need to keep that in mind. This is politically motivated. Jim I wonder how you’ve seen the whistleblower conversation play out on the ground in D.C..

S3: Well it’s a. First of all there is that person who you know not just Donald Trump is tweeting out the article with his name but Rand Paul also tweeted it out. Rand Paul also said at a rally with Donald Trump this week that the media is being cowardly for not naming this person. One reason I’m not naming the person is because I don’t know if the person that they’re fingering is actually the person but there’s a bit of an urgency now for Republicans to come up with something and they really hope it’s this person because this person yet does have ties to Democrats has worked with Democrats before and wanted you know prove that it’s all a deep state plot. So I understand exactly why they’re trying to do it. But you know it’s also very secondary and that the core of what the whistleblower put out there in his report you know has been seconded by so many witnesses so it’s not really quite necessary but I think they’re just ignoring all of that and trying to bring this back to where it started to show that you know this is just Democrats trying to launch a coup. We do seem to be in this very strange state right now where this person’s name is out there. You can go and find it. I have no idea of it to that person but I know there’s sort of this door reality we’re living in right now.

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S2: Yeah I mean it’s interesting to me to learn you know there were Republican donors who are buying ads on Facebook that were putting this person’s name out into the world and you realize just how dirty this was getting.

S3: Yeah there’s like hundreds of thousands of impressions on all of these things that are naming this person. So it does seem a little bit untenable that we’re sort of like I mean I would like to confirm for myself before I even believe any of this you know but it just a lot people have seen it. And yet no one quite knows what to do with this name.

S13: Yeah I think that there’s this deadly serious part of it which is Facebook took hours to take down you know hundreds and thousands of people viewing the name. This is no different from Alex Jones outing wrongly the name of a juror in the Roger Stone case this week you know posting and photograph posting a name hundreds and thousands of people listen to him. I mean this is pizza gate again you know we don’t know as Jim says if if the foreign reports of who the CIA person is you know detail that the White House is correct or not but that’s not the point. The point is you have thousands of people who are willing to say the name you know pass on the name. Under this theory of you know we are persecuted in the mainstream media is you know coming after us so we’re going to throw other people to the wolves. But this is like a deadly serious thing we’ve seen what happens when Alex Jones and conspiracy theorists put out false narratives falsely about false people like somebody shows up with a gun.

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S7: Right. So this is not you know for Donald Trump Junior I mean you can say and I think it is true it’s not clear there’s a statute that’s being violated right now. But the whistleblowers lawyers are saying his family these people have existential fears for their lives. And here’s Donald Trump Junior like yucking it up you know on the view the sense that this is a joke or a game when people’s lives are at risk. And to be clear for the hundredth time the whistle blower broke no law. Right. That’s staggering.

S2: And the thing that’s interesting to me is Jim you sort of talked about it is like we’re at this point where you can feel it bubbling under the surface and you’re waiting for it to break through. And next week we’re going to see public testimony. And that means that there are going to be Democrat and Republican Congress people up there asking questions and it raises this idea of what are people going to say once they have those C-SPAN cameras on them rolling and transmitting live. Are they going to mention the possible name of someone who could be a whistleblower like what’s going to what’s going to happen. How do you think about that Jim.

S3: I mean I think it’s very possible that they might name him next week. I when I’m look at these public hearings next week I just wonder if it’s going to very quickly confirm Democrats strategy that they were correct to do this behind closed doors to get all the initial information because I think it’s just be a mess and I think it’s key Republicans interests to make this an entire mess and to polarize everyone over what happens and to make it look like a witch hunt or something. You know we’re going to see this whole process sort of revert to the dirtiness that you usually see in congressional hearings. And I just expect a lot of stunts. I guess you could say.

S14: Dalia. Jim thank you so much for joining me. Thank you.

S15: Thanks. Dial it quick. And Jim Newell our fantastic human beings who show up here every week. They also write for Slate. That’s your impeachment news roundup. What next is produced by Mary Wilson Jason de Leone Danielle Hewett And Mara silvers. We had extra help this week from Melissa Kaplan and Rosemary Belson. Thanks for listening. I’m Mary Harris. I will catch you back here on Monday.